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Articles 121 - 150 of 165
Full-Text Articles in Law
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
University of San Diego Public Law and Legal Theory Research Paper Series
Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …
Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford
Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford
ExpressO
The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …
The Role Of Purposivism In The Delegation Of Rulemaking Authority To The Courts, Michael Rosensaft
The Role Of Purposivism In The Delegation Of Rulemaking Authority To The Courts, Michael Rosensaft
ExpressO
The courts are often used by Congress as a “political lightning rod,” when Congress cannot decide how to resolve an issue. Congress relies on administrative agencies for their expertise, and it also makes sense for Congress to delegate some rulemaking authority to the courts, relying on a court’s expertise in developing caselaw in an incremental basis. However, this authority should not be lightly implied. A court can tell that Congress has delegated rulemaking authority to it when the purpose of the statute is clear and the text is broadly worded. It thus makes sense in these cases that purposivism should …
Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis
Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis
ExpressO
Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.
This article explores …
The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas
The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Tools, Not Rules: The Heuristic Nature Of Statutory Interpretation, Morell E. Mullins Sr.
Tools, Not Rules: The Heuristic Nature Of Statutory Interpretation, Morell E. Mullins Sr.
Faculty Scholarship
No abstract provided.
First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben
First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben
Faculty Publications
This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First Options …
The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch
The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
What Do We Mean By "Judicial Independence"?, Stephen B. Burbank
What Do We Mean By "Judicial Independence"?, Stephen B. Burbank
All Faculty Scholarship
In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …
A Reply--The Missing Portion, Pierre Schlag
Law As Largess: Shifting Paradigms Of Law For The Poor, Deborah M. Weissman
Law As Largess: Shifting Paradigms Of Law For The Poor, Deborah M. Weissman
Deborah M. Weissman
The article examines the tension between the principles of the Rule of Law and cultural norms of self-sufficiency. It begins by reviewing the principles of the Rule of Law as an ideal, the pursuit of which has led to historical efforts to meet the legal needs of the poor. It then examines recent legal events including federal statutory changes, three Supreme Court cases, and a federal circuit court case which have limited legal resources for those who cannot pay. The article then examines these developments in the context of a sea-change in the political environment of the nation, coinciding with …
Juries, Justice And Multiculturalism, Nancy S. Marder
Juries, Justice And Multiculturalism, Nancy S. Marder
All Faculty Scholarship
No abstract provided.
Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch
Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch
All Faculty Scholarship
The lead counsel auction has attracted increasing attention. Auction advocates argue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is …
The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner
The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner
Faculty Articles
No abstract provided.
Interpretive Communities: The Missing Element In Statutory Interpretation, William S. Blatt
Interpretive Communities: The Missing Element In Statutory Interpretation, William S. Blatt
Articles
No abstract provided.
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Faculty Scholarship
Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …
The Architecture Of Judicial Independence, Stephen B. Burbank
The Architecture Of Judicial Independence, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Positivism And Antipositivism In Federal Courts Law, Michael Wells
Positivism And Antipositivism In Federal Courts Law, Michael Wells
Scholarly Works
What is the proper role of rules in federal courts law? Some scholars associated with the Legal Process assert that rules are unimportant here. They believe that the values of principled adjudication and reasoned elaboration should take precedence over the making and application of rules. The area is, in the jargon of jurisprudence, "antipositivist." Others maintain that rules do, or at any rate should, count heavily in federal courts' decisionmaking. In this Article, I argue that Legal Process scholars are right to spurn formalism in most parts of federal courts law. But the Legal Process model of federal courts law …
Justice Stephen Breyer: Purveyor Of Common Sense In Many Forums, Jeffrey Lubbers
Justice Stephen Breyer: Purveyor Of Common Sense In Many Forums, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
No abstract provided.
French And American Judicial Opinions, Michael Wells
French And American Judicial Opinions, Michael Wells
Scholarly Works
In this Article, I examine the foundations of American judicial form, in particular the proposition that powerful instrumental considerations support the issuance of reasoned opinions. This project proceeds from the belief that the form of judicial opinions deserves serious scholarly attention despite the broad consensus about its value, because it frames the terms of debate on every issue courts confront. My analysis is built on the view that critical insights into the nature of one's own legal system can be gleaned only by "understand[ing] what [one's] system is not," a task that requires putting aside the internal perspective of a …
A Note To Our Readers, The Editors
Consideration And Estoppel: Problem And Panacea, Bruce Macdougall
Consideration And Estoppel: Problem And Panacea, Bruce Macdougall
Dalhousie Law Journal
In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which lacks any …
The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel
The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel
Scholarly Works
No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …
Organizational Standing In Environmental Litigation, Jeanne A. Compitello
Organizational Standing In Environmental Litigation, Jeanne A. Compitello
Touro Law Review
No abstract provided.
The Pattern Of Racketeering Element Of Rico Liability, Committee On Federal Courts Of The New York State Bar Association
The Pattern Of Racketeering Element Of Rico Liability, Committee On Federal Courts Of The New York State Bar Association
Touro Law Review
No abstract provided.
Property Rights Of Unmarried Cohabitants In New York: Proposal For Legislative Action Towards A More Equitable Future, Helene Kulczycki
Property Rights Of Unmarried Cohabitants In New York: Proposal For Legislative Action Towards A More Equitable Future, Helene Kulczycki
Touro Law Review
No abstract provided.
Texas' New Trademark Antidilution Statute - Useful Or Useless New Protection For Texas Trademarks., Richard Taylor
Texas' New Trademark Antidilution Statute - Useful Or Useless New Protection For Texas Trademarks., Richard Taylor
St. Mary's Law Journal
Texas courts must set forth clear and concise guidelines for trademark antidilution enforcement. The adoption of a trademark antidilution statute substantially alters Texas trademark law. The statute allows a trademark owner to enjoin acts which dilute a registered or common law trademark’s distinctive quality. It applies whether competition exists between the parties or a likelihood of confusion exists as to the owner of the mark. The statute adds a new dimension to trademark protection in Texas because it creates a property interest in the trademark. As promising as these protections sound, the new antidilution statute may prove ineffective due to …
Attempting The Impossible: The Emerging Consensus, Ira Robbins
Attempting The Impossible: The Emerging Consensus, Ira Robbins
Articles in Law Reviews & Other Academic Journals
Impossible attempts are situations in which an actor fails to consummate a substantive crime because he is mistaken about attendant circumstances. Professor Robbins divides mistakes regarding circumstances into three categories: mistakes of fact, mistakes of law, and mistakes of mixed fact and law. Courts and commentators disagree primarily over the identification and treatment of mixed fact law cases. Professor Robbins surveys each category of mistake. He then examines the objective, subjective, and hybrid approaches to dealing with the mixed fact/law category. The objective approach requires an objective manifestation of the actor's intent before conviction is allowed. The subjective approach permits …
Attempting The Impossible: The Emerging Consensus, Ira P. Robbins