Law Commons^™

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.

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

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 …

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

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 …

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 …

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann

ExpressO

This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.

Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven

ExpressO

The right to a jury determination of a capital defendant's fate has expanded recently. The era of judges making factual determinations then determining whether to apply a death sentence or judges having the power to overrule a jury's life sentence to impose death is over. The expanded right to access a jury and have it hold determinative power over a defendant's life has not, however, been accompanied by commensurate attention to the instructions that guide those jurors through the applicable law toward their verdict. Nor have adequate procedures been designed to produce a truly representative jury panel. In brief, the …

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. 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 alternative rationale for …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

The Lack Of Dissent In Wto Dispute Settlement: Is There A “Unanimity” Problem?, Meredith Kolsky Lewis

ExpressO

This article is the first piece of scholarship to analyze in detail the fact that there has been almost no dissent in World Trade Organization (WTO) dispute settlement reports. The article first examines the empirical data with respect to dissenting and concurring opinions at both the panel and Appellate Body levels. Fewer than five percent of panel reports and two percent of Appellate Body reports contain separate opinions of any kind. It second shows that the WTO is in fact actively discouraging dissents, and discusses why this might be the case. The article argues that dissents are valuable in general, …

Reverse Bifurcation, Dru Stevenson

ExpressO

Reverse bifurcation is a trial procedure in which the jury determines damages first, before determining liability. The liability phase of the trial rarely occurs, because the parties usually settle once they know the value of the case. This procedure is already being used in thousands of cases – nearly all the asbestos and Fen-phen cases – but this is the first academic article devoted to the subject. This article explains the history of the procedure and analyzes why it encourages settlements, simplifies jury instructions, and produces better outcomes for the parties.

Understanding Jurisprudential Approaches To Islam, Marc L. Roark

ExpressO

The United States recent deal with a United Arab Emirites Company to operate seven U.S. Ports highlights a growing tension in U.S. and Arabic commercial relations. One tension that has remained unnoticed is the role that U.S Courts play in interpreting Islamic texts when the commercial or legal outcome depends on an understanding of the religious culture. This article describes seven cases that demonstrate various approaches to this problem. This article utilizes an approach by James Boyd White, and suggests that translation or its kin transliteration can help judges in deciding Islamic legal principles.

Toward A Federal Common Law Of Bankruptcy: Judicial Lawmaking In A Statutory Regime, Adam J. Levitin

ExpressO

Bankruptcy is a statutory system, yet it is replete with practices for which there is no direct authorization in the Bankruptcy Code. This article argues that the authorization for judicial creation of bankruptcy law beyond the provisions of the Code has been misidentified as the equity powers of bankruptcy courts. This misidentification has led courts to place inappropriate statutory and historical limitations on non-Code practices because of discomfort with unguided equitable discretion.

Both the statutory and historic limitations are problematic. The statutory authorization for the bankruptcy courts’ equitable powers appears to have been repealed by what one judge has called …

Moral Ambition: The Sermons Of Harry A. Blackmun, Dena S. Davis

Law Faculty Articles and Essays

Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. The public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this "Service of Death and Resurrection" was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on "The Churchmanship of Harry Blackmun." Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice's many contributions, Holmes noted a sermon that Blackmun had once preached on …

Introduction: The Jurisprudence Of Justice Stevens Symposium, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Fordham Law School opened its doors on September 28, 1905, a school with ten students and six faculty members. That day marked a great beginning, and on September 28, 2005, we began a year-long celebration of Fordham Law's history and the law school community's remarkable achievements over 100 years. The heart of any great academic institution is, of course, academics, and, as part of the centennial celebration, we are hosting an extraordinary series of conferences. This issue of the Fordham Law Review presents the papers produced by the first of the year's conferences, the Symposium on the jurisprudence of Justice …