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Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke 2017 Columbia Law School

Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke

Anthony O'Rourke

Some intellectual concepts that once played a central role in America’s constitutional history are, for both better and worse, no longer part of our political language.[1] These concepts may be so alien to us that they would remain invisible without carefully reexamining the past in order to challenge the received narratives of America’s constitutional development.[2] Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas ...


Who's Afraid Of Judicial Activism? Reconceptualizing A Traditional Paradigm In The Context Of Specialized Domestic Violence Court Programs, Jennifer L. Thompson 2017 University of Maine School of Law

Who's Afraid Of Judicial Activism? Reconceptualizing A Traditional Paradigm In The Context Of Specialized Domestic Violence Court Programs, Jennifer L. Thompson

Maine Law Review

The Specialized Domestic Violence Pilot Project (Pilot Project), implemented in York and Portland in July and August 2002, is the result of the collaborative efforts of the District Court system, law enforcement, prosecutors, members of the defense bar, and various community agencies offering services to victims and perpetrators. District court judges are largely responsible for overseeing the changes in court procedures and implementing the new protocols in domestic violence cases. The Pilot Project, and the changes it is making to the role that courts play in domestic violence cases, represents a significant departure from the procedures followed by traditional court ...


The False Idolarty Of Rules-Based Law, John C. Sheldon 2017 University of Maine School of Law

The False Idolarty Of Rules-Based Law, John C. Sheldon

Maine Law Review

When the Supreme Court outlawed segregation in public schools in 1954, it acknowledged this social truth: assigning separate public facilities to separate classes of people fosters inequality among those classes. Although Brown v. Board of Education of Topeka addressed only educational facilities, the Court quickly broadened the scope of its decision, applying it to racial discrimination in or at public beaches, buses, golf courses, parks, municipal airport restaurants and state courtrooms. And although Brown addressed only racial discrimination, it quickly became the basis for condemning many forms of discrimination, including race, religion, wealth, gender, age, and disability. What gave Brown ...


The Promotion Of Personhood Is A Principal Good Of Law, Scott T. FitzGibbon 2017 Boston College Law School

The Promotion Of Personhood Is A Principal Good Of Law, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

A great good promoted by a well constructed legal system is the protection and promotion of character. Many other purposes prove to be justifiable, if at all, based on their instrumentality to this good.

When guided by this thesis, jurisprudence brings the discussion of law – what law is and what law ought to be – into constant conversation with anthropology: the perennial inquiry which our species conducts into the nature of the person.


Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner 2017 University of Maine School of Law

Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner

Maine Law Review

Sentencing is different from almost all functions of the government and surely different from the other functions of the judiciary. It is the moment when state power meets an individual directly. It necessarily involves issues that are distinct from those in other areas of the law. It requires a court to focus on the defendant, to craft a punishment proportionate to the offense and to the offender. It should come as no surprise that in countries across the world, common law and civil code, totalitarian and free, judges have been given great discretion in sentencing. To be sure, that power ...


Reflections On The Challenging Proliferation Of Mental Health Issues In The District Court And The Need For Judicial Education, Jessie B. Gunther 2017 University of Maine School of Law

Reflections On The Challenging Proliferation Of Mental Health Issues In The District Court And The Need For Judicial Education, Jessie B. Gunther

Maine Law Review

Maine's courts constantly deal with litigants with mental health issues. Historically, our decisions have relied on expert testimony addressing specific issues of responsibility, risk, and treatment. In recent years, by my observation, court involvement in the treatment process has increased, but the availability of expert evidence has decreased. Thus, we as judges have become the ultimate decision-makers regarding litigants' mental health treatment in both criminal and civil contexts, without supporting expert testimony. In the face of this development, three interconnected issues arise. The first issue is whether judges should even attempt to fill the void caused by lack of ...


Abuse Of Discretion: Maine's Application Of A Malleable Appellate Standard, Andrew M. Mead 2017 University of Maine School of Law

Abuse Of Discretion: Maine's Application Of A Malleable Appellate Standard, Andrew M. Mead

Maine Law Review

It is not unusual for an appellate court to simply announce: “In the circumstances of this case, the trial justice did not abuse his discretion ....” No further clarification or elaboration is offered by the learned justices of the court. The parties are left with a final judgment, but little understanding of the appellate court's review process. Although the objective of finality is satisfied, the objective of clarity is ignored. When litigants and counsel are faced with similar factual or legal circumstances in the future, they remain without guidance or insight into the factors that the appellate court deemed to ...


