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Articles 1 - 30 of 82
Full-Text Articles in Law
City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello
City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello
Adam Lamparello
Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question—and the proverbial elephant in the room—is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway. Put differently, a hotel owner’s expectation of privacy in a guest registry …
Alternative Dispute Resolution In U.S. Bankruptcy Practice, Jacob A. Esher
Alternative Dispute Resolution In U.S. Bankruptcy Practice, Jacob A. Esher
University of Massachusetts Law Review
The use of ADR in bankruptcy cases, while firmly established in concept across the nation, has been realized in a minority of jurisdictions. Mediation training of judges, lawyers and professionals of other disciplines, together with the continued development of ADR programs, is necessary to achieve the vision of a judicial system in which both adjudicative and non-adjudicative, or negotiative, dispute resolution services are available to all parties in all cases.
The Legacy Of Anthony M. Kennedy, Adam Lamparello
The Legacy Of Anthony M. Kennedy, Adam Lamparello
Adam Lamparello
The defining moments in Justice Kennedy’s tenure on the Court came in Planned Parenthood, Lawrence, and United States v. Windsor, where the Court did to the Constitution—in the name of liberty—what it also did—in the name of democracy—to Florida’s citizens in Bush v. Gore. In all three cases, Justice Kennedy’s reliance on a broad conception of liberty, rather than equal protection principles, shifted the balance too heavily in favor of judicial, rather democratic, creation of unenumerated fundamental rights.
Justice Kennedy will rightly be celebrated for safeguarding reproductive freedom and championing sexual autonomy for same-sex couples, but underneath the black …
Is It Law Or Something Else?: A Divided Judiciary In The Application Of Fraudulent Transfer Law Under § 546(E) Of The Bankruptcy Code, Jaclyn Weissgerber
Is It Law Or Something Else?: A Divided Judiciary In The Application Of Fraudulent Transfer Law Under § 546(E) Of The Bankruptcy Code, Jaclyn Weissgerber
Pace Law Review
In Part I of this Note, I will provide a general overview of leveraged buyouts. The discussion of how and why LBOs are implemented is particularly relevant to the application of fraudulent transfer analysis. In Part II, I will discuss fraudulent transfer law as defined by the Bankruptcy Code. In Part III, I will discuss which transfers within the LBO should be attacked under fraudulent transfer law and why; this section will focus on the various stakes of the parties involved in the leveraged buyout transaction. I will provide an overview of the specific factors that bankruptcy and federal appellate …
The Use And Abuse Of Humanistic Theory In Law: Reexamining The Assumptions Of Interdisciplinary Legal Scholarship, Charles Collier
The Use And Abuse Of Humanistic Theory In Law: Reexamining The Assumptions Of Interdisciplinary Legal Scholarship, Charles Collier
Charles W. Collier
No abstract provided.
Supreme Court, Bronx County, People V. Butler, Courtney Weinberger
Supreme Court, Bronx County, People V. Butler, Courtney Weinberger
Touro Law Review
No abstract provided.
Combating Terrorism With The Alien Terrorist Removal Court, Jonathan Yu
Combating Terrorism With The Alien Terrorist Removal Court, Jonathan Yu
Jonathan Yu
No abstract provided.
Judging In The Age Of Technology, Fredric I. Lederer
Judging In The Age Of Technology, Fredric I. Lederer
Popular Media
No abstract provided.
The Maine Idea, Nancy Bellhouse May
The Maine Idea, Nancy Bellhouse May
The Journal of Appellate Practice and Process
No abstract provided.
Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon
Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon
Marquette Law Review
This Essay highlights the evolving institutional changes in the federal judiciary—a protracted confirmation process, higher caseload demands, and declining real salaries—in concurrence with evidence suggesting greater reliance by judges on their law clerks when writing opinions. These dynamic forces arguably undermine the integrity of the judicial process and counsel for legislative action to address judicial working conditions or for changes by judges in the hiring of law clerks.
A Truth About Career Law Clerks, Joseph D. Kearney
Keynote Address: Secret Agents: Using Law Clerks Effectively, David R. Stras
Keynote Address: Secret Agents: Using Law Clerks Effectively, David R. Stras
Marquette Law Review
Recent scholarship discusses the role of law clerks and their role in influencing the courts on which they work. This Keynote Address discusses the nuts and bolts of law clerks, including how they are selected, what role they play on various courts, and their potential opportunities for influence.
Surgeons Or Scribes? The Role Of United States Court Of Appeals Law Clerks In "Appellate Triage", Todd C. Peppers, Micheal W. Giles, Bridget Tainer-Parkins
Surgeons Or Scribes? The Role Of United States Court Of Appeals Law Clerks In "Appellate Triage", Todd C. Peppers, Micheal W. Giles, Bridget Tainer-Parkins
Marquette Law Review
none
Hiring Supreme Court Law Clerks: Probing The Ideological Linkage Between Judges And Justices, Lawrence Baum
Hiring Supreme Court Law Clerks: Probing The Ideological Linkage Between Judges And Justices, Lawrence Baum
Marquette Law Review
Since the 1970s, the overwhelming majority of Supreme Court law clerks have had prior experience clerking in lower courts, primarily the federal courts of appeals. Throughout that period, there has been a tendency for Justices to take clerks from lower court judges who share the Justices’ ideological tendencies, in what can be called an ideological linkage between judges and Justices in the selection of law clerks. However, that tendency became considerably stronger between the 1970s and 1990s, and it has remained very strong since the 1990s.
