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A Case Study On Court Of Appeals Finality, Michael J. Nolan, Michael J. Nolan 2016 New York Court System

A Case Study On Court Of Appeals Finality, Michael J. Nolan, Michael J. Nolan

Michael J. Nolan

The article illustrates the New York Court of Appeals jurisdictional requirement of finality by tracing the history of a case in which leave to appeal was sought, and dismissed, 5 separate times.


Complete Preemption And Copyright: Toward A Successive Analysis, Mark Lindsay 2016 University of Georgia School of Law

Complete Preemption And Copyright: Toward A Successive Analysis, Mark Lindsay

Journal of Intellectual Property Law

No abstract provided.


Finding Certainty In Cert: An Empirical Analysis Of The Factors Involved In Supreme Court Certiorari Decisions From 2001-2015, Adam Feldman, Alexander Kappner 2016 University of Southern California

Finding Certainty In Cert: An Empirical Analysis Of The Factors Involved In Supreme Court Certiorari Decisions From 2001-2015, Adam Feldman, Alexander Kappner

University of Southern California Legal Studies Working Paper Series

The Supreme Court annually grants approximately 5% of the petitions to hear cases it receives. It denies petitions from the federal government, from large corporations, and from high-profile attorneys. The decisions of which petitions for writ of certiorari the Court grants sets the Court’s agenda each term and defines the issues which the Court will engage. With such a low likelihood that the Court hears any particular case, what makes a petition more or less likely to be granted? The focus of much of the existing scholarship on certiorari deals with the theoretical underpinnings of these judicial decisions. In ...


Who Wins In The Supreme Court? An Examination Of Attorney And Law Firm Influence, Adam Feldman 2016 University of Southern California

Who Wins In The Supreme Court? An Examination Of Attorney And Law Firm Influence, Adam Feldman

University of Southern California Legal Studies Working Paper Series

Who are the most successful attorneys in the Supreme Court? A novel way to answer this question is by looking at attorneys' relative influence on the course of the law. This article performs macro and micro-level analyses of the most successful Supreme Court litigators by examining the amount of language shared between nearly 9,500 Supreme Court merits briefs and their respective Supreme Court opinions from 1946 through 2013. The article also includes analyses of the most successful law firms according to the same metric.


Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe 2016 University of Ottawa Faculty of Law

Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe

Western Journal of Legal Studies

Section 231(5)(e) of the Criminal Code elevates murder to first-degree murder when a death is caused while committing unlawful confinement per s. 279 of the Criminal Code. The corresponding mandatory sentence is life imprisonment with no eligibility for parole until 25 years have been served. The Supreme Court of Canada held that this provision was constitutional in R v Luxton, since it did not violate the principles of fundamental justice and was not considered cruel and unusual punishment, contrary to s. 7 and 12 of the Canadian Charter of Rights and Freedoms, respectively.

However, lower courts ought to ...


What We Know (And Need To Know) About Court-Annexed Dispute Resolution, Deborah Thompson Eisenberg 2016 University of Maryland School of Law

What We Know (And Need To Know) About Court-Annexed Dispute Resolution, Deborah Thompson Eisenberg

Faculty Scholarship

Mediation and other alternative dispute resolution (ADR) processes are now well integrated into the United States judicial system, in both civil and criminal cases. This white paper, drafted for the American Bar Association Commission on the Future of Legal Services, summarizes empirical evidence about the costs and benefits of court-annexed ADR. The first-generation of ADR research found that mediation and other ADR processes resulted in high party satisfaction rates, high settlement rates, cost savings and efficiency, increased long-term cooperation among the parties, and higher compliance rates with the outcome. The paper then examines a ground-breaking study conducted by the Maryland ...


Trial And Error: Lawyers And Nonlawyer Advocates, Anna E. Carpenter, Alyx Mark, Colleen Shanahan 2016 University of Tulsa College of Law

Trial And Error: Lawyers And Nonlawyer Advocates, Anna E. Carpenter, Alyx Mark, Colleen Shanahan

Anna E. Carpenter

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as ...


Lawyers, Power, And Strategic Expertise, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark 2016 University of Tulsa College of Law

Lawyers, Power, And Strategic Expertise, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Anna E. Carpenter

This empirical study analyzes what the parties and lawyers described above experience – a party’s power, representation, and the strategic expertise they bring to a dispute. These factors clarify how representation may solve the access to justice crisis for low-income Americans. We find that a representative helps most parties most of the time, but the representation on the other side of the dispute and the representative’s strategic expertise are also significant factors for understanding representation for civil litigants.

This study analyzes a database of 1,700 unemployment insurance appeals in the District of Columbia over a two-year period, the ...


Democracy And Torture, Patrick A. Maurer 2016 SelectedWorks

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.


The Executive, Shubhankar Dam 2016 City University of Hong Kong

The Executive, Shubhankar Dam

Shubhankar Dam

India has a parliamentary system. The President is the head of the Union of India; the Prime Minister is the head of government.1 Along with his or her cabinet, the Prime Minister is responsible to the Lower House of Parliament.2 States have similar arrangements. They are formally headed by Governors. But chief ministers and their cabinets lead the governments. Executive power, ordinarily, is exercised by the Prime Minister, chief ministers and their respective councils of ministers. However, in keeping with India’s Westminster inheritance, such power often vests in the formal heads, and is exercised in their names ...


The Republican Senate And Regular Order, Carl W. Tobias 2016 University of Richmond

The Republican Senate And Regular Order, Carl W. Tobias

Law Faculty Publications

Now that the 114th Congress has reached the first session’s conclusion, the purported application of regular order to a major Senate constitutional duty—rendering advice and consent on presidential nominees—merits analysis. This evaluation illuminates serious deficiencies, which plagued 2015 confirmations. Especially important was the GOP’s failure to expeditiously suggest aspirants for White House consideration, and specifically failing to fill “judicial emergencies,” provide hearings and ballots swiftly, conduct floor debates when required rapidly, and confirm more than 11 judges all year. This obstruction has numerous deleterious consequences; the most significant, however, is not fulfilling the constitutional responsibility to ...


Minimizing Probate-Error Risk, Mark Glover 2016 University of Wyoming College of Law

Minimizing Probate-Error Risk, Mark Glover

University of Michigan Journal of Law Reform

Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been ...


Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Len Niehoff, Ashley Messenger 2016 University of Michigan Law School

Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Len Niehoff, Ashley Messenger

University of Michigan Journal of Law Reform

In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to steer ...


Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly 2016 University of Michigan Law School

Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly

University of Michigan Journal of Law Reform

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent ...


Shattering The Glass Ceiling In International Adjudication, Nienke Grossman 2016 University of Baltimore School of Law

Shattering The Glass Ceiling In International Adjudication, Nienke Grossman

All Faculty Scholarship

The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational ...


The Foreign Account Tax Compliance Act: The Solution Or The Problem?, Sophie S. Chou 2016 Claremont McKenna College

The Foreign Account Tax Compliance Act: The Solution Or The Problem?, Sophie S. Chou

CMC Senior Theses

Tax evasion has been happening for decades, but after the highly publicized cases with two foreign banks, LGT and UBS, the United States (US) is cracking down on tax evaders. The latest addition to the Internal Revenue Service (IRS)’s repertoire of enforcement tools is the Foreign Account Tax Compliance Act, otherwise known as FATCA. The Act was enacted to incentivize tax information release by foreign financial institutions (FFIs) who would otherwise face a 30% withholding tax on any US source income. The question was whether or not the design of the Act and its implementation successfully met this goal ...


How Context Shapes The Authority Of International Courts, Karen J. Alter, Laurence R. Helfer, Mikael Rask Madsen 2016 Duke Law School

How Context Shapes The Authority Of International Courts, Karen J. Alter, Laurence R. Helfer, Mikael Rask Madsen

Faculty Scholarship

This article provides a novel and provocative framework to assess the varied authority of international courts (ICs). We generate practicable metric that assesses de facto IC authority according to a conjunctive standard — the recognition of an obligation to comply with IC rulings, and the engagement in meaningful actions that push toward giving full effect to IC rulings. We then identify five possible types of IC authority — no authority in fact, narrow, intermediate, extensive, and public authority — that correspond to the different audiences for IC rulings. The goal of this metric is to help the contributors to a symposium on ICs ...


Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer 2016 Duke Law School

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member ...


Privatizing Public Litigation, Margaret H. Lemos 2016 Duke Law School

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing ...


Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel 2016 Duke Law School

Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal ...


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