Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Courts (6)
- Jurisprudence (3)
- Civil Procedure (2)
- Constitutional Law (2)
- Economics (2)
-
- Judges (2)
- Jurisdiction (2)
- Social and Behavioral Sciences (2)
- Administrative Law (1)
- American Politics (1)
- Arts and Humanities (1)
- Behavioral Economics (1)
- Construction Law (1)
- Dispute Resolution and Arbitration (1)
- Environmental Law (1)
- History (1)
- Land Use Law (1)
- Law and Economics (1)
- Law and Politics (1)
- Law and Society (1)
- Legal History (1)
- Legal Profession (1)
- Legal Studies (1)
- Legal Theory (1)
- Legislation (1)
- Litigation (1)
- Models and Methods (1)
- Natural Resources Law (1)
- Political Economy (1)
- Institution
- Publication
-
- Stuart M Benjamin (10)
- Beth Thornburg (2)
- Christopher B. McNeil, J.D., Ph.D. (2)
- Jeffrey A. Van Detta (2)
- Todd E. Pettys (2)
-
- todd brower (2)
- Alexandra B. Klass (1)
- Amanda Hollis-Brusky (1)
- Amanda J Peters (1)
- Angela M Laughlin (1)
- Arthur F Greenbaum (1)
- Barbara A. Atkin (1)
- Bradley W. Joondeph (1)
- Brandice Canes-Wrone (1)
- Breana Frankel (1)
- Brian G. Slocum (1)
- Bryan L Adamson (1)
- Caleb E. Mason (1)
- Colin Miller (1)
- Daniel Gonen (1)
- David F Babbel (1)
- David S. Law (1)
- Deana A Pollard (1)
- Deborah J Challener (1)
- Donald J. Kochan (1)
- Dr. Zahidul Islam (1)
- EMILY KADENS (1)
- Edward Cheng (1)
- Eric M Fink (1)
- Goutam U Jois (1)
- File Type
Articles 61 - 90 of 99
Full-Text Articles in Law
Res Judicata In The Icj’S Genocide Case: Implications For Other Courts And Tribunals?, Peter S. Prows, Michael Ottolenghi
Res Judicata In The Icj’S Genocide Case: Implications For Other Courts And Tribunals?, Peter S. Prows, Michael Ottolenghi
Peter S Prows
The International Court of Justice’s (“ICJ”) 2007 Judgment in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (“Genocide case”) has, perhaps predictably, already attracted significant attention from the academic community. Much of this attention has focused on the merits of the judgment, but one commentator has suggested that the Genocide case will be remembered mostly “for the wider impact it will have on issues of res judicata and evidence.” While the important evidentiary issues in the Genocide case have started to generate their own commentary, the issue of res judicata has received …
Life And Death Decisions: Prosecutorial Discretion And Capital Punishment In Missouri, Katherine Barnes, David Sloss, Stephen Thaman
Life And Death Decisions: Prosecutorial Discretion And Capital Punishment In Missouri, Katherine Barnes, David Sloss, Stephen Thaman
Katherine Barnes kbarnes@.wulaw.wustl.edu
This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser …
Wedging Open The Courthouse Doors: Federal Employee Access To Judicial Review Of Constitutional And Statutory Claims, Barbara A. Atkin, Elaine Kaplan, Gregory O'Duden
Wedging Open The Courthouse Doors: Federal Employee Access To Judicial Review Of Constitutional And Statutory Claims, Barbara A. Atkin, Elaine Kaplan, Gregory O'Duden
Barbara A. Atkin
This article addresses, in a comprehensive fashion, jurisdictional barriers that federal employees face in obtaining judicial review of statutory and constitutional claims. Many statutory claims that employees had previously brought in federal court are now precluded entirely by the Civil Service Reform Act of 1978. Courts, however, retain jurisdiction where there are independent jurisdictional bases for review. They also traditionally have preserved their jurisdiction to grant equitable relief for constitutional violations. Determination of those types of government action for which Congress intended the CSRA remedies to be exclusive has been hotly litigated. In addition, even when the claims are not …
Comparing Judicial Compensation: Apples, Oranges, And Cherry-Picking, Matthew W. Wolfe, Reed Watson
Comparing Judicial Compensation: Apples, Oranges, And Cherry-Picking, Matthew W. Wolfe, Reed Watson
Matthew W. Wolfe
United States Supreme Court Chief Justice John Roberts describes the American judiciary as the envy of other constitutional democracies. But in one respect, the judiciary apparently trails others: judicial pay. Citing higher salaries of judges in other countries, Chief Justice Roberts and Associate Justices Stephen Breyer and Samuel Alito have all argued that inadequate judicial pay leads to a decline in judicial performance and quality. Judicial pay advocates apparently make these comparisons to emphasize that low judicial salaries “threaten” judicial quality and independence or, alternatively, that high judicial salaries “ensure” quality and independence. But the argument is incomplete, relying upon …
Sometimes You Have To Go Backwards To Go Forwards: Judicial Review And The New National Security Exception To The Fourth Amendment, Sheerin N. Shahinpoor
Sometimes You Have To Go Backwards To Go Forwards: Judicial Review And The New National Security Exception To The Fourth Amendment, Sheerin N. Shahinpoor
Sheerin N. Shahinpoor
National security concerns have historically provided a strong basis for non-justiciable Executive Branch action; however, post 9/11, such actions have grown to encompass a greater number of American citizens' civil liberties. The federal judiciary's deferential treatment of national-security related conduct, particularly in the realm of suspicionless searches, occurs with dangerous frequency, and any semblance of meaningful review has been nearly eviscerated. The stakes involved in national security are weighty and, in many instances, present the courts with an artificial choice: uphold a potentially over-zealous suspicionless-search program but avoid danger, or strike down such a program in favor of civil liberties …
Oy Vey! The Bernstein Exception: Rethinking The Doctrine In The Wake Of Constitutional Abuses, Corporate Malfeasance And The “War On Terror”, Breana Frankel
Oy Vey! The Bernstein Exception: Rethinking The Doctrine In The Wake Of Constitutional Abuses, Corporate Malfeasance And The “War On Terror”, Breana Frankel
Breana Frankel
Abstract OY VEY! THE BERNSTEIN EXCEPTION: RETHINKING THE DOCTRINE IN THE WAKE OF CONSTITUTIONAL ABUSES, CORPORATE MALFEASANCE AND THE “WAR ON TERROR” Breana Frankel, Assistant Professor, Chapman University School of Law The “Bernstein doctrine” is a classic example of the exception swallowing the rule. The Bernstein exception allows the Executive to intercede in act of state cases when it determines that adjudication would not harm U.S.-foreign relations. The Exception was initially intended solely to permit victims of Nazi war crimes to recover in United States courts. However, in the more than 50 years since its inception, the Bernstein doctrine has …
Focus On Batson: Let The Cameras Roll, Mimi Samuel
Focus On Batson: Let The Cameras Roll, Mimi Samuel
Mimi Samuel
While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in …
Mis-Under-Standing Freedom From Religion: Two Cents On Madison's Three Pence, Kyle Duncan
Mis-Under-Standing Freedom From Religion: Two Cents On Madison's Three Pence, Kyle Duncan
Kyle Duncan
Forty years ago in Flast v. Cohen, the Supreme Court created, for Establishment Clause cases only, a dramatic exception to a bedrock principle of standing doctrine, based on one catchy phrase from a famous historical document—James Madison’s 1785 Memorial and Remonstrance Against Religious Assessments. The Court has been notoriously bad at Establishment Clause history, but Flast seemed to push the envelope. Yet neither the Court nor commentators seemed to question Flast’s historical credentials over the last four decades. Recently, the Supreme Court took up the standing question again in Hein v. Freedom From Religion Foundation, Inc. Unhappily, the justices’ various …
Even Better Than The Real Thing: How Courts Have Been Anything But Liberal In Finding Genuine Questions Raised As To The Authenticity Of Originals Under Rule 1003, Colin Miller
Colin Miller
In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their nonproduction. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their nonproduction, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could …
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Scott A Moss
Cases are won and lost in discovery, yet discovery draws surprisingly little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes – which, unlike trials, occur in most cases. Today, much evidence is “e-discovery” – imprudent emails or still-lingering “deleted” files – making costly discovery battles increasingly salient. But the e-discovery rules are not truly new, just a strengthening of old cost/benefit “proportionality” limits on discovery enacted when the spread of photocopiers similarly increased the amount of discovery. Proportionality limits are topic of broad consensus among civil procedure scholars as well as …
Federalism, The Rehnquist Court, And The Modern Republican Party, Bradley W. Joondeph
Federalism, The Rehnquist Court, And The Modern Republican Party, Bradley W. Joondeph
Bradley W. Joondeph
Most scholars agree that federalism was central to the Rehnquist Court’s constitutional agenda. But there is a part of the federalism story that has been largely overlooked: the Court's decisions involving the structural constraints on state governments, the most significant of which are preemption and the dormant Commerce Clause. This article makes two empirical claims about the Rehnquist Court’s federalism jurisprudence, one descriptive and one interpretive. The descriptive claim is that that the Court’s overall approach to federalism was more complicated than many have assumed, and it was not necessarily friendly to the states. To support this contention, I present …
Let’S Count Them All: Maryland Courts Should Adopt An Interventionist Approach To Contested Elections, John C. Armstrong
Let’S Count Them All: Maryland Courts Should Adopt An Interventionist Approach To Contested Elections, John C. Armstrong
John C Armstrong
