Jurisprudence Commons^™

Habeas Corpus In The Age Of Guantánamo, Cary Federman

Cary Federman

The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then, I …

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Robert B. Ahdieh

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Executive Action And Nonaction, Tom Campbell

Tom Campbell

Wrestling With Punishment: The Role Of The Bc Court Of Appeal In The Law Of Sentencing, Benjamin Berger, Gerry Ferguson

Benjamin L. Berger

This article, one in a collection of articles on the history and jurisprudential contributions of the British Columbia Court of Appeal on the occasion of its 100th anniversary, looks at the role and the work of the court in the area of sentencing since the court was first given jurisdiction to hear sentence appeals in 1921. In the three broad periods that we canvass, we draw out the sometimes surprising, often unique, and frequently provocative ways in which the BCCA has, over its history, wrestled with the practice of criminal punishment and, with it, the basic assumptions of our system …

Advocacy Through Briefs In The U.S. Court Of Appeals., Susan B. Haire, Laura P. Moyer

Laura Moyer

The focus of this paper is to evaluate the role of advocates in the U.S. Court of Appeals for the Seventh Circuit by examining the characterization of issues offered in appellate briefs against the issues addressed in the court's decisions. Specifically, in an environment in which attorneys are expected to frame the issues on appeal and judges are expected to respond to those issues, what accounts for judges addressing some issues while suppressing others? By explicitly focusing on how the substantive content of an opinion is shaped, we depart from other, earlier scholarship on the advantages of "repeat player" litigants …

The Scope Of Precedent, Randy J. Kozel

Randy J Kozel

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial …

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Randy J Kozel

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …

The Inherent Power To Impose Sanctions: How A Federal Judge Is Like An 800-Pound Gorilla, Thomas E. Baker

Thomas E. Baker

Inherent sanctions, like Rule 11 sanctions, may be imposed against any person responsible for wrongdoing, regardless of whether that person is a litigant or an attorney. Sanctionable wrongdoing includes pre litigation misconduct, as well as abuses of process that occur beyond the courtroom, such as the willful disobedience of an otherwise valid court order, so long as the court affords a violation due process before imposing sanctions. In addition to Rule 11's function as a deterrent, inherent sanctions further the goals of compensation and punishment.

The Gravitational Force Of Federal Law, Scott Dodson

Scott Dodson

Deeds And The Determinacy Norm: Insights From Brandt And Other Cases On An Undesignated, Yet Ever-Present, Interpretive Method, Donald J. Kochan

Donald J. Kochan

Dealing With Dirty Deeds: Matching Nemo Dat Preferences With Property Law Pragmatism, Donald J. Kochan

Donald J. Kochan

Access To Justice For A New Century: The Way Forward, Julia H. Bass, W. A. Bogart, Frederick H. Zemans

Frederick H. Zemans

This book is a timely addition to the literature on access to justice. The book's essays address all aspects of the topic, including differing views on the meaning of access to justice; ways to improve access to legal services; litigation and its role in achieving social justice; and the roles of lawyers, citizens, and legal insitutions.

Access to Justice for a New Century is based on papers given at an international symposium presented by the Law Society of Upper Canada, sponsored by the Law Foundation of Ontario.

Precedent And Legal Authority: A Critical History, Charles W. Collier

Charles W. Collier

In this Article, Professor Charles Collier traces out a general theory of precedential authority through historical sources. The Article focuses on three particularly influential views of precedent: Wambaugh's concept of dictum, Oliphant's concept of stare decisis, and Goodhart's concept of ratio decidendi. These views illustrate an underlying tension between two distinct doctrines of precedential authority. The first doctrine, derived from humanistic thought, restricts-legal authority as narrowly as possible to the express terms of an original text. The second doctrine draws on the broad, generalizing tendencies of the empirical sciences and their corresponding conceptions of scientific authority. The two doctrines coexist …

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, 28 U. Mich. J.L. Reform 305 (1995), Matthew R. Kipp, Paul B. Lewis

Paul Lewis

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the …

Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford

William K. Ford

No abstract provided.

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford

William K. Ford

This Article tests a model of judicial decision making that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of …

E-Obviousness, Glynn S. Lunney Jr.

Glynn Lunney

As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …

Foreword, 37 J. Marshall L. Rev. 317 (2004), Samuel R. Olken

Samuel R. Olken

No abstract provided.

“Stop Me Before I Get Reversed Again”: The Failure Of Illinois Appellate Courts To Protect Their Criminal Decisions From United States Supreme Court Review, 36 Loy. U. Chi. L.J. 893 (2005), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.

The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.

The International Criminal Court And Proximity To The Scene Of The Crime: Does The Rome Statute Permit All Of The Icc's Trials To Take Place At Local Or Regional Chambers?, 43 J. Marshall L. Rev. 715 (2010), Stuart K. Ford

Stuart Ford

No abstract provided.

The Scope Of Precedent, Randy J. Kozel

Randy J Kozel

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

The Supreme Court 1997 Term -- Foreword: The Limits Of Socratic Deliberation, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Foreward: The Most Confusing Branch, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise

Michael Heise

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take? Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this …

"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker

Eric M. Tucker

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a …

The Process Of International Law-Making: The Relationship Between The International Court Of Justice And The International Law Commission, Marija Dordeska

Dr Marija Dordeska

Literary Justice, Scott Dodson, Ami Dodson

Scott Dodson

This microsymposium essay empirically (and somewhat humorously) measures which current U.S. Supreme Court justice is the most literate, as determined by citations to great works of literary fiction. It further identifies the justices' favorite literary authors. Consistent with the mission of the Green Bag, the essay is meant to be lighthearted and entertaining, but it also recognizes the underlying importance of the intersection of legal opinion-writing and literary fiction.