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2003

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Articles 1 - 27 of 27

Full-Text Articles in Jurisprudence

Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner Dec 2003

Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner

All Faculty Scholarship

Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the ...


For And Against Marriage: A Revision., Anita Bernstein Nov 2003

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.


No-Citation Rules Under Siege: A Battlefield Report And Analysis, Stephen R. Barnett Oct 2003

No-Citation Rules Under Siege: A Battlefield Report And Analysis, Stephen R. Barnett

The Journal of Appellate Practice and Process

No abstract provided.


Federal Court Authority To Regulate Lawyers: A Practice In Search Of A Theory Of A, Fred C. Zacharias, Bruce A. Green Oct 2003

Federal Court Authority To Regulate Lawyers: A Practice In Search Of A Theory Of A, Fred C. Zacharias, Bruce A. Green

Vanderbilt Law Review

Federal courts regulate lawyers, including federal prosecutors, by enforcing various constitutional, statutory, and other legal constraints. Federal courts also adopt and enforce their own disciplinary rules pursuant to rule-making authority delegated by Congress. To what extent, however, do federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors? Although lower federal courts have long exercised power both to define and to sanction professional misconduct, the United States Supreme Court has never clarified the source and scope of this authority.

This issue is important for two reasons. First, most federal ...


In The Stream Of The Commerce Clause: Revisiting Asahi In The Wake Of Lopez And Morrison, Andrew Kurvers Spalding Sep 2003

In The Stream Of The Commerce Clause: Revisiting Asahi In The Wake Of Lopez And Morrison, Andrew Kurvers Spalding

Nevada Law Journal

No abstract provided.


Legal Indeterminacy And Institutional Design, Michael C. Dorf Jun 2003

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.


Appellate Courts Inside And Out, Maxwell L. Stearns May 2003

Appellate Courts Inside And Out, Maxwell L. Stearns

Michigan Law Review

While the United States Supreme Court has been the object of seemingly endless scholarly commentary, the United States Courts of Appeals are just now coming into their own as a subject of independent academic inquiry. This is an important development when one considers that the vast bulk of relevant precedents governing most federal court litigation comes not from the Supreme Court, but rather from the United States Courts of Appeals. Because relatively few courts of appeals decisions are reviewed in the Supreme Court, with rare exception, the federal circuit courts provide the functional equivalent of that Court's proverbial "last ...


First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben Apr 2003

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First ...


Manual De Derecho Procesal Civil, Edward Ivan Cueva Feb 2003

Manual De Derecho Procesal Civil, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.


Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule Feb 2003

Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule

Michigan Law Review

Suppose that a statute, enacted several decades ago, bans the introduction of any color additive in food if that additive "causes cancer" in human beings or animals. Suppose that new technologies, able to detect low-level carcinogens, have shown that many potential additives cause cancer, even though the statistical risk is often tiny - akin to the risk of eating two peanuts with governmentally-permitted levels of aflatoxins. Suppose, finally, that a company seeks to introduce a certain color additive into food, acknowledging that the additive causes cancer, but urging that the risk is infinitesimal, and that if the statutory barrier were applied ...


Interpretive Theory In Its Infancy: A Reply To Posner, Cass R. Sunstein, Adrien Vermeule Feb 2003

Interpretive Theory In Its Infancy: A Reply To Posner, Cass R. Sunstein, Adrien Vermeule

Michigan Law Review

In law, problems of interpretation can be explored at different levels of generality. At the most specific level, people might urge that the Equal Protection Clause forbids affirmative action, or that the Food and Drug Act applies to tobacco products. At a higher level of generality, people might argue that the Equal Protection Clause should be interpreted in accordance with the original understanding of its ratifiers, or that the meaning of the Food and Drug Act should be settled with careful attention to its legislative history. At a still higher level of generality, people might identify the considerations that bear ...


Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner Feb 2003

Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner

Michigan Law Review

Cass Sunstein and Adrian Vermeule argue in Interpretation and lnstitutions that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic to the point of being immodest, is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better ...


Strict Criminal Liability Limiting The State's Power To Condemn, Andrew Verstein Jan 2003

Strict Criminal Liability Limiting The State's Power To Condemn, Andrew Verstein

Lecturer and Other Affiliate Scholarship Series

H. L. A. Hart argues that strict criminal liability often undermines the moral condemnation associated with punishment and therefore its capacity for deterrence. Hart explains that insofar as legal punishment expresses the "odium, if not the hostility" of a community towards those who break its laws strict liability forces us to either condemn those who are not deserving of condemnation or to negate the moral condemnation of the law in general. One choice is immoral and the other reduces the effectiveness of a significant deterrent and is therefore counterproductive. Either way, the consequences of strict liability are undesirable. In this ...


Foreword, Sam Hanson Jan 2003

Foreword, Sam Hanson

William Mitchell Law Review

Introduction to issue of Recent Decisions of the Minnesota Supreme Court (from 2002-03 term).


The Creativity Of The Common-Law Judge: The Jurisprudence Of William Mitchell, Charles J. Reid Jr. Jan 2003

The Creativity Of The Common-Law Judge: The Jurisprudence Of William Mitchell, Charles J. Reid Jr.

William Mitchell Law Review

Mitchell's presence graced the Minnesota Supreme Court for nearly nineteen years, from 1881 to 1900. His output was prodigious. He produced nearly 1600 judicial opinions. It has been estimated “that excluding Sundays, and allowing a month in each year for vacation, Judge Mitchell wrote one opinion in every three days for nineteen years.” Indeed, “[i]n point of numbers, his opinions exceed those of any other justice of the Supreme Court of his state, or the nation.” It is one aspect, perhaps the central aspect, the unifying theme of this prolific body of work, that is the focus of ...


The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca Jan 2003

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and ...


Covering Women And Violence: Media Treatment Of Vawa's Civil Rights Remedy, Sarah F. Russell Jan 2003

Covering Women And Violence: Media Treatment Of Vawa's Civil Rights Remedy, Sarah F. Russell

Michigan Journal of Gender & Law

This Article analyzes how newspapers described and characterized the civil rights provision over the past decade and shaped the public discourse about the law. The author examines how lower federal courts, and eventually the Supreme Court, categorized the VAWA remedy when deciding whether Congress had acted within its commerce powers. After considering why there may have been resistance in the press and in the courts to VAWA's categorization of violence against women as a civil rights issue, the author concludes by examining the remedies that have been introduced at the state and local level for victims of gender-motivated violence ...


Holmes, Common Law Theory, And Judicial Restraint, 36 J. Marshall L. Rev. 457 (2003), Frederic R. Kellogg Jan 2003

Holmes, Common Law Theory, And Judicial Restraint, 36 J. Marshall L. Rev. 457 (2003), Frederic R. Kellogg

The John Marshall Law Review

No abstract provided.


Behind The Words: Interpreting The Hobbs Act Requirement Of "Obtaining Of Property From Another", 36 J. Marshall L. Rev. 295 (2003), Kristal S. Stippich Jan 2003

Behind The Words: Interpreting The Hobbs Act Requirement Of "Obtaining Of Property From Another", 36 J. Marshall L. Rev. 295 (2003), Kristal S. Stippich

The John Marshall Law Review

No abstract provided.


Americans With Disabilities Act (Ada), Seventh Circuit Review, 36 J. Marshall L. Rev. 953 (2003), Paul Cherner, Abel Leon Jan 2003

Americans With Disabilities Act (Ada), Seventh Circuit Review, 36 J. Marshall L. Rev. 953 (2003), Paul Cherner, Abel Leon

The John Marshall Law Review

No abstract provided.


The Twenty-Eighth Amendment: Why The Constitution Should Be Amended To Grant Congress The Power To Legislate In Furtherance Of The General Welfare, 36 J. Marshall L. Rev. 327 (2003), Casey L. Westover Jan 2003

The Twenty-Eighth Amendment: Why The Constitution Should Be Amended To Grant Congress The Power To Legislate In Furtherance Of The General Welfare, 36 J. Marshall L. Rev. 327 (2003), Casey L. Westover

The John Marshall Law Review

No abstract provided.


Democracy, Judicial Review And The Rule Of Law In The Age Of Terrorism: The Experience Of Israel - A Comparative Perspective, 31 Ga. J. Int'l & Comp. L. 493 (2003), Ralph Ruebner Jan 2003

Democracy, Judicial Review And The Rule Of Law In The Age Of Terrorism: The Experience Of Israel - A Comparative Perspective, 31 Ga. J. Int'l & Comp. L. 493 (2003), Ralph Ruebner

UIC John Marshall Law School Open Access Faculty Scholarship

No abstract provided.


Into The Abyss: How Party Autonomy Supports Overreaching Through The Exercise Of Unequal Bargaining Power, 36 J. Marshall L. Rev. 421 (2003), Pamela Edwards Jan 2003

Into The Abyss: How Party Autonomy Supports Overreaching Through The Exercise Of Unequal Bargaining Power, 36 J. Marshall L. Rev. 421 (2003), Pamela Edwards

The John Marshall Law Review

No abstract provided.


The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch Jan 2003

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.


Judicial Independence In Family Courts, Barbara A. Babb, Judith D. Moran Jan 2003

Judicial Independence In Family Courts, Barbara A. Babb, Judith D. Moran

All Faculty Scholarship

No abstract provided.


What Do We Mean By "Judicial Independence"?, Stephen B. Burbank Jan 2003

What Do We Mean By "Judicial Independence"?, Stephen B. Burbank

Faculty Scholarship at Penn Law

In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of ...


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 Dec 2002

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 ...