Maryland courts currently take a hands-off approach to challenges to contested elections. In this article, I argue that the Maryland Court of Appeals should overrule some of its precedent and adopt a more active role in judicial challenges to contested elections. In Part I, I discuss the current statutory provisions and case law covering contest elections in Maryland. In Part II, I propose a new test for court challenges to contested elections. In Part III, I briefly summarize federal case law and case law from other states that have adopted an approach similar to the test I advocate. In Part …
The Boundaries Of Contact Law In Cyberspace, Leon E. Trakman
The Boundaries Of Contact Law In Cyberspace, Leon E. Trakman
Leon E Trakman Dean
Cyberspace has introduced novel ways in which to conclude, perform and terminate agreements. It has also raised doubts about whether traditional principles of contract law can adequately regulate new categories of contracts like click-wrap and browse-wrap agreements that were unheard of a few decades ago. This article explores these exciting new developments. Starting with an examination of late Nineteenth and early Twentieth adhesion contracts and the law of unconscionability, it evaluates innovations in contracting that have evolved since then. Uncovering the complexities associated with “wrap” contracts and End User Licensing Agreements [EULAs], it scrutinizes how legislatures and courts have responded …
An Aesthetic Defense Of The Non-Precedential Opinion: The Easy Cases Debate In The Wake Of The 2007 Amendments To The Federal Rules Of Appellate Procedure, Caleb E. Mason
Caleb E. Mason
Abstract: In this article I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80% of the output of the courts of appeals. The recent amendment to Fed. R. App. Proc. 32.1(a), requiring that all circuits allow citation to nonprecedential opinions, has provoked considerable debate about how, and whether, to issue opinions in the class of cases currently resolved by NPOs. I defend the issuance of NPOs not as a necessary concession to overwork, but rather as a valuable decisional form that plays a useful if not vital role in inculcating in practitioners the perceptual …
Green-Lighting Brown: A Cumulative-Process Conception Of Judicial Impact, Vincent James Strickler
Green-Lighting Brown: A Cumulative-Process Conception Of Judicial Impact, Vincent James Strickler
Vincent James Strickler
Disagreement over the meaning and power of Brown v. Board of Education is part of a larger debate about the capacity of the courts to influence social change. A “down with Brown” movement denies that the iconic case changed America. But, an examination of 68 United States Supreme Court cases (particularly the paradigm-shifting case of Green v. County School Board) and 414 Federal District Court cases, from 1944 through 1974, reveals a cumulative-judicial process that correlates well (and better than legislative efforts) with actual desegregation successes. Considering a “Green-lighted” Brown, rather than the historic case in isolation, better reveals the …
Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys
Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys
Todd E. Pettys
A growing number of constitutional scholars are urging the nation to rethink its commitment to judicial supremacy. Popular constitutionalists argue that the American people, not the courts, hold the ultimate authority to interpret the Constitution’s many open-ended provisions whose meanings are reasonably contestable. This Article defends popular constitutionalism on two important fronts. First, using originalism as a paradigmatic example of the ways in which courts frequently draw constitutional meaning from sources rooted deep in the past, the Article contends that defenders of judicial supremacy still have not persuasively responded to the familiar dead-hand query: Why should constitutional meanings that prevailed …
Learned Hand’S District Court Opinions, 1916-1917: A Macrostructural Analysis Employing Cognitive Psychology Principles, Jeffrey A. Van Detta
Learned Hand’S District Court Opinions, 1916-1917: A Macrostructural Analysis Employing Cognitive Psychology Principles, Jeffrey A. Van Detta
Jeffrey A. Van Detta
What makes a judge a good trial court writer? Should this be measured by the writing of the appeals court judges who review them? Does it even matter if trial court judges write well? Examining trial court opinions that Judge Learned Hand wrote 1916-1917 on the U.S. District Court, this article answers those questions by applying principles of cognitive psychology in a detailed critical evaluation of each opinion and its legal and society context. This article makes a very substantial contribution to the study of legal linguistics, cognitive psychology as applied in critical reading of judicial opinions, and of Learned …
Judiciary And The Administration Of Justice In Building And Constructon Disputes Under Kuwaiti Law, Mashael Alhajeri
Judiciary And The Administration Of Justice In Building And Constructon Disputes Under Kuwaiti Law, Mashael Alhajeri
Mashael Alhajeri
No abstract provided.
The Immoral Application Of Exclusionary Rules, Todd E. Pettys
The Immoral Application Of Exclusionary Rules, Todd E. Pettys
Todd E. Pettys
In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech …
Book Review: Michael J. Perry, Toward A Theory Of Human Rights: Religion, Law, Courts (2007), Mark C. Modak-Truran
Book Review: Michael J. Perry, Toward A Theory Of Human Rights: Religion, Law, Courts (2007), Mark C. Modak-Truran
Mark C Modak-Truran
This book review analyzes Michael J. Perry's most recent book Toward a Theory of Human Rights: Religion, Law, Courts. Perry's book brings together two previously separate aspects of his thoughtful and pioneering scholarship dealing with the proper relation of morality (especially religious morality) to law and human rights and the role of courts in protecting human rights. Perry's argument concentrates on three related issues: whether the morality of human rights has a religious or secular ground or both, the relation between the morality of human rights and the law of human rights, and the proper role of courts in protecting …
Operationalizing Deterrence: Claims Management (In Hospitals, A Large Retailer, And Jails And Prisons), Margo Schlanger
Operationalizing Deterrence: Claims Management (In Hospitals, A Large Retailer, And Jails And Prisons), Margo Schlanger
Margo Schlanger
No abstract provided.
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande
John Lande
This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate. The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, …
Why Supreme Court Justices Cite Legislative History: An Empirical Investigation, David S. Law, David Zaring
Why Supreme Court Justices Cite Legislative History: An Empirical Investigation, David S. Law, David Zaring
David S. Law
Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique – namely, the use of legislative history to determine the purpose and meaning of a statute. We …
Judicial Hellholes, Lawsuit Climates, And Bad Social Science: Lessons From West Virginia, Elizabeth Thornburg
Judicial Hellholes, Lawsuit Climates, And Bad Social Science: Lessons From West Virginia, Elizabeth Thornburg
Beth Thornburg
The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA's hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U.S. Chamber …
The Curious Appellate Judge: Ethical Limits On Independent Research, Beth Thornburg
The Curious Appellate Judge: Ethical Limits On Independent Research, Beth Thornburg
Beth Thornburg
Appellate judges in the twenty-first century find themselves in a world in which litigation – both civil and criminal -- involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world’s library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. When judges feel the need for additional information, the …
Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons From The Past, Rebecca Zietlow
Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons From The Past, Rebecca Zietlow
Rebecca E Zietlow
Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism …
California's Dueling Harmless Error Standards: Approaches To Federal Constitutional Error In Civil Trials And Establishing The Proper Test For Dependency, Meehan Rasch
Meehan Rasch
For forty years, California appellate courts generally have applied one discrete harmless error test for federal constitutional error in criminal cases and another for civil proceedings. In appeals from convictions in California state criminal cases, errors rising to a federal constitutional dimension are governed by the standard of Chapman v. California, which requires that these errors be proven by the state to be harmless beyond any reasonable doubt. The more lenient standard (for the trial court) of People v. Watson, which holds errors of state law and procedure harmless unless there is a reasonable probability that such error prejudiced the …
J.E.B. V. Alabama Ex Rel. T.B., 511 U.S. 127 (1994), Nancy Marder
J.E.B. V. Alabama Ex Rel. T.B., 511 U.S. 127 (1994), Nancy Marder
Nancy S. Marder
No abstract provided.
What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin
What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin
Robert Justin Lipkin
Skepticism concerning the legitimacy of judicial review typically occurs without distinguishing between judicial review and judicial supremacy. The former gives the Court a say in evaluating the constitutionality of legislation and other government conduct. The latter gives the Court the final say over these matters. This Article defends the Court's role in judicial review but rejects the practice of judicial supremacy. The Article first critically examines some of the more important attempts to justify judicial supremacy and finds them wanting. It then explains why judicial review, as the practice of applying American political philosophical concepts such as federalism, the separation …
Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat
Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat
Martin H. Malin
Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.