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Articles 1 - 30 of 32
Full-Text Articles in Law
Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley
Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley
Faculty Scholarship
The determination that sexual harassment constituted “discrimination based on sex” under Title VII was first made by the lower federal courts, not Congress. Drawing from the literature on policy diffusion, this article examines the adoption of hostile work environment standards across the U.S. Courts of Appeals in the absence of controlling Supreme Court precedent. The results bolster recent findings about the influence of female judges on their male colleagues and suggest that in addition to siding with female plaintiffs, female judges also helped to shape legal rules that promoted gender equality in the workplace.
The Reality Of Eu-Conformity Review In France, Juscelino F. Colares
The Reality Of Eu-Conformity Review In France, Juscelino F. Colares
College of Law - Faculty Scholarship
French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …
Are You Networked Yet? On Dialogues Within European Judicial Networks, Monica Claes, Maartje De Visser
Are You Networked Yet? On Dialogues Within European Judicial Networks, Monica Claes, Maartje De Visser
Research Collection Yong Pung How School Of Law
The article examines the modality of judicial dialogue and the practical workings of less institutionalized judicial networks in Europe. Topics discussed include the definition of constitutional pluralism, network, and dialogue, the participation of judges in judicial networks, and the relationship between the Court of Justice of the European Union (CJEU) and the national courts.
New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo
New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo
All Faculty Scholarship
No abstract provided.
Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions, Ira Robbins
Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions, Ira Robbins
Articles in Law Reviews & Other Academic Journals
Per curiam--literally translated from Latin to "by the court"-is defined by Black's Law Dictionary as "[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion." Accordingly the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts’ tenure, almost nine percent of the Court full opinions were per curiams. The prevalence …
Modern Odysseus Or Classic Fraud - Fourteen Years In Prison For Civil Contempt Without A Jury Trial, Judicial Power Without Limitation, And An Examination Of The Failure Of Due Process, Mitchell J. Frank
Faculty Scholarship
No abstract provided.
Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman
Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman
All Faculty Scholarship
This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups …
Skilling And The Pursuit Of Healthcare Fraud, Joan H. Krause
Skilling And The Pursuit Of Healthcare Fraud, Joan H. Krause
Faculty Publications
No abstract provided.
A Tort Statute, With Aliens And Pirates, Eugene Kontorovich
A Tort Statute, With Aliens And Pirates, Eugene Kontorovich
Faculty Working Papers
The pirates of the Caribbean are back. Not in another fantastical film but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since they dealt with the legal issues raised by a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing piracy. This crime has emerged as the test case for evaluating the major controversies about the reach of the statute -- namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Shell, justices of all persuasions …
Expert Evidence In Gender-Based Asylum Cases: Cultural Translation For The Court, Lindsay M. Harris
Expert Evidence In Gender-Based Asylum Cases: Cultural Translation For The Court, Lindsay M. Harris
Journal Articles
This article examines the use of country conditions experts in gender-based asylum claims, with a focus on African women and girls facing gender-based violence in their countries of origin. Using anonymous case examples from the work of the Tahirih Justice Center’s African Women’s Empowerment Project, the article explores the role of experts and the critical bridge that experts can provide in asylum claims adjudicated at the asylum office and in immigration court. A brief overview of U.S. asylum law and procedures sets the stage for a deeper look at expert evidence.
Batson Revisited (Symposium), Nancy S. Marder
Batson Revisited (Symposium), Nancy S. Marder
All Faculty Scholarship
The twenty-fifth anniversary of Batson v. Kentucky provides an important moment to reflect on Batson and to consider how this seminal case and its progeny have affected the use and abuse of peremptory challenges. I had initially welcomed the U.S. Supreme Court’s approach to peremptory challenges in Batson back in 1986. Although Batson was a compromise—preserving peremptories while seeking to address discriminatory peremptories—it had the noble goal of trying to eliminate discrimination during jury selection. I also embraced its expansion over the years. The logic of Batson was inexorable: just as prosecutors should not be permitted to use peremptories to …
The Conundrum Of Cameras In The Courtroom, Nancy S. Marder
The Conundrum Of Cameras In The Courtroom, Nancy S. Marder
All Faculty Scholarship
In spite of a communications revolution that has given the public access to new media in new places, the revolution has been stopped cold at the steps to the U.S. federal courthouse. The question whether to allow television cameras in federal courtrooms has aroused strong passions on both sides, and Congress keeps threatening to settle the debate and permit cameras in federal courts. Proponents of cameras in federal courtrooms focus mainly on the need to educate the public and to make judges accountable, whereas opponents focus predominantly on the ways in which cameras can affect participants’ behavior and compromise the …
Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera
Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera
Faculty Scholarship
No abstract provided.
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Faculty Publications
This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …
Constitution Day 2012: The American Judiciary, Robert Berry
Constitution Day 2012: The American Judiciary, Robert Berry
Librarian Publications
Robert Berry, research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the role of the American Judiciary in interpreting laws of the United States government. The essay was written for the occasion of Constitution Day 2012 at Sacred Heart University.
