Law Commons^™

Policy Evaluation Of Hillsborough County’S Family Dependency Treatment Court, Shawn M. Martin, Kathleen A. Moore

Kathleen A Moore

Child abuse and neglect is a troubling issue all too familiar with courts in the United States. The problem becomes even more complicated when substance abuse is involved. In 2004, approximately 500,000 children were removed from their homes because of abuse and neglect issues1. In the past few years, a judicial model appeared to address both substance abuse and child dependency issues. This model, entitled Family Dependency Treatment Court (FDTC) enables the court to mandate treatment for parents and make reunification dependent on treatment compliance. The FDTC program in Hillsborough County, Florida is now in its second year and has …

Dukes V. Wal-Mart: A New Interpretation Of The Class-Action Model, Mark Fischer

Mark Fischer

Dukes V. Wal-Mart: A New Interpretation of the Class-Action Model By: Mark Fischer TABLE OF CONTENTS Dukes v. Wal-Mart: A New Interpretation of the Class-Action Model Page Introduction……………………………………………………………………………………..1 Background……………………………………………………………………………………..2 Federal Rule of Civil Procedure 23……………………………………………………..............5 I. Commonality………………………………………………………………………….6 II. Typicality…………………………………………………………………………….7 Due Process Concerns…………………………………………………………………..............8 Impermissible Predomination of Monetary Claims over Claims for Declaratory and Injunctive Relief…………………………………………………………………………………………....9 Ninth Circuit Panel Dissenting Opinion………………………………………………………...9 Wal-Mart’s Response: Petition for Rehearing En Banc……………………………………….12 I. Application of Rule 23……………………………………………………………....12 II. Plaintiff’s Lack of Article III Standing……………………………………………..16 III. Title VII and Due Process Impact of the Panel’s Ruling………………………….17 Dukes’ Trickle-Down Effect on Corporate America…………………………………………..19 Conclusion…………………………………………………………………………………......20 TABLE OF AUTHORITIES Page(s) …

Illegal Immigration And The Southwest Border District Courts, Thomas J. Bak

Thomas J. Bak

Abstract This paper examines the increase in immigration filings in federal district courts in the southwest United States during the period from 1993 through 2005, a time when the Border Patrol and U.S. Attorneys in southern California, Arizona, New Mexico, and Texas stepped up enforcement of U.S. immigration laws. It follows the shift in the tide of immigration cases from the Southern District of California (CA,S), eastward, as successive initiatives in different Border Patrol sectors continually diverted the flow of illegal immigrants. A mathematical model is used to show the strong correlation between immigration case filings and Border Patrol staffing, …

Does Australia Have A Constitution? Part I -- The Powers Constitution, Howard Schweber, Ken Mayer

Howard Schweber

The conventional wisdom about the Australian Constitution is that it neither says what it means, nor means what it says. The gap between language and meaning is starkest in the sections on executive power, in which the explicit language vesting all executive power in the Governor-General is supplanted by the conventions of Responsible Government, according to a universally accepted view of what the constitutional framers intended to create. One consequence of this divergence between language and practice is that constitutional interpretation normally requires a series of finesses, in which much of the text is read out of the document entirely. …

From Incitement To Indictment? Prosecuting Iran's President For Advocating Israel's Destruction And Piecing Together Incitement Law's Emerging Analytical Framework, Gregory S. Gordon

Gregory S. Gordon

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators argue that these speeches constitute direct and public incitement to commit genocide. This Article analyzes these arguments by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. For the first time in the legal literature, the Article pieces together an analytical framework based on principles derived from …

The Foreign Sovereign Immunities Act: Using A "Shield" Statute As A "Sword" For Obtaining Federal Jurisdiction In Art And Antiquities Cases, Lauren F. Redman

Lauren F Redman

This paper examines the emergence of art and antiquities restitution cases being brought in U.S. federal courts under the FSIA. The purpose of the paper is twofold. First, it aims to serve as a compendium of the major art and antiquities restitution cases brought under the FSIA up to this point. In addition, it examines several questions concerning the appropriateness of the FSIA being used in the way it has been in the context of the art cases. Have the jurisdiction granting provisions springing from the exceptions to the FSIA eclipsed the primary purpose of foreign sovereign immunity, which is …

Originalism And The Problem Of Fundament Fairness, R. George Wright

R. George Wright Professor

Originalism is perhaps the most prominent theory of how to interpret the Constitution. Originalism, however, rests upon a process of constitutional drafting and ratification that systematically excluded important demographic groups. Originalism thus rests on a fundamental injustice. Crucially, this fundamental injustice is not confined to the past once the various excluded groups gain the franchise. Originalist theories remain crucially tainted and skewed, particularly with respect to constitutional questions on which originally excluded groups had interests diverging from those of non-excluded groups. The continuing effects of the fundamental unfairness of the constitutional drafting and ratifying process are explored through considering the …

Is That All There Is?: "The Problem" In Court-Oriented Mediation, Nancy A. Welsh, Leonard L. Riskin

Nancy A Welsh

The “alternative” process of mediation is now well-institutionalized in the courts and widely (though not universally) perceived to save time and money and satisfy lawyers and litigants. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand “the problem” to be addressed in personal injury, employment, contract, medical malpractice and other civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that …

United States Implementation Of The International Criminal Court: Towards The Federalism Of Free Nations, Lauren F. Redman

Lauren F Redman

The political winds are changing, and a more liberal United States government may very well be receptive to ratification of the Rome Statute of the International Criminal Court. The nature and scope of international law are also changing. Individuals are sharing responsibility with states for grave breaches of international law, and globalization has resulted in a marked increase in international tribunals deciding disputes affecting individual interests. Despite these trends, Americans have been wary of the International Criminal Court (ICC).

Federal courts principles borrowed from the legal process school can and should be implemented to govern relations between ICC and domestic …

“Manifest” Destiny?: How Some Courts Have Fallaciously Come To Require A Greater Showing Of Congressional Intent For Jurisdictional Exhaustion Than They Require For Preemption, Colin Miller

Colin Miller

Abstract for Colin Miller, “Manifest” Destiny?: How Some Courts Have Fallaciously Come To Require A Greater Showing Of Congressional Intent For Jurisdictional Exhaustion Than They Require For Preemption Congress engages in preemption when it enacts federal legislation that supersedes any existing state and local laws in a particular field and proscribes any future state and local regulation of that field. Because preemption repeals state and local legislative authority over traditional areas of state law, courts have understandably required that preemptive legislation evince “clear and manifest” Congressional intent to supersede state and local legislation. Conversely, when Congress includes a jurisdictional exhaustion …

What Weyerhaeuser Suggests For Punitive Damages, Nickolai G. Levin

Nickolai G. Levin

In Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 127 U.S. 1069 (2007), the Supreme Court addressed the antitrust claim of “predatory bidding”—i.e., that a manufacturer paid too much for an “input.” Although the Ninth Circuit allowed predatory-bidding liability to be based on the jury’s subjective estimation that the defendant paid more than “necessary” for an input, the Supreme Court reversed, holding that the objective, two-part “predatory pricing” test from Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), should govern predatory-bidding claims instead. Otherwise, the Court explained, there would be a serious risk of chilling procompetitive …

Liberal Justices' Reliance On Legislative History: Principle, Strategy, And The Scalia Effect, James J. Brudney

James J. Brudney

Abstract for “Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect”

This article conducts an in-depth examination of Supreme Court Justices’ reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.

First, the article presents a powerful case against the conventional wisdom that legislative history is a “politicized” resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions—if true—should find ample support in the majority opinions of liberal Supreme Court Justices …

The Cash Value Of Courts, Frank B. Cross

Frank B Cross

There is strong theoretical and historical reason to believe that judicial systems are an important determinant of economic wellbeing. Numerous empirical studies have now found that a measure typically called “rule of law” is associated with economic growth and other variables of interest. I conclude that the best broad “rule of law” scale is that of the World Bank Governance Matters and the best available scale for the judiciary alone is the World Economic Forum’s judicial independence metric. My analysis also shows that both these scales have a remarkably large effect on economic growth, limiting corruption, and constraining the size …

Doctrine Formulation And Distrust, Toby J. Heytens

Toby J Heytens

Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts, but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases. Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts “comply” with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance. This Article argues that part of the answer lies in the Court’s ability to craft legal …

Three Faces Of Deference, Paul Horwitz

Paul Horwitz

Deference – the substitution by a decision maker of someone else’s judgment for its own – is a pervasive tool of constitutional doctrine. But although it has been studied at more abstract levels of jurisprudence and at very specific doctrinal levels, it has received surprisingly little general attention in constitutional scholarship. This Article aims to fill that gap.

This Article makes three primary contributions to the literature. First, it provides a careful examination of deference as a doctrinal tool in constitutional law, and offers a taxonomy of deference. In particular, it suggests that deference can best be understood as relying …

Where Lies The Emperor's Robe? An Inquiry Into The Problem Of Judicial Legitimacy, Gregory C. Pingree

Gregory C. Pingree

Gregory C. Pingree Article Abstract

Where Lies the Emperor’s Robe?

An Inquiry Into The Problem of Judicial Legitimacy

Today the American judiciary is, by any reasonable assessment, under attack. In politicians’ pious calls for religious retribution in response to controversial judicial decisions (e.g., in the Terri Schiavo case); in recent state ballot initiatives calling for “Jail-4 Judges” who don’t render decisions ideologically satisfactory to some groups; in the embattled and nearly intractable confirmation process for federal judges; and certainly in the wake of Bush v. Gore, which left many Americans convinced that the judiciary is not the impartial branch it …

Foreign Plaintiffs, Forum Non Conveniens, And Consistency, Andrew R. Klein

Andrew R Klein

Few topics inspire more debate than globalization. Yet, despite controversy, a more integrated global economy seems inevitable. As former United Nations Secretary General Kofi Annan has stated, “arguing against globalization is like arguing against the laws of gravity.”

One consequence of globalization is an increased likelihood that a person will suffer harm caused by the conduct of an entity based outside her own country. This, in turn, can lead to a victim seeking compensation far from home. The trend is evident in the United States, where an increasing number of foreign plaintiffs are seeking relief based on events that took …

The Universal Declaration Of Human Rights At Sixty: Is It Still Right For The United States?, Tai-Heng Cheng

Tai-Heng Cheng

Many scholars and human rights advocates have hailed the Universal Declaration of Human Rights as a triumph for the human rights movement. The occasion of its sixtieth anniversary in 2008 provides pause to appraise if in fact it has been a success and whether it still is of any value to the United States. To conduct such an appraisal, this article reviewed the contemporaneous records of negotiations leading to the adoption of the Declaration by the UN General Assembly. It also reviewed the decisions of U.S. federal and state courts, the International Court of Justice, and Australian courts that have …

The Reagan Revolution In The Network Of Law, Frank B. Cross

Frank B Cross

This paper analyzes the effect of the Rehnquist Court on Supreme Court precedent, using a network of all Court citations to other Supreme Court cases. Network analysis enables a study of the Court’s use of precedent that may not be readily visible from case-by-case reviews. We find that the Rehnquist Court has made a dramatic alteration in the network of precedent and, in the process, set the stage for a potentially revolutionary change in the makeup of the law. This may be very much the effect contemplated by the Reagan Administration in its effort to remake the composition of the …

Remitting The Remittitur, Mark G. Haug, Devon J. Steinmeyer

mark g haug

The purpose of this article is a review of the statistical analysis performed by Judge Jack B. Weinstein in Geressy v. Digital Equipment Corp. in determining whether damages awarded by a jury were excessive under New York’s statutory “material deviation” standard. Despite a concern that the sample population was materially skewed, Judge Weinstein based his analysis upon a normal (“bell”) curve and determined that the award was a material deviation. In this article, we examine the methodology of Judge Weinstein’s analysis and accept his invitation to make refinements that will improve the level of confidence that may be placed on …

If You Could Read My Mind: Implications Of Neurological Evidence For Twenty-First Century Criminal Jurisprudence, John G. New

John G. New

The advent of new technologies has permitted cognitive neuroscientists to explore the neural mechanisms underlying deceptive behaviors. Lawyers and law enforcement entities have shown great interest in exploring the legal consequences of employing such technologies; indeed such interest extends back to the days of phrenology and the advent of polygraphy. This article recounts current advances in the development of “truth telling” technologies, particularly functional magnetic resonance imaging (fMRI) and Brain Fingerprinting and recent attempts to introduce the latter into court as scientific evidence. The second part of the article explores the challenges to constitutional jurisprudence, especially to the Fifth and …

Judicial Decisions As Legislation, Nancy C. Staudt, Jason O'Connor, Rene Lindstaedt

Nancy C Staudt

This article provides a new understanding of the Court-Congress dynamic. It responds to an important literature that for several decades now has misconstrued inter-branch relations as fraught with antagonism, hostility, and distrust. This unfriendly dynamic, it is argued, is evidenced by the repeated congressional overrides of Supreme Court cases. This claim, while true in some circumstances, ignores the friendly relations that exist between these two branches of government—relations that may be far more typical than scholars suspect. In this article, Professors Staudt, Lindstaedt, and O’Connor undertake a comprehensive study of congressional responses to Supreme Court cases and make a surprising …

Judges As Humans, Chad M. Oldfather

Chad M Oldfather

This is a review of Judges and Their Audiences: A Perspective on Judicial Behavior, by Lawrence Baum. Among the reasons this book is notable is that it draws heavily on social psychology in critiquing and suggesting modifications to the standard political science accounts of judicial behavior. In that regard it represents a substantial step toward the development of a comprehensive, cross-disciplinary picture of judicial behavior. In the review, I argue that Baum’s analysis is important not only for its own sake, but also because consideration of institutional reforms of the sort that have been and will continue to be proposed …

Trial And Error - Balancing The Scales Of Justice Through The Doctrines Of Stare Decisis And Ex Proprio Motu, Antonin I. Pribetic

Antonin I. Pribetic

Many will be familiar with the legal axiom: Great cases, like hard cases, make bad law. This comment addresses the obverse: Bad cases, like ordinary cases, make hard law. Put another way, to what extent should a judge or appellate court be bound by the doctrine of stare decisis when confronted with a legal precedent which is incorrect?

The Judicial Restraint Of The Warren Court (And Why It Matters), Rebecca E. Zietlow

Rebecca E Zietlow

Abstract: The Judicial Restraint of the Warren Court (and Why it Matters)

This article argues that the strongest contribution that the Warren Court made to expanding equality rights was not its judicial activism in protecting those rights, but its restraint in allowing Congress to protect those rights. This argument may seem counter-intuitive given that the Warren Court is practically synonymous with judicial activism. Indeed, the Warren Court’s activism in protecting individual rights provides the paradigm for those constitutional scholars who argue that an active judiciary is necessary for the adequate protection of those rights. However, this paradigm is relatively new. …

Happily Never After: When Final And Binding Arbitration Has No Fairy Tale Ending, Michael H. Leroy

Michael H LeRoy

We launched this empirical study 15 years after the Supreme Court decided Gilmer v. Interstate Johnson/Lane Corp., a key decision that enforced a mandatory arbitration agreement. Gilmer led to the widespread adoption of individual employment arbitration but provided courts no standards for reviewing these arbitration awards.

Until now, researchers have examined the fairness and legality of Gilmer agreements and other aspects of employment arbitration. Our timing is significant because employment arbitration has matured beyond the initial phase of pre-arbitration challenges to this forum. By now, a critical mass of individuals and their employers have been to arbitrations and appealed arbitrator …

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …

Supreme Court Oral Advocacy: Does It Affect The Justices Decisions?, James F. Spriggs, Timothy R. Johnson, Wahlbeck J. Wahlbeck

James F. Spriggs II

Using newly discovered archival data, we test hypotheses that focus on whether the oral argument phase of the Supreme Court’s decision making process affects how justices view and, ultimately decide, cases they hear on the merits. Specifically, we utilize the oral argument notes taken by Justice Harry Blackmun while he sat on the bench to test three general hypotheses. First, we examine the determinants of quality oral argumentation, hypothesizing and showing that conventional indicators of lawyer experience and resource endowments correlate highly with how well an attorney does at orals. Second, we hypothesize that the quality of attorneys’ oral argumentation …

Writing, Cognition, And The Nature Of The Judicial Function, Chad Oldfather

Chad M Oldfather

Prior commentators, including many judges, have observed that writing provides an important discipline on the judicial decisionmaking process. Those commentators have uniformly assumed that the effect will always be positive – that is, that a decision rendered pursuant to a process that includes a written justification will always be better (however better is to be measured) than a decision unaccompanied by writing. According to this view, we should always, all things being equal, prefer a decision accompanied by an opinion to one without. All things are not equal, of course, and there are many situations in which the costs of …

Introduction To The 50th Anniversary Of "Twelve Angry Men" (Symposium Editor), Nancy S. Marder

Nancy S. Marder

No abstract provided.