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Articles 1 - 30 of 33
Full-Text Articles in Law
What Do We Mean By An Independent Judiciary, Michael P. Seng
What Do We Mean By An Independent Judiciary, Michael P. Seng
Michael P. Seng
Judicial independence has roots in separation of powers and in ethical standards that require judges to be competent and impartial. Judicial independence depends upon society having faith in the integrity of the courts. Accountability is thus the handmaid of an independent judiciary. This article defines both the structure and the ethical standards that insure an independent judiciary.
Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss
Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss
David Sloss
In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. …
An Empirical Study Of Settlement Conference Nuts And Bolts: Settlement Judges Facilitating Communication, Compromise And Fear, Peter R. Robinson
An Empirical Study Of Settlement Conference Nuts And Bolts: Settlement Judges Facilitating Communication, Compromise And Fear, Peter R. Robinson
Peter R. Robinson
No abstract provided.
Statutory Interpretation & The Presidency: The Hierarchy Of “Executive History”, Faye Jones, Alvan Balent
Statutory Interpretation & The Presidency: The Hierarchy Of “Executive History”, Faye Jones, Alvan Balent
Faye E Jones
It is common knowledge that the New Deal fundamentally remade America because after the New Deal, Americans began looking to the federal government to solve their problems. This increased public interest in the national government prompted major changes in each branch of the government. The Executive branch, for instance, became the most prominent branch of the federal government, and the President consequently began exerting himself in all aspects of the government including lawmaking. Congress began to pass more legislation, and thus the federal judiciary’s docket became filled with statutory interpretation cases. However, when interpreting statutes, the judiciary has largely disregarded …
Live Hearings And Paper Trials, Mark Spottswood
Live Hearings And Paper Trials, Mark Spottswood
Mark Spottswood
This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review …
Constitutional Pathology, The War On Terror, And United States V. Klein, Howard M. Wasserman
Constitutional Pathology, The War On Terror, And United States V. Klein, Howard M. Wasserman
Howard M Wasserman
In The Irrepressible Myth of Klein (UNIVERSITY OF CINCINNATI LAW REVIEW, 2010) I discuss the meaning, scope, and continued relevance of the Supreme Court's historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless domestic surveillance) and the Military Commissions Act …
Seeing The Forest For The Trees: The Transaction Or Occurrence And The Claim Interlock Civil Procedure, Douglas D. Mcfarland
Seeing The Forest For The Trees: The Transaction Or Occurrence And The Claim Interlock Civil Procedure, Douglas D. Mcfarland
Douglas D. McFarland
The article traces the transaction or occurrence and the claim through various joinder (cross-claims, permissive joinder of parties, rule 14 claims), pleading (claims, separate counts, relation back of amendments), and interlocutory appeal (54(b))rules to the following conclusion. Since courts have struggled with the proper fact-based definition of claim and transaction or occurrence when they interpret individual rules in individual cases, we should not be surprised that courts and commentators have been reluctant to recognize the commonality of these concepts throughout the rules. “Claim” has been interpreted differently in different contexts. “Transaction or occurrence” has been interpreted differently in different contexts. …
Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy
Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy
Michael H LeRoy
Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?
Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …
The Partisan Dimensions Of Federal Preemption In The United States Courts Of Appeals, Bradley Joondeph
The Partisan Dimensions Of Federal Preemption In The United States Courts Of Appeals, Bradley Joondeph
Bradley W. Joondeph
This paper explores some of these empirical uncertainties surrounding the political dimensions of preemption in the federal courts. More concretely, it presents a statistical study of every preemption decision rendered by the United States Courts of Appeals from January 1, 2005, to December 31, 2009, a total of 560 decisions and just over 1,700 judicial votes. And these data tell a story consisting of two distinct parts. The first part is that preemption disputes seem to produce a large measure of judicial consensus. In the full universe of cases, there is only a slight difference between Republican and Democratic appointees: …
Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe
Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe
Alan W Moe Jr
Censorship has always been a polemical area of constitutional law. The controversy is further amplified when administrative agencies deal with sensitive areas of constitutional liberties. In FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1807 (2009), the U.S. Supreme Court dealt with an important issue of constitutional law and its intersection with the standard of judicial review for administrative agencies’ actions. In this case, the Court upheld the Federal Communications Commission’s about-face on its relatively conservative approach to the censorship of broadcasts for reasons of indecency in 2004. The FCC applied against Fox Television Stations its new policy of …
Teaching Professional Ethics To Lawyers And Mediators Using Active Learning Techniques, Paula M. Young
Teaching Professional Ethics To Lawyers And Mediators Using Active Learning Techniques, Paula M. Young
Paula Marie Young Prof.
Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson
Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson
Erika K. Wilson
While much attention is paid to issues of segregation and inequality in education, little attention is paid to the role that school district boundary lines play in creating segregation and inequality in education. Living on one side of a school district boundary line rather than another can mean the difference between being able to attend a high achieving resource enriched school or having to attend a low achieving, resource deprived school. Nevertheless, the federal judiciary--the institution looked upon to remedy issues of school segregation and inequality--is unable to adequately remedy segregation and inequality between school districts because it evidences a …
Is The United States Tax Court Exempt From Administrative Law Jurisprudence When Acting As A Reviewing Court?, Diane Fahey
Is The United States Tax Court Exempt From Administrative Law Jurisprudence When Acting As A Reviewing Court?, Diane Fahey
Diane L. Fahey
To maintain legitimacy and stability, a government must have access to a reliable source of revenue. Taxes are the lifeblood that sustains a government. Therefore, as far back as 1931, the United States Supreme Court has enforced the principle that the executive branch of the federal government must be unimpaired in its ability to collect taxes owed; otherwise, the government could be undermined by citizens who attempt to delay or evade their obligation to pay taxes.
Taxpayers have always been permitted to dispute the amount of their liability; however, until recently, taxpayers had little opportunity to dispute the method employed …
Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson
Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson
Kip D Nelson
No abstract provided.
The Irrepressible Myth Of Klein, Howard M. Wasserman
The Irrepressible Myth Of Klein, Howard M. Wasserman
Howard M Wasserman
The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …
Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin
Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin
Michael L Perlin
Scholars have begun to consider the impact of neuroimaging evidence on capital punishment trials, questioning whether reliance on such testimony can actually make “sentencing more rational and humane.” They have also considered the impact of this evidence on criminal sentencing, expressing concern that such evidence will be improperly used “as predictive factors to increase sentences,” and counseling policymakers to “avoid misuse of new techniques.” In an earlier article on neuroimaging and criminal procedure, I considered the questions of a criminal defendant’s competency to submit to neuroimaging testing, and the impact of antipsychotic medications on the results of such testing.
What …
Legislative Rules, Nonlegislative Rules, And The Perils Of The Short Cut, David L. Franklin
Legislative Rules, Nonlegislative Rules, And The Perils Of The Short Cut, David L. Franklin
David L. Franklin
Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exempted from notice and comment. The distinction has been called “tenuous,” “baffling,” and “enshrouded in considerable smog.”
What is just as baffling is that prominent commentators such as John Manning, Peter Strauss, William Funk and Donald Elliot have proposed a simple solution to the problem—and courts have failed to take them up on it. Rather than inquiring into …
The Structural Safeguards Of Federal Jurisdiction, Tara L. Grove
The Structural Safeguards Of Federal Jurisdiction, Tara L. Grove
Tara L. Grove
Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …
Cultural Cognition At Work, Paul Secunda
Cultural Cognition At Work, Paul Secunda
Paul M. Secunda
Cultural cognition theory provides an anthropological and psychological-based theory about how values actually influence judicial decisionmaking. It suggests that values act as a subconscious influence on cognition rather than as a self-conscious motive of decision-making.