Islam In The Mind Of American Courts, Marie Failinger
Islam In The Mind Of American Courts, Marie Failinger
Faculty Scholarship
This article surveys references to Islam and Muslims in American court opinions from 1800 to 1960. It argues that American judges as a group portray an ambivalent attitude toward Muslims, some treating Islam disparagingly or as an exotic and fanciful religion, and others emphasizing the religious equality that Muslims deserve
Why Mortgage "Formalities" Matter, David A. Dana
Why Mortgage "Formalities" Matter, David A. Dana
Faculty Working Papers
This Article argues that adherence to mortgage formalities regarding foreclosure is valuable for expressive reasons and also as a potential deterrent to future undesirable underwriting and securitization practices. The Article reviews how some courts have in effect written procedural requirements for foreclosure out of the law, and asks why these courts have done so and whether lenders' behavior might have been improved during this housing crisis had the state courts uniformly afforded equal respect to the legal rights of homeowners and those of lenders.
The Multiple Roles Of International Courts And Tribunals: Enforcement, Dispute Settlement, Constitutional And Administrative Review, Karen J. Alter
The Multiple Roles Of International Courts And Tribunals: Enforcement, Dispute Settlement, Constitutional And Administrative Review, Karen J. Alter
Faculty Working Papers
This chapter is part of an upcoming interdisciplinary volume on international law and politics. The chapter defines four judicial roles states have delegated to international courts (ICs) and documents the delegation of dispute settlement, administrative review, enforcement and constitutional review jurisdiction to ICs based on a coding of legal instruments defining the jurisdiction of 25 ICs. I show how the design of ICs varies by judicial role and argue that the delegation of multiple roles to ICs helps explain the shift in IC design to include compulsory jurisdiction and access for nonstate actors to initiate litigation. I am interested in …
Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich
Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich
Faculty Working Papers
Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only "Define" offenses that clearly already exist in international law, or does it have discretion …
The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander
The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander
Faculty Working Papers
Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the "courts of law." Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief's authority as constitutionally benign. This Essay explores the origins of the Constitution's choice of the "courts" as the repository of appointment power. The decision was made against the backdrop …
Case Management In The Circuit Courts, Marin K. Levy
Case Management In The Circuit Courts, Marin K. Levy
Faculty Scholarship
No abstract provided.
Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias
Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias
Faculty Scholarship
Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …
Custody Rights Of Lesbian And Gay Parents Redux: The Irrelevance Of Constitutional Principles, Nancy Polikoff
Custody Rights Of Lesbian And Gay Parents Redux: The Irrelevance Of Constitutional Principles, Nancy Polikoff
Articles in Law Reviews & Other Academic Journals
Disputes over custody and visitation can arise when a marriage ends and one parent comes out as gay or lesbian. the heterosexual parent may seek custody or may seek to restrict the activities of the gay or lesbian parent, or the presence of the parent's same-sex partner, during visitation. A gay or lesbian parent's assertion of constitutional rights has not been an effective response to such efforts. that is not likely to change. Advocates for gay and lesbian parents have argued forcefully for a nexus text, permitting consideration of a parent's sexual orientation only when there is evidence of an …
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
Articles
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …
The Realism Of Race In Judicial Decision Making: An Empirical Analysis Of Plaintiffs' Race And Judges' Race, Pat K. Chew, Robert E. Kelley
The Realism Of Race In Judicial Decision Making: An Empirical Analysis Of Plaintiffs' Race And Judges' Race, Pat K. Chew, Robert E. Kelley
Articles
American society is becoming increasingly diverse. At the same time, the federal judiciary continues to be predominantly White. What difference does this make? This article offers an empirical answer to that question through an extensive study of workplace racial harassment cases. It finds that judges of different races reach different conclusions, with non-African American judges less likely to hold for the plaintiffs. It also finds that plaintiffs of different races fare differently, with African Americans the most likely to lose and Hispanics the most likely to be successful. Finally, countering the formalism model’s tenet that judges are color-blind, the results …
The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan
The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan
Publications
Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases--mainly wage claims but also age discrimination and gender equal pay claims--29 U.S. C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving …
Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib
Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib
Faculty Scholarship
This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …
Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decisionmaking, Christine N. Cimini
Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decisionmaking, Christine N. Cimini
Articles
This Article examines judicial decisionmaking in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are left to resolve the conflict. While existing case law appears to lack coherence, this Article identifies a uniform judicial reliance upon “fault-based” factors. This Article offers a structure to understand this developing body of law and evaluates the legitimacy of the fault-based decisionmaking modalities utilized …
The Structural Exceptionalism Of Bankruptcy Administration, Rafael I. Pardo, Kathryn A. Watts
The Structural Exceptionalism Of Bankruptcy Administration, Rafael I. Pardo, Kathryn A. Watts
Scholarship@WashULaw
The current system of administration of the Bankruptcy Code is highly anomalous. It stands as one of the few major federal civil statutory regimes administered almost exclusively through adjudication in the courts, not through a federal regulatory agency. This means that rather than fitting bankruptcy into a regulatory model, Congress has chosen to give the courts primary interpretive authority in the field of bankruptcy, delegating to courts the power to engage in residual policymaking. Although scholars have noted some narrow aspects of the structural exceptionalism of bankruptcy administration, Congress’s decision to locate responsibility for bankruptcy policymaking almost exclusively with the …
Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash
Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash
Scholarship@WashULaw
This Article empirically examines the question of whether courts of appeals judges cast ideological votes in the context of bankruptcy. The empirical study is unique insofar as it is the first to specifically examine the voting behavior of circuit court judges in bankruptcy cases. More importantly, it focuses on a particular type of dispute that arises in bankruptcy - debt-dischargeability determinations. The study implements this focused approach in order to reduce heterogeneity in result. We find, contrary to our hypotheses, no evidence that circuit court judges engage in ideological voting in bankruptcy cases. We do find, however, non-ideological factors - …