This Article probes the sources of that alteration in the Justices’ selection of law …
Panel Discussion: Judges' Perspectives On Law Clerk Hiring, Utilization, And Influence, David R. Stras, Diane S. Sykes, James A. Wynn Jr.
Panel Discussion: Judges' Perspectives On Law Clerk Hiring, Utilization, And Influence, David R. Stras, Diane S. Sykes, James A. Wynn Jr.
Marquette Law Review
none
The Forms And Limits Of Judicial Inquiry: Judges As Inquiry Commissioners In Canada And Australia, Grant R. Hoole
The Forms And Limits Of Judicial Inquiry: Judges As Inquiry Commissioners In Canada And Australia, Grant R. Hoole
Dalhousie Law Journal
In both Canada and Australia the conduct ofpublic inquiries draws heavily from the expertise of the legal profession, with judges frequently serving as commissioners and inquiry hearings often reproducing the popular imagery of a courtroom. Despite this affinity between public inquiries and the legal profession, however, jurisprudential and academic authorities repeatedly stress that public inquiries are non-adjudicative. Indeed, the received wisdom is that the investigative focus of public inquiries justifies their divergence from the procedural and substantive commitments of adjudication. This paper challenges that assumption. It argues that the service of judges as inquiry commissioners should be premised on their …
Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco
Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco
Articles & Book Chapters
The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …
Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson
Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson
Akron Law Faculty Publications
With globalization and the proliferation of international commercial interaction, U.S. courts commonly encounter issues governed by the laws of other sovereigns. These encounters arise by virtue of private agreements or choice-of-law rules covering contractual relationships, cross-border conduct, tortuous acts, employment matters, intellectual property rights, and various other legal foundations. Because the substantive law applied in an international lawsuit can be outcome-determinative, it is important to accurately ascertain and determine the relevant law. In fact, the proper functioning of private international law in a domestic system is based on the appropriate application of law.
U.S. federal and state courts are presumed …
Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill
Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill
David S Caudill
In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, this Article observes that courts (in the cases it analyzes) are not interested …
Judicial Campaign Financing: An Ever Present Threat To Judicial Independence, Sarah J. Morath
Judicial Campaign Financing: An Ever Present Threat To Judicial Independence, Sarah J. Morath
Akron Law Faculty Publications
The different processes by which state judges are selected is an increasingly popular topic for discussion amongst legal scholars and practitioners. While many law review articles and discussions advocate for one method of judicial selection over the other, this article addresses one specific and significant concern with the elective method: campaign financing.2 As this article explains, campaign financing can impair judicial independence and inhibit fair and impartial decisions. Fortunately, the appointive system is insulated from the pressures and problems associated with campaign financing, a benefit which is all the more evident today when everyone, including judges, face difficult economic times. …
With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello
With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello
Adam Lamparello
Record numbers of Americans are renouncing their citizenship. California’s citizens have amassed enough signatures to place on the 2016 ballot a proposal to divide California into six separate states. At least 34 states recently called for a second constitutional convention. Several states have ignored or enacted laws defying Supreme Court precedent. One has threatened to secede. Former Supreme Court Justice John Paul Stevens has responded to this crisis by calling for the addition of six constitutional amendments, several of which expand federal authority. That, in a nutshell, is the problem. This Article argues that, to remedy the imbalance in power …
A Case For The Recognition Of A Concept Of Judge-Made International Law, Theodor Jr Schilling
A Case For The Recognition Of A Concept Of Judge-Made International Law, Theodor Jr Schilling
Theodor JR Schilling
Judge-made international law (JMIL) based on a law of reason exists as well in some municipal court decisions setting a precedent as in ones building upon such a precedent. Such court decisions rely on the faculty of judicial borderline institutions to decide against normally binding customary international law (CIL). This implies for the first group that they may positivise a law of reason, and for the second group they may defer to thus positivised laws of reason, both irrespective of contrary CIL. Norms of JMIL and of CIL are determined according to different secondary rules. Therefore, court decisions which are …
Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma E. Marouf
Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma E. Marouf
Fatma E Marouf
This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and procedural …
Shame, Angry Judges, And The Social Media Effect, Maxine D. Goodman
Shame, Angry Judges, And The Social Media Effect, Maxine D. Goodman
Catholic University Law Review
No abstract provided.
Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper
Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper
Casey J Cooper
The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …
The Road Paved With Gravel: The Encroachment Of South Carolina's Judiciary Through Legislative Judicial Elections, Samantha R. Wilder
The Road Paved With Gravel: The Encroachment Of South Carolina's Judiciary Through Legislative Judicial Elections, Samantha R. Wilder
South Carolina Law Review
No abstract provided.
Families Matter: Recommendations To Improve Outcomes For Children And Families In Court, Barbara A. Babb, Gloria Danziger
Families Matter: Recommendations To Improve Outcomes For Children And Families In Court, Barbara A. Babb, Gloria Danziger
All Faculty Scholarship
The Families Matter initiative was designed as a major, multi-year undertaking to develop legal practice methods and approaches to reduce the destructive consequences of the family legal process. The initiative was intended to respond to the need for deep and meaningful reform of the family law process.
Convened in June 2010 by the University of Baltimore School of Law Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC), the Families Matter Symposium brought together an interdisciplinary group of family law experts for two days at the University of Baltimore to identify problems regarding the practice of family …
Here’S Some Malarkey: Judges Are Umpires, Alan E. Garfield
Here’S Some Malarkey: Judges Are Umpires, Alan E. Garfield
Alan E Garfield
No abstract provided.
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …