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2008

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Full-Text Articles in Law

How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt Dec 2008

How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt

Nathan A Greenblatt

Mandatory minimum sentences are anathema to judges due to, it is commonly said, judges’ “utter lack of power to do anything for the exceptional defendants that move them.” In the case of Weldon Angelos, for example, U.S. District Judge Paul Cassell lamented that sentencing Mr. Angelos to 55 years in prison “is unjust, cruel, and even irrational. [The court] reluctantly concludes that it has no choice.” The Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years, because it, too, has concluded that mandatory sentences give judges no choice in sentencing. Indeed, the U.S. Sentencing ...


The Story Of El–Masri V. Tenet: Human Rights And Humanitarian Law In The ‘‘War On Terror’’, Margaret L. Satterthwaite Dec 2008

The Story Of El–Masri V. Tenet: Human Rights And Humanitarian Law In The ‘‘War On Terror’’, Margaret L. Satterthwaite

New York University Public Law and Legal Theory Working Papers

Among the most notorious anti-terror techniques used by the U.S. government in the "War on Terror" are two shrouded in secrecy: extraordinary rendition and enforced disappearances. Extraordinary rendition entails the transfer of an individual for interrogation in a country known for the use of torture. Enforced disappearances occur when individuals are deprived of their liberty by state agents, who then fail to provide information about their fate or whereabouts, placing them outside the protection of the law. In the aftermath of 9/11, reports began to surface that terrorism suspects were being sent for interrogation by the United States ...


The Wisdom Of Soft Judicial Power: Mr. Justice Powell Concurring, Samuel Estreicher, Tristan Pelham-Webb Dec 2008

The Wisdom Of Soft Judicial Power: Mr. Justice Powell Concurring, Samuel Estreicher, Tristan Pelham-Webb

New York University Public Law and Legal Theory Working Papers

No abstract provided.


Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting And Adjudication Equilibria, Charles Cameron, Lewis Kornhauser Dec 2008

Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting And Adjudication Equilibria, Charles Cameron, Lewis Kornhauser

New York University Public Law and Legal Theory Working Papers

We present a formal game theoretic model of adjudication by a collegial court. Distinctively, the model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes judicial rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion's location in policy space; the case's disposition; and the size and composition of the disposition-coalition, the join-coalition, and the concurrence-coalition. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of ...


Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting And Adjudication Equilibria, Charles Cameron, Lewis Kornhauser Dec 2008

Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting And Adjudication Equilibria, Charles Cameron, Lewis Kornhauser

New York University Law and Economics Working Papers

We present a formal game theoretic model of adjudication by a collegial court. Distinctively, the model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes judicial rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion's location in policy space; the case's disposition; and the size and composition of the disposition-coalition, the join-coalition, and the concurrence-coalition. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of ...


Who's Your Daddy?: A Psychoanalytic Exegesis Of The Supreme Court's Recent Patent Jurisprudence, Gretchen S. Sween Dec 2008

Who's Your Daddy?: A Psychoanalytic Exegesis Of The Supreme Court's Recent Patent Jurisprudence, Gretchen S. Sween

Gretchen S. Sween

ABSTRACT Who’s Your Daddy?: A Psychoanalytic Exegesis of the Supreme Court’s Recent Patent Jurisprudence Gretchen S. Sween, Ph.D., J.D. Dechert LLP 300 W. 6th Street Suite 1850 Austin, TX 78701 gretchen.sween@dechert.com Since a new administration took office in 2001, the Supreme Court has granted certiorari in, and then decided, twelve patent cases in six years. Even more extraordinary is the Supreme Court’s remarkable consistency during this recent incursion into patent law: it has either reversed, vacated, and/or remanded Federal Circuit decisions in each instance in opinions that have been unanimous or ...


"The Story Of United States V. United States District Court (Keith): The Surveillance Power", Trevor W. Morrison Nov 2008

"The Story Of United States V. United States District Court (Keith): The Surveillance Power", Trevor W. Morrison

Columbia Public Law & Legal Theory Working Papers

This chapter, prepared for Presidential Power Stories (edited by Christopher Schroeder and Curtis Bradley), tells the story of United States v. United States District Court for the Eastern District of Michigan, better known as the Keith case. Keith is the Supreme Court's first and still most important statement on the extent to which the President, acting in the interests of national security, may authorize the warrantless wiretapping or other electronic surveillance of persons within the United States. The case began as a criminal prosecution of members of the radical "White Panther Party" for the bombing of a CIA office ...


