Courts Commons^™

An Emerging Uniformity For International Law, David H. Moore

ExpressO

The status of international law in the U.S. legal system has been hotly contested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court’s decision in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), stoked the debate. In Sosa’s wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law.

This Article asserts that Sosa has been both misperceived …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan

Donald J. Kochan

Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from …

Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …

Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic Nelson Smalkin, Frederic Nelson Chancellor Smalkin

ExpressO

This article takes a fresh look at the increasingly discussed topic of the scarcity of civil cases reaching trial in the Article III system. The number of cases tried declined by more than one-fourth in the decade from 1989-1999, and the decline continued at about the same rate to the end of the latest year for which statistics are available, 2002, while ADR (particularly arbitrations) skyrocketed.

The authors examine the history of competing English courts (particularly Common Pleas and King's Bench) for signs that, in fact, market competition can arise among dispute-resolving bodies. They also apply economic analysis to the …

Revisiting Erie, Guaranty Trust, And Gasperini: The Role Of Jewish Social History In Fashioning Modern American Federalism, Daniel R. Gordon

Seattle University Law Review

This article explores the connection between traditional Jewish localism and the creation of modern American federalism that flows from the Erie doctrine. First, the riddle of Gasperiniis explored. Next, the federalist philosophies of Justices Brandeis and Frankfurter in Erie and Guaranty Trust are discussed. Finally, the article analyzes how Justices Brandeis, Frankfurter, and Ginsburg, as twentieth century American Jews, embody the traditional Jewish minority experience that, at least in part, was informed by anti-Semitism.

Court Fixing, Tracey E. George

Vanderbilt Law School Faculty Publications

This Article critically examines the existing social science evidence on the relative importance of various individual factors on judicial behavior and adds to that evidence by considering the influence of prior academic experience on judges. Researchers have not focused much attention on the importance of a judge's background as a full-time law professor and legal scholar, although more than thirteen percent of courts of appeals appointees were former law professors. Franklin Roosevelt and Ronald Reagan both viewed the federal judiciary (particularly the Supreme Court and the Courts of Appeals) as integral to their policy agendas, and both further believed that …

La Preuve Pénale Et Des Tests Génétiques: United States Report, Christopher L. Blakesley

Scholarly Works

A major problem for those analyzing U.S. criminal law and procedure is that it does not fit the Continental or British mold. There is no one single system, but parallel federal and 50 state systems each with its own legislature, laws, courts (including trial, appellate, and supreme courts), police, prosecutors and prisons. The authorities who enact and implement these laws are sovereign within their respective jurisdictions. Each state has police power over its people. The 10th amendment to the U.S. Constitution controls allocation of federal and state authority. It provides that whatever the Constitution has not designated as being within …

Constitutional Structure As A Limitation On The Scope Of The "Law Of Nations" In The Alien Tort Claims Act, Donald J. Kochan

Donald J. Kochan

Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a …

Brown V. State Of New York: Judge Simons Says New York State Can Be Held Liable For Money Damages, Eric J. Stockel

Touro Law Review

No abstract provided.

The Supreme Court's Land Use Decisions, Hon. Leon D. Lazer

Touro Law Review

No abstract provided.

International Law Principles Governing The Extraterritorial Application Of Criminal Law, Christopher L. Blakesley

Scholarly Works

In this piece Professor Blakesley provides remarks on the differences and similarities between Germany and the United States on international principles of jurisdiction over extraterritorial crime.

Environmental Law, Honorable Leon D. Lazer

Touro Law Review

No abstract provided.

Jurisdiction Of The County Court

Touro Law Review

No abstract provided.

Trial By Jury

Touro Law Review

No abstract provided.

State Crime In The Federal Forum, Roger J. Miner '56

Criminal Law

No abstract provided.

The Process Of Decision-Making In Tribal Courts, Tom Tso

Natural Resource Development in Indian Country (Summer Conference, June 8-10)

11 pages.

The Clean Water Act, Water Quality, And Water Use, Bruce D. Ray

Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3)

56 pages.

Includes unsigned annotations by David Getches.

The State Of New York's State Federal-Judicial Council, Hon. George C. Pratt

Touro Law Review

No abstract provided.

The Continuing Diminished Availability Of Federal Habeas Corpus Review To Challenge State Court Judgments: Lehman V. Lycoming County Children's Servies Agency, Ira P. Robbins, Susan M. Newell

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Developing Role Of The Magistrate In The Federal Courts, Jack B. Streepy

Cleveland State Law Review

Many practicing attorneys are unfamiliar with the role of the United States Magistrate in the federal judicial system. This article is intended to offer some insight into that role, both nationally and in the United States District Court for the Northern District of Ohio.

The Developing Role Of The Magistrate In The Federal Courts, Jack B. Streepy

Cleveland State Law Review

Many practicing attorneys are unfamiliar with the role of the United States Magistrate in the federal judicial system. This article is intended to offer some insight into that role, both nationally and in the United States District Court for the Northern District of Ohio.

Federal Jurisdiction-Three-Judge Courts-The Recent Evolution In Jurisdiction And Appellate Review, Peter W. Williamson S.Ed.

Michigan Law Review

This comment seeks to analyze each decision against its historical background. No more than a proforma attempt will be made to integrate one decision with the others, for sufficient material is not yet available to predict with any accuracy the Court's ultimate achievements in this important area of federal civil procedure.