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Faculty Scholarship

2005

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Institution
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Articles 1 - 20 of 20

Full-Text Articles in Courts

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin Nov 2005

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

Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …


Unpublished Opinions And No Citation Rules In The Trial Courts, J. Thomas Sullivan Oct 2005

Unpublished Opinions And No Citation Rules In The Trial Courts, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.


Lochner: Another Time, Another Place Symposium: Lochner Centennial Conference, Larry Yackle Jun 2005

Lochner: Another Time, Another Place Symposium: Lochner Centennial Conference, Larry Yackle

Faculty Scholarship

Professor Lynn Baker's contribution to this symposium' extends her longterm project both to defend and to critique the Supreme Court's decisions on the scope of congressional power.2 I find this work valuable and not a little provocative. If Baker's account of the decisions thus far is even partly right, the Court is poised to assume decision-making responsibility that has long been ceded to Congress. If her proposals for the future are adopted, we are in for a cataclysmic constitutional event that rivals the convulsive period when the nation confronted the judicial arrogation of authority associated (rightly or wrongly) with the …


Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank Apr 2005

Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank

Faculty Scholarship

No abstract provided.


Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski Jan 2005

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …


Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young Jan 2005

Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young

Faculty Scholarship

No abstract provided.


Judging The Law Of Politics, Guy-Uriel Charles Jan 2005

Judging The Law Of Politics, Guy-Uriel Charles

Faculty Scholarship

In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, "The Supreme Court and Election Law," against the recent work of a leading structuralist, Professor Richard Pildes' recent Foreword to the Harvard Law Review. I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship …


Representing Children In Families, Bruce A. Green, Annette R. Appell Jan 2005

Representing Children In Families, Bruce A. Green, Annette R. Appell

Faculty Scholarship

No abstract provided.


Take What You Can, Give Nothing Back: Judicial Estoppel, Employment Discrimination, Bankruptcy, And Piracy In The Courts, Theresa M. Beiner, Robert B. Chapman Jan 2005

Take What You Can, Give Nothing Back: Judicial Estoppel, Employment Discrimination, Bankruptcy, And Piracy In The Courts, Theresa M. Beiner, Robert B. Chapman

Faculty Scholarship

No abstract provided.


2003-2004 Supreme Court Update, Erwin Chemerinsky Jan 2005

2003-2004 Supreme Court Update, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Globalizing Savigny: The State In Savigny’S Private International Law, And The Challenge Of Europeanization And Globalization, Ralf Michaels Jan 2005

Globalizing Savigny: The State In Savigny’S Private International Law, And The Challenge Of Europeanization And Globalization, Ralf Michaels

Faculty Scholarship

How can conflict of laws respond to the challenges from globalization? Some argue that state-based approaches like governmental interest analysis are inadequate, and advocate a return to the approach taken by the German scholar Savigny in the 19th century. The article shows that the assumption is correct: state-based approaches have indeed become problematic. However, a return to Savigny's approach will not help: While Savigny's approach is multilateral and pays little regard to governmental interest, closer analysis reveals how central the state is to his theory. The consequences are shown in an analysis of a recent European case. It follows that …


Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck Jan 2005

Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck

Faculty Scholarship

No abstract provided.


Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati Jan 2005

Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

No abstract provided.


Colored Speech: Cross Burnings, Epistemics, And The Triumph Of The Crits?, Guy-Uriel Charles Jan 2005

Colored Speech: Cross Burnings, Epistemics, And The Triumph Of The Crits?, Guy-Uriel Charles

Faculty Scholarship

This Essay examines the Court's recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court's conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas's active participation as a matter of epistemic authority and epistemic deference.


Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith Jan 2005

Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the …


Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty Jan 2005

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.


Terrorism: The Politics Of Prosecution, Madeline Morris Jan 2005

Terrorism: The Politics Of Prosecution, Madeline Morris

Faculty Scholarship

No abstract provided.


Foreign Law And The Denominator Problem, Ernest A. Young Jan 2005

Foreign Law And The Denominator Problem, Ernest A. Young

Faculty Scholarship

No abstract provided.


Why States Create International Tribunals: A Response To Professors Posner And Yoo, Laurence R. Helfer, Anne-Marie Slaughter Jan 2005

Why States Create International Tribunals: A Response To Professors Posner And Yoo, Laurence R. Helfer, Anne-Marie Slaughter

Faculty Scholarship

A recent article in the California Law Review by Professors Eric Posner and John Yoo, Judicial Independence in International Tribunals, argues that the only effective international tribunals are dependent tribunals, by which the authors mean ad hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation. Independent tribunals, by contrast, meaning tribunals staffed by judges appointed on similar terms as those in domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent tribunals are suspect because they are more likely to allow moral ideals, ideological imperatives or the …


Introduction, David J. Seipp Jan 2005

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.