Law Commons^™

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether

Working Paper Series

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, …

Performing Discretion Or Performing Discrimination: An Analysis Of Race And Ritual In Batson Decisions In Capital Jury Selection, Melynda J. Price

Law Faculty Scholarly Articles

Research shows the mere presence of Blacks on capital juries--on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate …

Child Custody Evaluations: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, J. Mason Weeda, William A. Mack

All Faculty Scholarship

This review of custody evaluation literature encompasses a number of perspectives gleaned from the following: practitioners who perform the evaluations; the professional organizations that recognize the necessity to establish performance standards for practitioners; and the judges who depend on the findings and recommendations in the evaluations to assist with difficult custody decisions.

General agreement exists among practitioners about the components of a comprehensive evaluation (interviews of adults responsible for child care, interviews of children and their preferences, life histories, observations, psychological testing, document review, and collateral source data), though little consensus exists about the details of performance concerning a given …

Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

The Jena Six, Mass Incarceration, And The Remoralization Of Civil Rights, Joseph E. Kennedy

Faculty Publications

No abstract provided.

The Special Threat Of Informants To The Innocent Who Are Not Innocents: Producing "First Drafts," Recording Incentives, And Taking A Fresh Look At The Evidence, Robert P. Mosteller

Faculty Publications

No abstract provided.

Contracting (Out) Rights, Kathryn A. Sabbeth, David C. Vladeck

Faculty Publications

No abstract provided.

The International Court Of Justice And The Concept Of State Practice, A. Mark Weisburd

Faculty Publications

No abstract provided.

The Roberts Court And Access To Justice, Gene R. Nichol

Faculty Publications

No abstract provided.

Time Out, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Plaintiphobia In State Courts? An Empirical Study Of State Court Trials On Appeal, Theodore Eisenberg, Michael Heise

Cornell Law Faculty Publications

Prior federal civil appellate studies show that appeals courts overturn jury verdicts more than bench decisions and that defendants fare better than plaintiffs on appeal. Attitudinal and selection effect hypotheses may explain the appellate court tilt favoring defendants. This study presents the first statistical models of the appeals process for a comprehensive set of state court civil trials to test theories on appellate outcomes. Using data from 46 large counties on 8,038 trials and 549 concluded appeals, we find that appellate reversal rates for jury trials and defendant appeals exceed reversal rates for bench trials and plaintiff appeals. The reversal …

Art Actually! The Courts And The Imposition Of Taste, Marett Leiboff

Faculty of Law - Papers (Archive)

How do we read art, at least in law? The traditional approach of the courts has been to disavow, or at least avoid any discussion on matters of aesthetics or connoisseurship, or more accurately assert such a disavowal. Because whether the courts acknowledge it or not, they actively judge art, even when they say they don't. Judging art by judges, as we will see, is not a particularly edifying spectacle, but is it better for the courts to avoid judging art? In this article, I will explore what happens when the courts grapple with the problem of judging art, but …

The European Court’S Political Power Across Time And Space, Karen Alter

Faculty Working Papers

This article extracts from Alter's larger body of work insights on how the political and social context shapes the ECJ's political power and influence. Part I considers how the political context facilitated the constitutionalization of the European legal system. Part II considers how the political context helps determine where and when the current ECJ influences European politics. Part III draws lessons from the ECJ's experience, speculating on how the European context in specific allowed the ECJ to become such an exceptional international court. Part IV lays out a research agenda to investigate the larger question of how social support shapes …

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …

Giles V. California: Avoiding Serious Damage To Crawford's Limited Revolution, Robert P. Mosteller

Faculty Publications

No abstract provided.

Is Arbitration Under Attack?: Exploring The Recent Judicial Skepticism Of The Class Arbitration Waiver And Innovative Solutions To The Unsettled Legal Landscape, Ramona L. Lampley

Faculty Articles

Courts have become increasingly likely in recent years to find class arbitration waivers in consumer product sales unenforceable due to the lack of incentives for consumers and their attorneys to recover for "low value" claims. This article explores the history of the unconscionability and vindication-of-statutory rights doctrines invoked by those courts. It then analyzes the progression of the class arbitration waiver in the consumer products industry, with emphasis on the third-generation "incentivizing" agreement. This "incentivizing" agreement, if viewed at the time of the purchase agreement, can be mutually beneficial to seller and consumer. Some consumers may wish to forego the …

Toward Fundamental Change For The Protection Of Low-Wage Workers: The “Workers’ Rights Are Human Rights" Debate In The Obama Era, Ruben J. Garcia

Scholarly Works

In order to avoid the pendulum swings of politics, advocates must argue for more fundamental norms for the protection of labor rights. Statutory protections, while important, will not provide long-lasting change toward establishing workers' rights as fundamental under constitutional and international law principles. Workers' rights must be seen as fundamental to the functioning of a democratic society, rather than as the special interest agenda of unions or plaintiffs' attorneys. This can be done through more advocacy for a minimum set of workers' rights as human rights, including the right to organize labor unions and the right to be free from …

Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, Pat K. Chew, Robert E. Kelley

Articles

This empirical study of over 400 federal cases, representing workplace racial harassment jurisprudence over a twenty-year period, found that judges' race significantly affects outcomes in these cases. African American judges rule differently than White judges, even when we take into account their political affiliation and case characteristics. At the same time, our findings indicate that judges of all races are attentive to relevant facts of the cases but interpret them differently. Thus, while we cannot predict how an individual judge might act, our study results strongly suggest that African American judges as a group and White judges as a group …

Indigenous Sentencing Courts (Brief 5, December), Elena Marchetti

Faculty of Law, Humanities and the Arts - Papers (Archive)

This brief focuses on Indigenous sentencing courts, which operate in all Australian states and territories except Tasmania. These courts have been established according to protocols and practices, and can be distinguished from more informal practices that occur in remote areas where judicial officers travel on circuit. The first court was established in Port Adelaide on 1 June 1999. Indigenous sentencing courts do not practise or adopt Indigenous customary laws. Rather, they use Australian criminal laws and procedures to sentence Indigenous offenders who have either pleaded guilty or been found guilty, but they allow Indigenous Elders and Respected Persons to participate …

Introduction To Symposium On Access To The Courts In The Roberts Era, Jonathan L. Entin

Faculty Publications

Introduction to the Case Western Reserve Law Review's symposium "Access to the Courts in the Roberts Era" 2009, Cleveland, OH

Setting The Size Of The Supreme Court, F. Andrew Hessick, Samuel P. Jordan

All Faculty Scholarship

As with any institutional feature, the size of the Supreme Court should be informed by a definition of functional goals. This article describes how the current size of the Supreme Court is largely untethered from any such definition, and it begins the process of understanding how size and Court performance might interact. To do so, it identifies a list of institutional goals for the Supreme Court and explores how changing the size of the Court promotes or obstructs the attainment of those goals. Given that the Court's institutional goals are numerous and occasionally in tension, there is no definitive answer …

The United Nations, The European Union, And The King Of Sweden: Economic Sanctions And Individual Rights In A Plural World Order, Daniel Halberstam, Eric Stein

Articles

In the last decade, economic sanctions have become a major instrumentality of the UN Security Council in the struggle against terrorism and lawless violence endangering peace. It is not surprising that innocents would be ensnarled, along with culprits, in the nets of the so-called "smart" or "targeted" sanctions, which are directed against named individuals and groups (as opposed to delinquent States). In such rare cases, as the individual concerned searches for a legal remedy, significant issues of fundamental human rights may arise at the levels of the international, regional, and national legal orders. This essay explores these issues. After examining …

Straw, Sand, And Sophistry, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.