Law Commons^™

A Case Study On Court Of Appeals Finality, Michael J. Nolan

Michael J. Nolan

The article illustrates the New York Court of Appeals jurisdictional requirement of finality by tracing the history of a case in which leave to appeal was sought, and dismissed, 5 separate times.

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making …

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …

Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys

Todd E. Pettys

In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point for empirical …

"God Hates Fags" Isn't The Same As "Fuck The Draft": Introducing The Non-Sexual Obscenity Doctrine, Adam Lamparello

Adam Lamparello

No abstract provided.

Hall V. Florida: The Death Of Georgia's Beyond A Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Welcome: We’re Glad Georgia is On Your Mind.

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year …

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 …

The Rules Of Engagement, David D. Butler

David D. Butler

First impressions are the eye of the needle through which all subsequent threads are drawn. Zealous advocates take conrol of the Courtroom even before the prosecution is through the door. Get to the Courtroom first. Secure the table and chairs closer to the jury. Pick up all the chalk by the black board. When the befuddled county attorney is looking for a piece of chalk, hand him or her a nice new piece from the box you have in your attache case. Zealous advocates get to the Courtroom fiirst, with the most. Often, a zealous advocate can lift his or …

Breaking The Ice: How Plaintiffs May Establish Premises Liability In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not Visible Or Apparent To The Property Owner, Hon. Mark Dillon

Hon. Mark C. Dillon

Plaintiffs that are injured as a result of encounters with "black ice," as distinguished from regular ice, face peculiar difficulties in establishing liability against property owners for the dangerous icy conditions on their premises. Black ice results from a unique process under certain conditions by which air bubbles are expelled from water during the freezing process, rendering the ice virtually invisible to the naked eye. Property owners therefore are not typically on actual or constructive notice of black ice conditions as to become subject to the legal requirement of undertaking measures to remedy the conditions. This article explores the law …

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 …

Impropriety’S Invisible Hand: Judicial Race And Gender Biases Within State Supreme Courts, Robert K. Christensen, John Szmer, Anthony M. Kreis

Robert Christensen

No abstract provided.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Does De Jure Independence Really Matter?: A Reevaluation Of Explanations For Judicial Independence, Tom Ginsburg, James Melton

Tom Ginsburg

The relationship between de jure and de facto judicial independence is much debated in the literature on judicial politics. Some studies find no relationship between the formal rules governing the structure of the judiciary and de facto judicial independence, while others find a tight correlation. This article sets out to reassess the relationship between de jure and de facto judicial independence using a new theory and an expanded data set. De jure institutional protections, we argue, do not work in isolation but work conjunctively, so that particular combinations of protections are more likely to be effective than others. We find …

Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.

Brannon P. Denning

In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their …

Activismo Judicial. Un Marco Para La Discusión, Sergio Verdugo Sverdugor@Udd.Cl, José Francisco García

Sergio Verdugo R.

No abstract provided.

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

Overruling Precedent: "A Derelict In The Stream Of The Law", Michael Leroy

Michael H LeRoy

Will the Supreme Court overrule Hoffman Plastic Compounds v. N.L.R.B., 535 U.S. 137 (2002), its precedent that treats unlawful alien workers as criminals and denies them backpay for a violation of a labor law? More generally, what are the statistical indicators of a precedent that the Supreme Court overrules— and how well does Hoffman Plastic fit that profile? To answer these research questions, I analyze two unique databases— 128 federal and state rulings from 2002-2012 that involved Hoffman Plastic’s remedy issue, and a sample of 154 Supreme Court pairings of an overruled precedent, and the decision that explicitly …

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …

Much Ado About Nothing?: What The Numbers Tell Us About How State Courts Apply The Unconscionability Doctrine, Susan D. Landrum

Susan Landrum

No abstract provided.

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …