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Articles 1 - 30 of 33
Full-Text Articles in Law
Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco
Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco
Palma Paciocco
The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …
Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty, Palma Paciocco
Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty, Palma Paciocco
Palma Paciocco
Justin Ronald Beatty was driving on the Trans-Canada Highway on July 23, 2003 when, for no apparent reason, his truck suddenly crossed the solid centre line and collided with an oncoming car, killing three people. Beatty was charged with dangerous operation of a motor vehicle causing death. He was acquitted at trial on the grounds that his momentary lapse of attention was not enough to establish fault. The Crown appealed, and the Court of Appeal ordered a new trial after concluding that the trial judge had misapplied the fault standard. Beatty appealed to the Supreme Court of Canada, which undertook …
Is The Internet Rotting Oklahoma Law?, Lee Peoples
The Confident Court, Jennifer Mason Mcaward
The Confident Court, Jennifer Mason Mcaward
Jennifer Mason McAward
Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court. This piece discusses …
Advocacy Through Briefs In The U.S. Court Of Appeals., Susan B. Haire, Laura P. Moyer
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 …
Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley
Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley
Laura Moyer
The determination that sexual harassment constituted “discrimination based on sex” under Title VII was first made by the lower federal courts, not Congress. Drawing from the literature on policy diffusion, this article examines the adoption of hostile work environment standards across the U.S. Courts of Appeals in the absence of controlling Supreme Court precedent. The results bolster recent findings about the influence of female judges on their male colleagues and suggest that in addition to siding with female plaintiffs, female judges also helped to shape legal rules that promoted gender equality in the workplace.
Diversity, Deliberations, And Judicial Opinion Writing., Susan B. Haire, Laura P. Moyer, Shawn Treier
Diversity, Deliberations, And Judicial Opinion Writing., Susan B. Haire, Laura P. Moyer, Shawn Treier
Laura Moyer
Underlying scholarly interest in diversity is the premise that a representative body contributes to robust decision-making processes. Using an innovative measure of opinion content, we examine this premise by analyzing deliberative outputs in the US courts of appeals (1997-2002). While the presence of a single female or minority did not affect the attention to issues in the majority opinion, panels composed of a majority of women or minorities produced opinions with significantly more points of law compared to panels with three Caucasian males.
Gender, Race, And Intersectionality On The Federal Appellate Bench., Todd Collins, Laura Moyer
Gender, Race, And Intersectionality On The Federal Appellate Bench., Todd Collins, Laura Moyer
Laura Moyer
While theoretical justifications predict that a judge’s gender and race may influence judicial decisions, empirical support for these arguments has been mixed. However, recent increases in judicial diversity necessitate a reexamination of these earlier studies. Rather than examining individual judges on a single characteristic, such as gender or race alone, this research note argues that the intersection of individual characteristics may provide an alternative approach for evaluating the effects of diversity on the federal appellate bench. The results of cohort models examining the joint effects of race and gender suggest that minority female judges are more likely to support criminal …
Trailblazers And Those That Followed : Personal Experiences, Gender, And Judicial Empathy., Laura P. Moyer, Susan B. Haire
Trailblazers And Those That Followed : Personal Experiences, Gender, And Judicial Empathy., Laura P. Moyer, Susan B. Haire
Laura Moyer
This paper investigates one causal mechanism that may explain why female judges on the federal appellate courts are more likely than men to side with plaintiffs in sex discrimination cases. To test whether personal experiences with inequality are related to empathetic responses to the claims of female plaintiffs, we focus on the first wave of female judges, who attended law school during a time of severe gender inequality. We find that female judges are more likely than their male colleagues to support plaintiffs in sex discrimination cases, but that this difference is seen only in judges who graduated law school …
Rethinking Critical Mass In The Federal Appellate Courts., Laura Moyer
Rethinking Critical Mass In The Federal Appellate Courts., Laura Moyer
Laura Moyer
This article draws from critical mass studies of gender in other political institutions to inform an application to the US Courts of Appeals. The results demonstrate the utility of considering court-level aspects of diversity. As mixed-sex panels become more common within a circuit, both male and female judges increasingly support plaintiffs in civil rights claims, though the magnitude of the effect is larger for women. The presence of a female chief judge is also positively associated with pro-plaintiff decisions by men and women in sex discrimination cases.
The Role Of Case Complexity In Judicial Decision Making., Laura P. Moyer
The Role Of Case Complexity In Judicial Decision Making., Laura P. Moyer
Laura Moyer
The literature on ideology and decision making offers conflicting expectations about how judges’ ideology should affect their votes in cases that raise many legal issues. Using cases from the U.S. Courts of Appeals, I examine the strength of ideology as a predictor of sincere voting in single and multi-issue cases and test whether the same effect for ideology can be seen for liberal and conservative judges. For all judges, ideology yields a larger effect as the number of issues increases; however, conservative judges are much more likely than liberal judges to cast sincere votes at all levels of complexity.
Is This Appropriate?, Thomas L. Shaffer, Julia B. Meister
Is This Appropriate?, Thomas L. Shaffer, Julia B. Meister
Thomas L. Shaffer
No abstract provided.
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
Sean Farhang
In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …
Conflict Of Laws: Foreign Law As Datum, Herma Hill Kay
Conflict Of Laws: Foreign Law As Datum, Herma Hill Kay
Herma Hill Kay
Examines the contributions of California Supreme Court Chief Justice Roger Traynor to the field of conflict of laws. Review of the case of the 'Estate of Perkins'; Case of 'Bernkrant v. Fowler'; View that Traynor's approach to a conflicts problem cannot be equalled by other judges.
Suggestions For American Judges: Ten Books That Merit Reading, Robert C. Berring
Suggestions For American Judges: Ten Books That Merit Reading, Robert C. Berring
Robert Berring
No abstract provided.
Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions, Nancy S. Marder, Valerie P. Hans
Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions, Nancy S. Marder, Valerie P. Hans
Valerie P. Hans
This introduction to the special issue of Oñati Socio-legal Series describes the goals of the conference on Juries and Mixed Tribunals across the Globe, and identifies themes that emerged as jury scholars from all over the world examined different forms of lay participation in legal decision-making. The introduction focuses on common challenges that different systems of lay participation face, including the selection of impartial fact finders and the presentation of complex cases to lay citizens. The introduction and special issue articles also highlight new developments and innovative practices to address these challenges, including some tools, like decision trees, that remain …
Judicial Review Of Refugee Determinations: The Luck Of The Draw?, Sean Rehaag
Judicial Review Of Refugee Determinations: The Luck Of The Draw?, Sean Rehaag
Sean Rehaag
Judicial review is often the only way to correct errors made by the Immigration and Refugee Board in refugee determinations. Applicants must seek leave from the Federal Court, where a judge will decide if their case is suitable for judicial review. The stakes are high for refugee claimants confronting deportation to countries where they may face persecution, torture or death. The author reviews over 23 000 applications for judicial review from 2005 to 2010, and finds troubling inconsistency in leave grant rates at the Federal Court. Over 36 per cent of judges deviated by more than 50 per cent from …
Law, Politics, And Legacy Building At The Mclachlin Court In 2014, Jamie Cameron
Law, Politics, And Legacy Building At The Mclachlin Court In 2014, Jamie Cameron
Jamie Cameron
This Article was written for Osgoode Hall Law School’s annual Constitutional Cases conference, and provides the keynote overview of the McLachlin Court’s 2014 constitutional jurisprudence. The Court’s 2014 constitutional decisions (Appointment and Senate References; Tsilqot’in Nation; Trial Lawyers) and restrictions on Mr. Big operations (Hart), in combination with a tsunami of Charter decisions early in 2015 (the 2015 Labour Trilogy; Carter v. Canada; R. v. Nur; and others), made this a legacy-building year. More than an overview, this Article probes the nature of the McLachlin Court’s legacy this year and the relationship between legal and political dynamics, to ask: in …
Congratulations To Judge Procter R. Hug, Jr., Barry G. Silverman
Congratulations To Judge Procter R. Hug, Jr., Barry G. Silverman
Barry G Silverman
No abstract provided.
Congratulations To Judge Procter R. Hug, Jr., Barry G. Silverman
Congratulations To Judge Procter R. Hug, Jr., Barry G. Silverman
Barry G Silverman
No abstract provided.
The Hughes Court Docket Books: The Early Terms, 1929-1933, Barry Cushman
The Hughes Court Docket Books: The Early Terms, 1929-1933, Barry Cushman
Barry Cushman
For many years, the docket books kept by a number of the Hughes Court Justices have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the docket books that the Curator’s Office holds for the early Hughes Court, comprising the 1929-1933 Terms. Only one of …
Targeted Killing: The Case Of Anwar Al-Aulaqi, John C. Dehn, Kevin Jon Heller
Targeted Killing: The Case Of Anwar Al-Aulaqi, John C. Dehn, Kevin Jon Heller
John C. Dehn
No abstract provided.
What Kind Of Judge Is Supreme Court Nominee Merrick Garland?, Caren Morrison
What Kind Of Judge Is Supreme Court Nominee Merrick Garland?, Caren Morrison
Caren Myers Morrison
No abstract provided.
What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin
What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin
D'Andre Devon Lampkin
The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.
A Man Of Honor: Antonin Scalia (1936-2016), Justice Of The Supreme Court Of The United States, Alan E. Garfield
A Man Of Honor: Antonin Scalia (1936-2016), Justice Of The Supreme Court Of The United States, Alan E. Garfield
Alan E Garfield
Civil Rights And Civil Liberties In A Crisis: A Few Pages Of History , Thomas E. Baker
Civil Rights And Civil Liberties In A Crisis: A Few Pages Of History , Thomas E. Baker
Thomas E. Baker
No abstract provided.
A Compendium Of Proposals To Reform The United States Courts Of Appeals, Thomas E. Baker
A Compendium Of Proposals To Reform The United States Courts Of Appeals, Thomas E. Baker
Thomas E. Baker
Judge Ginsburg has provided a judge's-eye view of the work of a United States Court of Appeals in her Dunwody Lecture.'From her perspective as a judge on the District of Columbia Circuit, she has done a fine job describing the process of deciding appellate cases and composing a reasoned decision. But simply describing" things as they are" in the decisional process will not suffice in this article for two reasons. First, Judge Ginsburg has already done that, as have other judges.
The Irrepressible Myth Of Klein, Howard M. Wasserman
The Irrepressible Myth Of Klein, Howard M. Wasserman
Howard M Wasserman
The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …
A Catalogue Of Judicial Federalism In The United States, Thomas E. Baker
A Catalogue Of Judicial Federalism In The United States, Thomas E. Baker
Thomas E. Baker
No abstract provided.
A Bibliography For The United States Courts Of Appeals, Thomas E. Baker
A Bibliography For The United States Courts Of Appeals, Thomas E. Baker
Thomas E. Baker
No abstract provided.