Judges, Racism, And The Problem Of Actual Innocence, Stephen J. Fortunato Jr. 2017 University of Maine School of Law

Judges, Racism, And The Problem Of Actual Innocence, Stephen J. Fortunato Jr.

Maine Law Review

The facts and data are in and the conclusion they compel is bleak: the American criminal justice system and its showpiece, the criminal trial, harbor at their core a systemic racism. For decades, criminologists, law professors, sociologists, government statisticians, and others have been collecting and collating data on crime, punishment, and incarceration in the United States. These intrepid scholars have looked at crime, criminals, and the justice system from all angles—the race of defendants and victims; the relationship of poverty to criminality; severity of crime; severity of punishment; incarceration rates for different racial groups; sentencing and sentence disparities; and ...


Witness For The Client: A Judge's Role In Increasing Awareness In The Defendant, Joyce Wheeler 2017 University of Maine School of Law

Witness For The Client: A Judge's Role In Increasing Awareness In The Defendant, Joyce Wheeler

Maine Law Review

My participation in a new drug treatment court over the last few years signifies a transformation of this judge's application of herself in the courtroom. I have moved from the traditional role of judge to a more fluid role in which I begin from the stance as witness for the client and, when necessary, move to the more traditional decision-making responsibility of a judge. Awareness of the change occurred over time, but became most apparent in the context of an adult drug treatment court that integrates drug and alcohol treatment into the criminal justice system. A number of factors ...


When The Court Speaks: Effective Communication As A Part Of Judging, Daniel E. Wathen 2017 University of Maine School of Law

When The Court Speaks: Effective Communication As A Part Of Judging, Daniel E. Wathen

Maine Law Review

One of my early judicial role models, Justice James L. Reid of the Maine Superior Court, was sentencing a defendant for a murder committed within the confines of the Maine State Prison. The defendant was already serving a life sentence for another murder at the time the offense was committed. Because Maine has no parole or capital punishment, the sentencing options were limited and ultimately meaningless. As Jim imposed a life sentence consecutive to the existing life sentence, the defendant rose in his manacles and uttered an early Anglo-Saxon version of “screw you.” Jim, rising from the bench and moving ...


Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr. 2017 University of Maine School of Law

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court ...


Some Reflections On Dissenting, Kermit V. Lipez 2017 University of Maine School of Law

Some Reflections On Dissenting, Kermit V. Lipez

Maine Law Review

In the collegial world of appellate judging, where the dominant impulse is consensus, dissents depart from the norm. If their language is sharp, the dissents may offend colleagues and worry court watchers who expect consensus. These self-assigned opinions also add to the pressures of the work. Given these implications, the choice to dissent should never be a casual one. You must weigh the institutional and personal costs and benefits, understand the purpose of the dissent and the audiences for it, and always be attentive to style and tone. In a haphazard sort of way, I consider these issues when I ...


Res Judicata As Requisite For Justice, Kevin M. Clermont 2017 Cornell Law School

Res Judicata As Requisite For Justice, Kevin M. Clermont

Kevin M. Clermont

From historical, jurisprudential, and comparative perspectives, this Article tries to synthesize res judicata while integrating it with the rest of law. From near their beginnings, all systems of justice have delivered a core of res judicata comprising the substance of bar and defense preclusion. This core is universal not because it represents a universal value, but rather because it responds to a universal institutional need. Any justice system must have adjudicators; to be effective, their judgments must mean something with bindingness; and the minimal bindingness is that, except in specified circumstances, the disgruntled cannot undo a judgment in an effort ...


Court Review: Volume 41, Issue 3-4 - Judicial Independence: The Freedom To Be Fair, Steve Leben, Michael R. McAdam, Leo Bowman, Kevin S. Burke, Michael Cicconetti, Malcom Feeley, Jack Ford, Gayle Nachtigal, Tam Nomoto Schumann, William C. Vickrey 2017 Johnson County (Kan.) District Court

Court Review: Volume 41, Issue 3-4 - Judicial Independence: The Freedom To Be Fair, Steve Leben, Michael R. Mcadam, Leo Bowman, Kevin S. Burke, Michael Cicconetti, Malcom Feeley, Jack Ford, Gayle Nachtigal, Tam Nomoto Schumann, William C. Vickrey

Malcolm Feeley

The final panel discussion at the National Forum on Judicial Independence was moderated by Jack Ford, host of the syndicated Public Broadcasting System program, Inside the Law. The discussion explores topics of judicial independence in a manner designed for use with the public at large and formed the basis for the onehour PBS program, “Judicial Independence: The Freedom to Be Fair.” Panelists were Leo Bowman, chief judge of the District Court in Pontiac, Michigan, Kevin Burke, district judge and former chief judge of the Hennepin County (Minn.) District Court, Michael Cicconetti, judge of the Painesville (Ohio) Municipal Court, Malcolm Feeley ...


Court Review: Volume 41, Issue 3-4 - Friends Of The Court? The Bar, The Media, And The Public, Steve Leben, John Russonello, Malcom Feeley 2017 Johnson County, Texas

Court Review: Volume 41, Issue 3-4 - Friends Of The Court? The Bar, The Media, And The Public, Steve Leben, John Russonello, Malcom Feeley

Malcolm Feeley

The fourth panel discussion at the National Forum on Judicial Independence explores the way the public thinks about judicial independence and ways in which the media and members of the bar may affect judicial independence. The discussion was led by then-AJA secretary Steve Leben, a state general-jurisdiction trial judge from Kansas. Panelists were John Russonello, a pollster and consultant to nonprofit organizations, political campaigns, and other clients, and Malcolm Feeley, professor at the Boalt Hall School of Law at the University of California-Berkeley. The National Forum on Judicial Independence was supported by a generous grant from the Joyce Foundation of ...


Why The Taint To Religion?: The Interplay Of Chance And Reason, Richard Stith 2017 Valparaiso University

Why The Taint To Religion?: The Interplay Of Chance And Reason, Richard Stith

Richard Stith

No abstract provided.


Judges And Judicial Process In The Jurisprudence Of St. Thomas Aquinas, Charles P. Nemeth, J.D., Ph.D., LL.M. 2017 St. John's University School of Law

Judges And Judicial Process In The Jurisprudence Of St. Thomas Aquinas, Charles P. Nemeth, J.D., Ph.D., Ll.M.

The Catholic Lawyer

No abstract provided.


Privatizing Law: Is Rule Of Law An Equilibrium Without Private Ordering?, Gillian K. Hadfield, Barry R. Weingast 2017 University of Southern California Law

Privatizing Law: Is Rule Of Law An Equilibrium Without Private Ordering?, Gillian K. Hadfield, Barry R. Weingast

University of Southern California Legal Studies Working Paper Series

Almost all theorizing about law, including the rule of law, begins with government. Analysts from a wide variety of perspectives make this presumption. We contest this presumption. In this paper, we ask whether rule of law is an equilibrium in the absence of private ordering. To address this question, we rely on the what-is-law model of Hadfield and Weingast (2012). Most legal theory has asserted that legal attributes are characteristic of legal orders, such as generality, clarity and neutrality. In contrast, we show that they can be derived from a minimal normative premise about what constitutes law in a setting ...


China's Judiciary: Current Issues, Jianli Song 2017 University of Maine School of Law

China's Judiciary: Current Issues, Jianli Song

Maine Law Review

Since 1978, China has been engaged in a major reform program of economic modernization and growing openness to the outside world. The movement towards a market economy has resulted in impressive economic growth. It has also led to social change, including increasing pressure from segments of the population for greater participation in decision making and respect for human rights. The Chinese government is taking steps towards the rule of law. The legal reforms being carried out go beyond the economic sphere, and also gradually will affect the relationship between individuals and the state. Dialogue with the international community has broadened ...


Consent Decrees, The Enlightenment, And The "Modern" Social Contract: A Case Study From Bates, Olmstead, And Maine's Separation Of Powers Doctrine, Dana E. Prescott 2017 University of Maine School of Law

Consent Decrees, The Enlightenment, And The "Modern" Social Contract: A Case Study From Bates, Olmstead, And Maine's Separation Of Powers Doctrine, Dana E. Prescott

Maine Law Review

On December 17, 2004, the Maine Supreme Judicial Court, sitting as the Law Court, issued its decision in Bates v. Department of Behavioral & Developmental Services, which affirmed in part, and vacated in part, the decision of Superior Court Chief Justice Nancy Mills, and remanded for further proceedings in the so-called Augusta Mental Health Institute (AMHI) Consent Decree case. In the underlying litigation, patients at the mental health hospital filed motions for sanctions and findings of contempt alleging the State of Maine failed to comply with the 1990 Consent Decree and incorporated settlement agreement. After a seventeen-day trial on whether the ...


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