A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez Nov 2008

A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez

John Martinez

A Proposal for Establishing

Specialized Federal and State "Takings Courts"

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

Takings doctrine is a mess. This article proposes that we just accept that -- and establish specialized federal and state "takings courts" for adjudicating takings claims.

In 1978 the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. And in 2005, the Court abrogated a test for takings which it had followed for 25 years. Indeed, some scholars have even resigned themselves to embracing vagueness as a virtue in takings ...


A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan Nov 2008

A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan

Lumen N. Mulligan

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court’s section 1331 jurisprudence in terms of the contemporary judicial usage of “right” (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue ...


The Food Stays In The Kitchen: Everything I Needed To Know About Statutory Interpretation I Learned By The Time I Was Nine, Hillel Levin Oct 2008

The Food Stays In The Kitchen: Everything I Needed To Know About Statutory Interpretation I Learned By The Time I Was Nine, Hillel Levin

Hillel Levin

Based on a true story, this brief Essay begins with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), and others--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to demonstrate the following:

* We all regularly use the basic tools and modes of statutory interpretation;

* When we interpret pronouncements in real life, we resort ...


Constitution By Compromise, Howard Schweber, Amnon Cavari Oct 2008

Constitution By Compromise, Howard Schweber, Amnon Cavari

Howard Schweber

The question of empowering the court and the limits of constitutional protection are at the heart of the debate over constitutional design in Israel. Lacking a comprehensive written constitution, Israel nonetheless has a set of basic laws which encompass many of the functions of a constitutional text making it a near-complete constitution. Nonetheless, there continues to be considerable support for the idea of a single, formally adopted constitutional text. Recently, several proposals have been brought to the forefront of political discussions through the actions of various interest groups outside the government, and energized and committed efforts by government officials and ...


Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy Oct 2008

Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy

Michael H LeRoy

Judicial review of arbitration awards is highly deferential, but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III ...


Monroe County, Kentucky - Records, 1826-1842 (Sc 1761), Manuscripts & Folklife Archives Oct 2008

Monroe County, Kentucky - Records, 1826-1842 (Sc 1761), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid only for Manuscripts Small Collection 1761. Record book kept by Justice of the Peace William G. Howard. It includes lists of marriages performed.


Much Ado About Non-State Actors: The Vanishing Relevance Of State Affiliation In International Criminal Law, John P. Cerone Sep 2008

Much Ado About Non-State Actors: The Vanishing Relevance Of State Affiliation In International Criminal Law, John P. Cerone

John P Cerone

Much has been made recently of the deficiencies of international law in grappling with violence perpetrated by non-state actors. From transnational terrorist networks to private security contractors (PSCs), organizations that are not officially part of the apparatus of any state are increasingly engaged in protracted episodes of intense violence, giving rise to questions of accountability under international law. Does international law provide rules applicable to such conduct? Once the individual has been deemed a subject of positive international law, the requirement of state affiliation is no longer essential to analytical coherence. The issue becomes simply whether international law should directly ...


Will Video Kill The Trial Courts' Star? How "Hot" Records Will Change The Appellate Process, Leah A. Walker Sep 2008

Will Video Kill The Trial Courts' Star? How "Hot" Records Will Change The Appellate Process, Leah A. Walker

Leah A Walker

No abstract provided.


The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, Margaret C. Tarkington Sep 2008

The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, courts discipline and sanction attorneys who make disparaging remarks about the judiciary. Yet, in that context, state and federal courts have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan for punishing speech regarding government officials. Indeed, some courts even deny attorneys the defense of truth. Attorneys have been punished even when they were not engaged in a representative capacity and regardless of the forum in which they made their statements (including to the press, in pamphlets, or even in personal letters). The punishment imposed for impugning judicial ...


The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky Sep 2008

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right ...


Nowhere To Hide: Overbreadth And Other Constitutional Challenges Facing The Current Designation Regime, Ilya O. Podolyako Sep 2008

Nowhere To Hide: Overbreadth And Other Constitutional Challenges Facing The Current Designation Regime, Ilya O. Podolyako

Student Scholarship Papers

This Article examines the legal foundation and policy implications of the President’s power to designate terrorist organizations. These administrative actions carry severe repercussions because of the criminal prohibition on knowingly providing material support to the designated entities, codified at 18 U.S.C. § 2339B. Due to the overlap of the President’s Commander-in-Chief power to block enemy assets and specific Congressional authorization of such actions, the designations themselves appear to be immune from constitutional challenges. It is the addition of concomitant criminal sanctions, however, that drastically expands the potency of the designations and turns them into an effective national ...


The Meaning, Measure, And Misuse Of Standards Of Review, Amanda J. Peters Sep 2008

The Meaning, Measure, And Misuse Of Standards Of Review, Amanda J. Peters

Amanda J Peters

Standards of review are critical to appellate review because they set limitations upon the appellate court's review process. In doing so, standards of review balance judicial authority, make judicial review more efficient, standardize the review process, and give notice to parties who wish to appeal their cases. However, these policies and their effects are diminished when appellate judges misuse or ignore standards of review.

This article examines the theories that led to the creation of standards of review and identifies four ways that appellate courts misuse standards of review. It analyzes over 8,000 cases from Texas and California ...


"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati Sep 2008

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees ...


"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati Sep 2008

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees ...


Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez Sep 2008

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may ...


"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati Sep 2008

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees ...


"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati Sep 2008

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees ...


Statistical String Theory For Courts: If The Data Don't Fit..., David F. Babbel Sep 2008

Statistical String Theory For Courts: If The Data Don't Fit..., David F. Babbel

David F Babbel

The primary purpose of this article is to provide courts with an important new tool for applying the correct probability distribution to a given legal question. This tool is path-breaking and will have an extensive impact on how a wide variety of cases are decided. In areas as diverse as criminal prosecutions and civil lawsuits alleging securities fraud, courts must assess the relevance and reliability of statistical data and the inferences drawn therefrom. But, courts and expert witnesses often make mistaken assumptions about what probability distributions are appropriate for their analyses. Using the wrong probability distribution can lead to invalid ...


"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati Sep 2008

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees ...


"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati Sep 2008

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees ...


Judging In Chambers: The Powers Of A Single Justice Of The Supreme Court, Daniel M. Gonen Sep 2008

Judging In Chambers: The Powers Of A Single Justice Of The Supreme Court, Daniel M. Gonen

Daniel Gonen

A relatively obscure power of individual federal judges is the power to grant interim relief to a litigant pending appellate review of a lower court’s judgment or order. Individual judges routinely use this power, exercising virtually unfettered discretion to control the interim outcome of cases during the months and years it can take for the appellate process to conclude. In some cases, an individual judge has the power to decide if a case will be kept in a reviewable posture at all. This article explores this power, largely focusing on the Supreme Court level, and offers a critical assessment ...


Learned Hand’S District Court Opinions, 1916-1917: A Macrostructural Analysis Employing Cognitive Psychology Principles, Jeffrey A. Van Detta Sep 2008

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? These are important questions, especially with the growth of our state and federal trial court systems in the United States and Canada. Yet, they’ve not been directly posed, nor adequately answered, even by law professors who use judicial opinions daily as the grist for milling the laity into lawyers. The typical emphasis on appellate opinions as the exemplars of "good judicial writing” is misplaced. Appellate ...


Mr. Justice Blackstone: The Commentator On Common Pleas, Emily Kadens Aug 2008

Mr. Justice Blackstone: The Commentator On Common Pleas, Emily Kadens

EMILY KADENS

Although William Blackstone served longer as a judge on the English Court of Common Pleas than he had as the inaugural Vinerian Professor of English law at Oxford, his post-professorial legal life has been almost entirely ignored by scholars. Only one article, written almost fifty years ago and focused narrowly on legal doctrine, has offered any insight into Blackstone as a judge. And yet the subject is of great interest for two reasons. First, Blackstone was the first law professor to become a judge on an English common law court. Second, his judicial opinions provide an alternative, and arguably a ...