Applying these insights to two controversial United States Supreme Court labor and employment decisions, this Article contends that judges in many instances are not fighting over ideology, but rather over legally-consequential facts. This type of disagreement is particularly prevalent in labor and employment law cases where the factual issues that divide judges involve significant uncertainty and turn on inconclusive evidence.
This distinction between ideology and …
Patent Law And The Two Cultures, Peter Lee
Patent Law And The Two Cultures, Peter Lee
Peter Lee
A half century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, this Article addresses challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. It first argues that technological subject matter imposes significant cognitive burdens on generalist judges. It then explores the “cognitive miser” model whereby lay persons adopt heuristics and defer to expertise to limit their engagement with technology. Drawing from …
An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee Strang
An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee Strang
Lee J Strang
In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory.
First, I briefly review the debate in originalism over the role of constitutional precedent.
Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist …
Resolving Cases On The Merits, Jay Tidmarsh
Resolving Cases On The Merits, Jay Tidmarsh
Jay Tidmarsh
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
Balancing The Rights Of The Public With The Jurors' Right To Privacy During The Jury Selection Process, Stephen A. Gerst
Balancing The Rights Of The Public With The Jurors' Right To Privacy During The Jury Selection Process, Stephen A. Gerst
Stephen A Gerst
It is rare for a trial judge hearing a criminal case to receive a motion to intervene filed by third parties not named in the proceedings. In the jury selection process of cases involving high profile defendants, however, the public - including the press - has a heightened interest in the proceedings. At the same time, the trial judge may have a heightened interest in the protection of juror privacy. This article discusses the issue of when and under what circumstances a trial court may close proceedings to the public during the jury selection process and seal the written responses …
Answering Jurors' Questions: Next Steps In Illinois (2010) (Symposium), Nancy S. Marder
Answering Jurors' Questions: Next Steps In Illinois (2010) (Symposium), Nancy S. Marder
Nancy S. Marder
No abstract provided.
Restructuring Proposal For The Criminal Division Of The Circuit Court Of Cook County, Daniel T. Coyne
Restructuring Proposal For The Criminal Division Of The Circuit Court Of Cook County, Daniel T. Coyne
Daniel T. Coyne
No abstract provided.
Pro-Prosecution Judges: "Tough On Crime," Soft On Strategy, Ripe For Disqualification, Keith Swisher
Pro-Prosecution Judges: "Tough On Crime," Soft On Strategy, Ripe For Disqualification, Keith Swisher
Keith Swisher
In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the "groundbreaking" Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called "tough on crime") campaigns and attendant electoral pressures. Building on this description and the work of empiricists, …
Amicus Brief, First American Financial Corp. V. Edwards, No. 10-708, Scott Dodson
Amicus Brief, First American Financial Corp. V. Edwards, No. 10-708, Scott Dodson
Scott Dodson
No abstract provided.
O'Connell V. Chapman Univ., No. 10-810, Scott Dodson
O'Connell V. Chapman Univ., No. 10-810, Scott Dodson
Scott Dodson
No abstract provided.
Justice Souter And The Civil Rules, Scott Dodson
Justice Souter And The Civil Rules, Scott Dodson
Scott Dodson
Justice Souter’s recent retirement from the Court after nearly twenty years presents a unique opportunity to comment on his legacy. No doubt others will eulogize or castigate him for his membership in the Planned Parenthood v. Casey troika, but there is much more to the man and his jurisprudence. Indeed, the danger is that Justice Souter will be pigeonholed into one opinion, an opinion that he wrote early in his Supreme Court career, to the detriment of understanding the complex justice that he was. This short essay therefore analyzes a unique set of opinions—those that he authored on the federal …
New Pleading, New Discovery, Scott Dodson
New Pleading, New Discovery, Scott Dodson
Scott Dodson
Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual sufficiency often is a poor proxy for meritlessness. Some plaintiffs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …