Decisional Sequencing, 2010 University of Georgia Law School
Decisional Sequencing, Peter B. Rutledge
Judicial decisionmaking consists of two sets of choices – (1) how to resolve the issues in a case and (2) how to decide the order in which those issues will be resolved. Much legal scholarship focuses on the first question; too little focuses on the second. This Article aims to fill that gap. Drawing across disciplines – philosophy, economics and political science – this Article articulates a theory of “decisional sequencing.” Decisional sequencing concerns the extent to which legal rules constrain – and do not constrain – the order in which judges and other quasi-judicial actors (like arbitrators) decide matters before them. To what extent ...
Equitable Balancing In The Age Of Statutes, 2010 Roger Williams University School of Law
Equitable Balancing In The Age Of Statutes, Jared Goldstein
Law Faculty Scholarship
No abstract provided.
On Not Being “Not An Originalist”, 2010 Duke Law School
On Not Being “Not An Originalist”, H. Jefferson Powell
No abstract provided.
Nature Or Nurture? Judicial Lawmaking In The European Court Of Justice And The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter
Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts’ authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies ...
A Coase Theorem For Constitutional Theory, 2010 Duke Law School
A Coase Theorem For Constitutional Theory, Neil S. Siegel
There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim—that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion—is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan ...
Punishing Juveniles: Is Life Without Parole Too Cruel?, 2010 Loyola University Chicago, School of Law
Punishing Juveniles: Is Life Without Parole Too Cruel?, Amy Mccarthy
Public Interest Law Reporter
No abstract provided.
The International Criminal Court: An Informal Overview, 2010 Loyola University Chicago
The International Criminal Court: An Informal Overview, Jerry E. Norton
Faculty Publications & Other Works
No abstract provided.
Judicial Independence And Company Law In The Shanghai People's Courts, 1992-2008, 2010 University of Michigan School of Law
Judicial Independence And Company Law In The Shanghai People's Courts, 1992-2008, Nicholas C. Howson
This chapter draws on a detailed study of corporate law adjudication in Shanghai from 1992 to 2008. The purpose of the study was to better understand the demonstrated technical competence, institutional autonomy, and political independence of one court system in the People's Republic of China ("PRC") in a sector outside of the criminal law. The study consisted of a detailed examination and comparison of full-length corporate law opinions for more than 200 reported cases, a 2003 Shanghai High Court opinion on the 1994 Company Law (describing a decade of corporate case outcomes), a 2007 report on cases implementing the ...
The European Court Of Justice And The Judicialization Of Eu Governance, 2010 Yale Law School
The European Court Of Justice And The Judicialization Of Eu Governance, Alec Stone Sweet
Faculty Scholarship Series
For their part, social scientists have produced more research on the ECJ, and its impact on markets and politics, than on any other court in the world, with the single exception of the United States Supreme Court. This article concentrates on three dimensions of the ECJ’s impact. First, blending quantitative and qualitative methods, scholars have conclusively demonstrated that the legal system exerted decisive influence on market and political integration in Europe, pushing the project further and faster than the Member States had been prepared to go on their own. As ultimately constructed, the courts proved to be effective mechanisms ...
Why Did China Reform Its Death Penalty?, 2010 Santa Clara University School of Law
Why Did China Reform Its Death Penalty?, Kandis Scott
China recently reformed its death penalty laws, and as a result the government has executed fewer prisoners. The author explores possible reasons and policy concerns behind China's legal reform. These influences include international forces and domestic factors, such as the media, changed circumstances, compassion, and politics. Although hardly transparent, the underlying motivations for the revisions suggest that eventually China may abolish capital punishment, perhaps even before the United States does so.
Cost And Fee Allocation In Civil Procedure, 2010 University of Baltimore School of Law
Cost And Fee Allocation In Civil Procedure, James Maxeiner
All Faculty Scholarship
Court costs in American civil procedure are allocated to the loser ("loser pays") as elsewhere in the civilized world. As Theodor Sedgwick, America's first expert on damages opined, it is matter of inherent justice that the party found in the wrong should indemnify the party in the right for the expenses of litigation. Yet attorneys' fees are not allocated this way in the United States: they are allowed to fall on the party that incurs them (the ''American rule," better, the American practice). According to Albert Ehrenzweig, Austrian judge, emigre and then prominent American law professor, the American practice ...
E Pluribus Unum: Data And Operations Integration In The California Criminal Justice System, 2010 Santa Clara University School of Law
E Pluribus Unum: Data And Operations Integration In The California Criminal Justice System, W. David Ball
This Article reflects some of the insights from the Stanford Criminal Justice Center's (SCJC's) year-long project on data and operations integration in California's criminal justice system. Part I lays out some of the benefits of an integrated system as a means of illustrating why law enforcement agencies across the state are actively pursuing data integration. Part II discusses three organizational and political obstacles to creating an integrated system: defining what we mean by the criminal justice "system," drawing boundaries of relevant networks, and resolving tensions among state and local agencies with concurrent jurisdiction. Part III then discusses ...
Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, 2010 University of Pennsylvania
Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, Catherine T. Struve
No abstract provided.
China's Judicial System And Judicial Reform, 2010 University of Michigan Law School
China's Judicial System And Judicial Reform, Nicholas C. Howson
The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and ...
International Criminal Courts And The Making Of Public International Law: New Roles For International Organizations And Individuals, 2010 University of Arkansas at Little Rock William H. Bowen School of Law
International Criminal Courts And The Making Of Public International Law: New Roles For International Organizations And Individuals, Kenneth S. Gallant
Judicial decisions of the International Criminal Court and other international criminal tribunals now serve as instances of practice and statements of opinio juris for the formation of customary international criminal law and customary international human rights law related to criminal law and procedure. In these areas of law and others, they are no longer “subsidiary” sources as that word is used in the International Court of Justice Statute, Art. 38. In the same fields of customary international law, other binding acts of international organizations, such as the UN Security Council, are also used as practice, and the statements of these ...
Pioneers Versus Improvers: Enabling Optimal Patent Claim Scope, 2010 Stanford Law School
Pioneers Versus Improvers: Enabling Optimal Patent Claim Scope, Timothy Chen Saulsbury
Michigan Telecommunications and Technology Law Review
Arising most commonly as a defense to an infringement claim, enablement requires a patent to describe the claimed invention in sufficient detail to permit a person having ordinary skill in the relevant field to replicate and use the invention without needing to engage in "undue experimentation." If a patent claim is not "enabled"--i.e., if a person having ordinary skill in the art (PHOSITA) who studied the patent cannot make or use the invention without undue experimentation--the claim is invalid and can no longer be asserted. This penalty deters patent applicants from claiming more than they invented and allows ...
The Inherent Jurisdiction Of Wto Tribunals: The Select Application Of Public International Law Required By The Judicial Function, Andrew D. Mitchell, David Heaton
Michigan Journal of International Law
This Article explores whether World Trade Organization (WTO) panels and the Appellate Body (WTO Tribunals) have the power to apply certain rules of public international law by reason of their judicial character, and because the application of these rules is necessary for the proper exercise of their judicial function. In other words, it seeks to answer the following questions: Do WTO Tribunals have inherent jurisdiction? And, if so, what are some of the rules applicable under and limitations on this jurisdiction?
Does Monopoly Broth Make Bad Soup?, 2010 University of Michigan Law School
Does Monopoly Broth Make Bad Soup?, Daniel A. Crane
There is an oft-repeated maxim in U.S. antitrust law that a monopolist's conduct must be examined in its totality in order to determine its legality. Judges admonish that plaintiffs "should be given the full benefit of their proof without tightly compartmentalizating the various factual components and wiping the slate clean after scrutiny of each." As the U.S. Court of Appeals for the Seventh Circuit stated in much-quoted language, "It is the mix of various ingredients ... in a monopoly broth that produces the unsavory flavor."' In this article, I examine the use and misuse of monopoly broth theories ...
The Supreme Court's Increased Attention To The Law Of Lawyering: Mere Coincidence Or Something More? , 2010 American University Washington College of Law
The Supreme Court's Increased Attention To The Law Of Lawyering: Mere Coincidence Or Something More? , Renee Newman Knake
American University Law Review
The United States Supreme Court considered seventeen cases raising issues related to the role of attorneys and the practice of law during the 2009 Term. This body of cases represents a substantial departure from dockets in recent history, where typically the Court took up less than a handful of cases involving regulation of the legal profession. While some might consider the increased number of cases addressing the law of lawyering a mere coincidence, this article contends that something more is occurring. The Court’s decision to devote so much of its limited time to these matters is noteworthy not only ...
Addict First, Criminal Second – Addiction Fueled Crimes Should Be Ineligible For The Three-Strikes Penalty, 2010 Barry University School of Law
Addict First, Criminal Second – Addiction Fueled Crimes Should Be Ineligible For The Three-Strikes Penalty, Scott Lindquist
Barry Law Review
The author of this article argues that drug addicts who finance their addiction through crime should be ineligible to receive a prison sentence under a recidivist statute like the three-strikes penalty. Part I introduces the problem, addiction and crime among current prisoners reported by the Department of Justice. Part II discusses Gary Ewing, an addict, a criminal, and a third strike offender. The story of Gary Ewing represents the injustices levied upon an addict/criminal by enhanced sentenced statutes like the three-strikes penalty. Part III is a discussion of the history of repeat offender statutes, primarily focusing on the inception ...