Judges Commons^™

Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller

Russell A. Miller

This Article examines Justice Ginsburg's overlooked federalism jurisprudence and concludes that it almost perfectly complements President Bill Clinton's New Democratic centrism, especially his pro-state federalism agenda. The Article concludes that their nuanced, "centrist" approach to federalism has two characteristics. First,t hey value the states 'governing autonomy and show respect for the state agents that realize that autonomy. Second, they credit the states as intersubjective actors engaged in the pursuit of their interests, albeit in political processes usually carried out at the federal level.

The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan

Donald J. Kochan

This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence. In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right to exclude, ownership, dominion, authority, …

Originalism, Balanced Legal Realism And Judicial Selection: A Case Study, Stephen Ware

Stephen Ware

An Estate Dilemma - Inaccessible Assets Hiding Behind Passwords And Encryption, Douglas J. Henderson

DOUGLAS J HENDERSON

Every person living in the modern world holds valuable assets, data, or information in digital mediums. Digital mediums include not only digital hardware storage mediums in personal possession (like external hard drives and internal hard drives within laptop and desktop computers, personal digital assistants, cell phones, and the like), but also those only accessible through a network. Because so much is held in digital mediums, when an individual dies or becomes incapacitated, another person must know how to access the incapacitated person’s digital assets and other important information (this person is known herein as the ‘Responsible Party’). There are potential …

Altruism Trumping Privacy Hipaa, Privacy, Big Data Set Benefits, Douglas J. Henderson

DOUGLAS J HENDERSON

The United States Government must administer a publicly held cloud networked Big Data Set of Private Health Information (PHI) in order to utilize Big Data Analytics and allow free data mining of such PHI so that the health care industry can operate most cost effectively while also meeting the health care needs of the aging United States populace with the highest quality of care.

Altruism Trumping Privacy Hipaa, Privacy, Big Data Set Benefits, Douglas J. Henderson

DOUGLAS J HENDERSON

The United States Government must administer a publicly held cloud networked Big Data Set of Private Health Information (PHI) in order to utilize Big Data Analytics and allow free data mining of such PHI so that the health care industry can operate most cost effectively while also meeting the health care needs of the aging United States populace with the highest quality of care.

The Targeted Killing Judgment Of The Israeli Supreme Court And The Critique Of Legal Violence, Markus Gunneflo

Markus Gunneflo

The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921, ‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities of ‘legal violence’ – lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that the Court exercises jurisdiction over these …

The Targeted Killing Judgment Of The Israeli Supreme Court And The Critique Of Legal Violence, Markus Gunneflo

Markus Gunneflo

The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921, ‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities of ‘legal violence’ – lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that the Court exercises jurisdiction over these …

Catholics In Public Life: Judges, Legislators, And Voters, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

Does the desire to avoid culpable cooperation in moral evil make the conscientious Catholic judge unfit for judicial service in a constitutional system that will inevitably bring before the judge cases that implicate a host of issues as to which the Church offers moral teaching? Confused answers to this question reflect a larger confusion which often accompanies contemporary discussion of questions related to Catholic participation in public life. The confusion stems in large part from a failure to recognize that Catholics participate in public life in different ways that give them different sorts of public roles. This Essay tries to …

The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown

George D. Brown

The federal gratuities statute, 18 USC § 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and …

Toward A More Independent Grand Jury: Recasting And Enforcing The Prosecutor’S Duty To Disclose Exculpatory Evidence, R. Michael Cassidy

R. Michael Cassidy

This Article analyzes the Supreme Court’s decision in Williams, in which the Court struck down an attempt by the Tenth Circuit to impose an obligation on federal prosecutors to disclose substantial exculpatory evidence to the grand jury. The author discusses the contours of this case and the ethical underpinnings of a prosecutor’s disclosure obligations before the grand jury, and sets forth a new framework for consideration of such issues.

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

Who Happens Here? Ethical Responsibility, Subjectivity, And Corporeality: Self-Accounts In The Archive Of The Coalition Provisional Authority (Cpa) Of Iraq, Matilda Arvidsson

Dr Matilda Arvidsson

No abstract provided.

Pvip Transitional Peer Mentors, Douglas J. Henderson

DOUGLAS J HENDERSON

Project VETS Intervention Program (PVIP) – Hamilton County, Ohio In early 2010 Hamilton County, Ohio was chosen as the pilot site for a federally funded jail diversion intervention program – the project was named Project VETS Intervention Program (PVIP). The SAMHSA National Gains Center awarded the State of Ohio grant money as part of its second round of funding, which was aimed at helping the existing and increasing veteran criminally justice involved population, and their families, with a priority given to Operation Enduring Freedom/Operation Iraqi Freedom veterans who have suffered from Post Traumatic Stress Disorder (PTSD)/Traumatic Brain Injury (TBI). The …

Procuring "Justice"?: Citizens United, Caperton V. Massey, And Partisan Judicial Elections, André Douglas Pond Cummings

andré douglas pond cummings

In recent years, two inextricably connected issues have received a great deal of attention in both United States political discourse and in the legal academic literature. One issue of intense legal debate and frustration has been that of judicial recusal, including an examination of the appropriate standards that should necessarily apply to judges that seem conflicted or biased in their role as neutral arbiter. A second issue that has spawned heated commentary and great dispute over the past decade is that of campaign finance law, including examination of the role that powerful and wealthy benefactors play in American electioneering. Both …

Winterthouhgts, Matilda Arvidsson

Matilda Arvidsson

No abstract provided.

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …

The Missouri Plan In National Perspective, Stephen Ware

Stephen Ware

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …

Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan

Donald J. Kochan

Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan

Donald J. Kochan

With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent of …

The Unconstitutionality Of Class-Based Statutory Limitations On Presidential Nominations: Can A Man Head The Women's Bureau At The Department Of Labor?, Donald J. Kochan

Donald J. Kochan

Can a man be the Director of the Women’s Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women’s Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters? This Article’s case study is particularly relevant today, examining just how far Congress can go to limit the discretion of …

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 …

State Laws And The Independent Judiciary: An Analysis Of The Effects Of The Seventeenth Amendment On The Number Of Supreme Court Cases Holding State Laws Unconstitutional, Donald J. Kochan

Donald J. Kochan

In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying …

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 …

"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan

Donald J. Kochan

This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use through an application of public choice theory. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by interest group politics and public choice theory and by institutional tendencies inherent in the independent judiciary. Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it …

Judicial Ethics, Law Clerks And Politics, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.