Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Courts (72)
- Judges (31)
- Constitutional Law (28)
- Law and Society (20)
- Jurisprudence (19)
-
- Civil Rights and Discrimination (18)
- Criminal Law (18)
- Criminal Procedure (17)
- International Law (16)
- Comparative and Foreign Law (15)
- Legal History (15)
- Litigation (15)
- Jurisdiction (14)
- Law and Politics (14)
- Legislation (14)
- Social and Behavioral Sciences (14)
- Human Rights Law (13)
- Dispute Resolution and Arbitration (12)
- Legal Profession (12)
- Public Law and Legal Theory (11)
- Administrative Law (10)
- Law and Economics (10)
- State and Local Government Law (9)
- Commercial Law (8)
- Economics (7)
- Business Organizations Law (6)
- Civil Law (6)
- Entertainment, Arts, and Sports Law (6)
- Evidence (6)
- Institution
-
- BLR (49)
- Duke Law (6)
- SelectedWorks (6)
- University of Missouri School of Law (5)
- Cornell University Law School (4)
-
- Selected Works (4)
- University of Pennsylvania Carey Law School (3)
- American University Washington College of Law (2)
- Chicago-Kent College of Law (2)
- Nova Southeastern University (2)
- Saint Louis University School of Law (2)
- Schulich School of Law, Dalhousie University (2)
- University of Colorado Law School (2)
- University of Pittsburgh School of Law (2)
- Barry University School of Law (1)
- Boston University School of Law (1)
- Maurer School of Law: Indiana University (1)
- Northwestern Pritzker School of Law (1)
- St. Thomas University College of Law (1)
- The University of San Francisco (1)
- University of Georgia School of Law (1)
- University of Louisville (1)
- University of Michigan Law School (1)
- University of North Carolina School of Law (1)
- University of Oklahoma College of Law (1)
- University of San Diego (1)
- Publication
-
- ExpressO (48)
- Faculty Scholarship (9)
- All Faculty Scholarship (6)
- Faculty Publications (4)
- Margo Schlanger (3)
-
- Articles (2)
- Articles in Law Reviews & Other Academic Journals (2)
- Cornell International Law Journal (2)
- Dalhousie Law Journal (2)
- Journal of Dispute Resolution (2)
- Nancy S. Marder (2)
- Publications (2)
- Antonin I. Pribetic (1)
- Cornell Law Faculty Publications (1)
- Cornell Law School J.D. Student Research Papers (1)
- David S. Law (1)
- Faculty Articles (1)
- Faculty Working Papers (1)
- George C Thomas III (1)
- ILSA Journal of International & Comparative Law (1)
- Indiana Law Journal (1)
- Law and Contemporary Problems (1)
- Michael D. Mann (1)
- Oklahoma Law Review (1)
- Other Publications (1)
- Rutgers Law School (Newark) Faculty Papers (1)
- Saint Louis University Public Law Review (1)
- San Diego International Law Journal (1)
- Scholarly Works (1)
- Todd E. Pettys (1)
- Publication Type
Articles 1 - 30 of 103
Full-Text Articles in Law
Picking Up The Pieces Of The Gordian Knot: Towards A Sensible Merger Methodology, Bruce A. Antkowiak
Picking Up The Pieces Of The Gordian Knot: Towards A Sensible Merger Methodology, Bruce A. Antkowiak
ExpressO
This question of merger is one of the most perplexing that courts face in the criminal sentencing process. This article not only explores that question but proposes specific new methods a court may use to resolve this question in a way consonant with the Constitution and the intent of the legislature.
The article takes as its starting point a brilliant analysis of the Double Jeopardy doctrine set out by Professor Ann Poulin of Villanova Law School in an article entitled Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595 (2006). Professor Poulin’s work demonstrates …
Neutral Citation, Court Web Sites, And Access To Case Law, Peter W. Martin
Neutral Citation, Court Web Sites, And Access To Case Law, Peter W. Martin
Cornell Law Faculty Publications
In 1994 the Wisconsin Bar and Judicial Council together urged the Wisconsin Supreme Court to take two dramatic steps with the combined aim of improving access to state case law: 1) adopt a new system of neutral citation and 2) establish a digital archive of decisions directly available to all publishers and the public. The recommendations set off a storm, and the Wisconsin court deferred decision on the package. In the years since those events, the background conditions have shifted dramatically. Neutral citation has been endorsed by the AALL and ABA and formally adopted in over a dozen states, including …
Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook
Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook
Scholarly Works
This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court decisions--United …
A Constitutional Amendment To Reform Kentucky’S Courts, Kurt Metzmeier
A Constitutional Amendment To Reform Kentucky’S Courts, Kurt Metzmeier
Faculty Scholarship
Responding to a confused patchwork of trial courts with overlapping jurisdiction, uneven justice around the state, and a growing backlog of appellate cases, voters in Kentucky went to the polls on November 4, 1975, to approve a sweeping constitutional amendment that radically revised Kentucky’s court system. Although reformers had decried Kentucky’s confusing court system since the 1940s, the real roots of the revision of the judicial article can be found in the failed movement in the late 1960s to replace Kentucky’s 1891 constitution. Unbowed by the defeat, judicial reformers immediately set out to pass a separate amendment reforming the courts, …
Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum
Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum
George C Thomas III
Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury …
Judicial Selection, Appointments Gridlock, And The Nuclear Option, David S. Law, Lawrence B. Solum
Judicial Selection, Appointments Gridlock, And The Nuclear Option, David S. Law, Lawrence B. Solum
David S. Law
In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status …
Edward R. Becker: A Man In Full, Stephen B. Burbank
Edward R. Becker: A Man In Full, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin
The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin
ExpressO
The law of patent claim interpretation articulated by the United States Court of Appeals for the Federal Circuit is commonly supposed to be markedly indeterminate, and to be responsible for a lack of certainty and predictability in patent infringement litigation. But there has been no attempt to measure objectively the indeterminacy associated with patent claim interpretation, or, for that matter, of any other field of law. This Article shows that under appropriate conditions the indeterminacy of a legal regime may be measured empirically by the frequency of judicial dissents. Application of this method to the Federal Circuit's jurisprudence demonstrates that …
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
The Conditional Effects Of Ideology And Institutional Structure On Judicial Voting In State Supreme Courts, Jeff L. Yates, Paul Brace, Brent Boyea
The Conditional Effects Of Ideology And Institutional Structure On Judicial Voting In State Supreme Courts, Jeff L. Yates, Paul Brace, Brent Boyea
ExpressO
Two enormously influential perspectives on courts offer fundamentally different predictions about court outcomes and the effects of judge ideology on those outcomes. Well-known to political scientists studying courts, the ideological voting (IV) literature argues that judge ideology is a strong predictor of court outcomes and that those outcomes should be proximate to the policy preferences of courts. Less known to political scientists but highly influential, the law and economics perspective (LE) focuses on settlement behavior of litigants who try to minimize costs and thus estimate likely outcomes in court, and settle simpler cases pre-trial. In this case selection process litigants …
The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In Publicly-Held Companies’ Contracts, Theodore Eisenberg, Geoffrey Miller
The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In Publicly-Held Companies’ Contracts, Theodore Eisenberg, Geoffrey Miller
ExpressO
We study a data set of 2,858 contracts contained as exhibits in Form 8-K filings by reporting corporations over a six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. Because 8-K filings are required only for material events, these contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. These contracts, therefore, provide evidence of efficient ex ante solutions to contracting problems. The vast majority of contracts did not require arbitration. Only about 11 percent of the contracts included binding arbitration clauses. The rate …
Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns
Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns
Dalhousie Law Journal
The traditional doctrine of testamentary undue influence developed in nineteenth century England. Its utility, however, is limited since the doctrine requires the person alleging undue influence to provide direct proof of coercion according to a high standard. In England the doctrine has remained static and there have been calls for reform. In Canada, some courts have ceased to apply the traditional doctrine so that today there is no one consistent and coherent doctrine of testamentary undue influence. This article explores two possible reforms of the doctrine both of which are evident in recent Canadian case law: a presumption of testamentary …
The War Powers Outside The Courts, William Michael Treanor
The War Powers Outside The Courts, William Michael Treanor
Indiana Law Journal
Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.
Distinguishing Certification From Abstention In Diversity Cases: Postponement Versus Abdication Of The Duty To Exercise Jurisdiction, Deborah J. Challener
Distinguishing Certification From Abstention In Diversity Cases: Postponement Versus Abdication Of The Duty To Exercise Jurisdiction, Deborah J. Challener
ExpressO
When a federal court grants an abstention-based dismissal in a diversity case, the court abdicates its strict duty to exercise its jurisdiction where that jurisdiction has been properly invoked. Thus, a federal court may not dismiss a case on abstention grounds unless it concludes that "exceptional circumstances" require the dismissal. When a federal court grants an abstention-based stay in a diversity case, however, the court does not violate its jurisdictional duty. According to the Supreme Court, an abstention-based stay is merely a postponement of the exercise of jurisdiction. Although the Court has characterized an abstention-based stay as a delay rather …
Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults
Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults
ExpressO
The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.
Radicals In Robes: A Review, Dru Stevenson
Radicals In Robes: A Review, Dru Stevenson
ExpressO
This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an …
Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice
ExpressO
Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …
When Should Judges Appoint Experts?: A Law And Economics Perspective, Jonathan T. Tomlin, David Cooper
When Should Judges Appoint Experts?: A Law And Economics Perspective, Jonathan T. Tomlin, David Cooper
ExpressO
The Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals placed federal judges in the role of “gatekeepers” empowered to evaluate the reliability of often complex expert testimony. Many judges, commentators, and legal scholars have argued that court-appointed experts can assist judges in appropriately carrying out their gatekeeping role. However, previous literature has not evaluated the role of court-appointed experts in a rigorous framework that considers the complex interaction of the incentives of expert witnesses, the impact of expert witnesses on the decision-making of the fact finder, and the knowledge of the judge. In this article, we provide such a …
A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch
A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch
ExpressO
This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …
Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic
Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic
ExpressO
Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …
Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila
Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila
ExpressO
This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.
The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …
Parental Consent And Notification Laws In The Abortion Context: Rejecting The "Maturity" Standard In Judicial Bypass Proceedings, Anna Bonny
ExpressO
The choice to become a parent, to give a baby up for adoption, or to terminate a pregnancy presents a life-altering decision for a minor. The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents. Though the Supreme Court has held that parental consent and notification laws do not infringe on a minor's constitutional rights if judicial bypass options are available, the reality of these judicial proceedings demonstrates a biased and unworkable legal avenue. Even …
Who Decides?: A Critical Look At Procedural Discretion, Robert G. Bone
Who Decides?: A Critical Look At Procedural Discretion, Robert G. Bone
ExpressO
Federal civil procedure today relies extensively on trial judge discretion to manage litigation, promote settlements, and otherwise tailor process to individual cases. Even those rules with decisional standards leave trial judges considerable interpretive freedom to make case-specific determinations. This Article criticizes these choices and recommends stricter rules. Many judges and procedure scholars applaud the discretionary approach, and the Advisory Committee seems content to draft vague rules that implement it. The assumption seems to be that trial judges have the expertise and experience to do a good job of tailoring procedures to the needs of particular cases. The assumption is wrong, …
Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali
Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali
ExpressO
As the wave of outsourcing to India swells, there is growing concern about the inadequacies of the India legal system in protecting data being transferred to it from other nations for the purpose of processing. India has a smattering of laws that scantily address the issue of data privacy. Under pressure from the business processing industry in India, as well as from the European Union and other nations, it is but a matter of time before India adopts a slate of laws that address the issue of data protection. Once these laws are enacted, the main issue that remains is …
Reassessing Damages In Securities Fraud Class Actions, Elizabeth C. Burch
Reassessing Damages In Securities Fraud Class Actions, Elizabeth C. Burch
ExpressO
No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.
In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …
Commercial Law In The Cracks Of Judicial Federalism, Donald J. Smythe
Commercial Law In The Cracks Of Judicial Federalism, Donald J. Smythe
ExpressO
Almost seventy years after the Supreme Court sought to rationalize the American system of judicial federalism in Erie, sales law remains trapped in a pattern more reminiscent of the Swift v. Tyson era. The extraordinarily wide separation of powers in the NCCUSL-ALI uniform law-making process has entrenched Article 2 of the UCC in the status quo. Concurrently, an imbalance between the federal and state courts in the American system of judicial federalism has conferred an unusually wide range of discretion over state commercial law on the federal courts. Ironically, therefore, state sales statutes are being reinterpreted and revised by the …
Sherman's March (In)To The Sea, Andrew S. Oldham
Sherman's March (In)To The Sea, Andrew S. Oldham
ExpressO
This Article argues that the Sherman Act is unconstitutional. At the very least, scholars and jurists must not take for granted Congress's ability to statutorily deputize the federal courts with common-lawmaking powers. The federal antitrust statute—which has been described as the Magna Carta of free enterprise—raises serious constitutional questions that have heretofore gone unexplored and unanswered. Specifically, it is difficult (if not impossible) to reconcile the Sherman Act with the separation of powers, the nondelegation doctrine, and the Supremacy Clause.
Multistable Figures: Sexual Orientation Visibility And Its Effects On The Experiences Of Sexual Minorities In The Courts, Todd Brower
ExpressO
A multistable figure is a cognitive illusion in which a single drawing contains multiple, competing images. On first viewing a person will see one image, but not the other – it usually requires additional information to trigger the viewer’s awareness of the second image. However, once you know about the disparate figures in the illustration, you cannot erase that knowledge from your mind and see a sole image as you did originally. This inability to ignore information and its effect on subsequent experience has parallels in lesbians’ and gay men’s treatment in the courts.
Courts today are deeply involved in …
American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson
American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson
ExpressO
Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …
Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark
Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark
ExpressO
This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.