Law Commons^™

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Michigan Law Review

According to the prevailing wisdom in academic public law, constitutional theory is a field that seeks to articulate and evaluate abstract accounts of the nature of the United States Constitution. Theorists offer those accounts as guides to subsequent judicial construction of constitutional provisions. As typically conceived, therefore, constitutional theory tends to proceed analytically from the general to the particular; its animating idea is that correct decisions in constitutional cases presuppose theoretical commitments to the methodological principles that should guide constitutional interpretation and the substantive values such interpretation should advance. In its enthusiasm for abstraction, constitutional theory has, at times, generated …

The Medieval Blood Sanction And The Divine Beneficence Of Pain: 1100 - 1450, Trisha Olson

ExpressO

No abstract provided.

A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity

ExpressO

This Article proposes a conceptual foundation for the field of international tax law. The Article refers to this foundation as the institutional competence of nations in global economic development. A nation’s institutional competence is its discretion to make decisions in pursuit of our collective goal of global economic development, discretion that is subject to a number of standards and limitations.

The Article constructs the institutional competence of nations in global economic development from institutional economics, simple game theory, and the literature on social norms. The Article expresses the institutional competence of nations through standards and limitations that reduce the abuse …

The Effect Of Myth On Primitive And Ancient Justice , Stuart Madden

ExpressO

THE EFFECT OF MYTH ON PRIMITIVE AND ANCIENT JUSTICE M. Stuart Madden

Abstract In primitive and civilized cultures alike, myth has served as a foundational component of social structure and societal cultural self-image. For peoples with limitation on their skills of scientific inquiry and/or detached social observation, myth has served purposes ranging from explanation of the natural world to early visions of civil justice and a moral ethos. Such application of myth has necessarily and simultaneously provided adherents with the means of rationalizing the caprice and harshness of the natural world, as well as giving a means of accepting, even …

Court Review: Volume 42, Issue 2 - Complete Issue

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 2 - Recent Civil Decisions Of The United States Supreme Court: The 2004-2005 Term, Charles H. Whitebread

Court Review: Journal of the American Judges Association

As I noted in reviewing the past term’s criminal decisions, what turned out to be the final year for the Rehnquist Court produced no blockbuster rulings. Nonetheless, there were several civil decisions of note. The Court’s 5-4 ruling upholding the taking of private property for economic development purposes and two First Amendment cases involving public display of the Ten Commandments in a courthouse and in a school were among those receiving the most public attention.

Court Review: Volume 42, Issue 2 - Resource Page

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 2 - Table Of Contents

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 2 - Courtroom 302: How America’S Criminal Justice System Really Works, Angela M. Brouse

Court Review: Journal of the American Judges Association

1998 was to be a big year for Courtroom 302 and the Cook County Criminal Courthouse—the biggest and busiest felony courthouse in the nation. Cook County alone would send nearly 16,000 convicted criminals to prison. Courtroom 302 and Judge Daniel Locallo would hear the controversial Bridgeport trial, known as a “heater” case for attracting publicity. The case revolved around three young white men, with supposed mafia ties, charged with the brutal beating of a 13-year-old black boy—the alleged motive being that the black boy was not welcome in the predominately white neighborhood. Due to the violent and racial undertones in …

Court Review: Volume 42, Issue 2 - Cover

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 2 - Editor's Note

Court Review: Journal of the American Judges Association

Our lead article will be of interest to all judges who made child-custody decisions as part of their work. Psychologist Ira Turkat notes a seldom- discussed but critical point about child-custody evaluations conducted by psychologists—there is no scientific data demonstrating the validity of these reports. Given that fact, he discusses questions judges should ask and the framework within which these reports should be viewed. He also notes a recent Florida Court of Appeals case, Higginbotham v. Higginbotham (reprinted at page 9), in which the court noted that a court-ordered psychological evaluation had cost $20,000, an amount equal to the parties’ …

Court Review: Volume 42, Issue 2 - On The Limitations Of Child-Custody Evaluations, Ira Daniel Turkat

Court Review: Journal of the American Judges Association

Child-custody litigation is typically hostile, stressful, and expensive. For thousands of years, society has wrestled with the issue of properly assigning custody of children when parents fight over it. In King Solomon’s court, there were no licensed psychologists to extensively interview families, apply psychological tests, and offer recommendations. Today, it is commonplace in our society to have psychologists evaluate families litigating over custody.

In the United States, approximately 100,000 custody battles take place each year. However, psychological evaluations are not ordered in all contested custody cases. By and large, a custody investigation is ordered when it is unclear who should …

Court Review: Volume 42, Issue 2 - Eroding Fourth Amendment Protections At The Border: An Analysis Of United States V. Cortez-Rocha, Ryan Farley

Court Review: Journal of the American Judges Association

Recently, the Ninth Circuit Court of Appeals decided the government can destroy personal property during a search at the border without restraint or probable cause. The Ninth Circuit’s holding in United States v. Cortez-Rocha represents a dangerous precedent not only for border searches, but for the reasonableness standard embedded in the Fourth Amendment. However, this power should not eliminate all Fourth Amendment protections against unreasonable searches. Although the federal government may have the ability to conduct searches without probable cause at the border, that power does not allow federal agents to destroy personal property when agents can open a container …

Court Review: Volume 42, Issue 2 - President’S Column, Michael Cicconetti

Court Review: Journal of the American Judges Association

It seems as if our Annual Conference in Anchorage took place about a month ago, but it has been many months now since we returned home and my job as president of AJA began. Time seems to disappear and days become a blur when balancing the bench, AJA, and family. Your officers and Executive Committee have totally immersed themselves in revitalizing the AJA beginning with plans for a great educational and fun-filled annual conference in New Orleans in October. In January, the Executive Committee met for two days discussing our priorities and goals for this year and the future of …

Juridical Discourse And Evolutionary Dynamics , Atahualpa Fernandez

ExpressO

Abstract: This article propose an explanation about Law that crosses the scales of space, time and complexity to, by uniting the apparently irreconcilable facts of the social and the natural, integrate the perception of a normative network, of a social adaptive strategy, that certainly was created and exists in function of its contributions to survival and reproductive success during the long period of our evolutionary history, that is, to resolve recurrent evolutionary problems in an essentially social species such as ours that otherwise would not have managed to prosper biologically.

The Chief Prosecutor, Sai Prakash

University of San Diego Public Law and Legal Theory Research Paper Series

Since Watergate, legal scholars have participated in a larger debate about the President’s constitutional relationship to prosecutions. In particular, many legal scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Revisionist scholars cited early statutes and practices meant to demonstrate that early presidents lacked control over prosecution. Among other things, scholars asserted that early presidents could not control either the federal district attorneys or the popular prosecutors who brought qui tam suits to enforce federal law. In fact, many of the revisionist claims are wrong and others are beside the point. Despite …

The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins

University of San Diego Public Law and Legal Theory Research Paper Series

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …

It's Not The Thought That Counts, Deborah S. Hellman

ExpressO

The article considers a central question about discrimination – are an actor’s intentions relevant to whether an action wrongfully discriminates – and takes issue with a familiar answer to this question. If one thinks of “discrimination” in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, …

Saving Section 5: Lessons From Consent Decrees And Ex Parte Young, Pratik A. Shah

Washington and Lee Law Review

No abstract provided.

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

What Is Legal Doctrine, Emerson Tiller, Frank B. Cross

Public Law and Legal Theory Papers

Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others’ efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe …

Markets & Democracy: The Illegitimacy Of Corporate Law, Daniel J.H. Greenwood

ExpressO

Corporate law does not conform to ordinary democratic norms. Unlike human citizens, corporations may decide which law will govern their most fundamental acts of self-governance. The corporate law corporation choose in turn influences the corporate goals and decision-making processes that determine what the corporation looks for in corporate law in a reflexive system independent of ordinary political processes.

This system seems on its face to violate the most fundamental principle of popular sovereignty–all non-Delaware citizens of the United States are excluded from even formal participation in the process of determining American corporate law, and even Delaware citizens are reduced to …

Court Review: Volume 42, Issue 1 - Complete Issue

Court Review: Journal of the American Judges Association

No abstract provided.

American Review: Volume 42, Issue 1 - Dwi Courts: The Newest Problem-Solving Courts, Victor E. Flango

Court Review: Journal of the American Judges Association

Problem-solving court s — m o re accurately, specialized dockets—are established to deal with problems that may benefit from focused and sustained attention. These courts include a treatment component in an effort to reduce recidivism, which in turn reduces the number of future arrests, prosecutions, and court cases.

Specialized drug courts appeared in the late 1980s in response to the dramatic increase in drug offenses. Some drug courts, often referred to as “drug-treatment courts,” emphasize treatment as the way to reduce recidivism. Essential elements of drug courts include: (1) immediate intervention; (2) nonadversarial adjudication; (3) hands-on judicial involvement; (4) treatment …

Court Review: Volume 42, Issue 1 - Resource Page

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 1 - Editor's Note

Court Review: Journal of the American Judges Association

We begin this issue with remarks given by Roger Warren on the need to tie preservation of judicial independence with a healthy dose of judicial accountability. Warren is a former judge and the former president of the National Center for State Courts. He argues that we focus on the things we can control, not those we don’t. He urges us to take a leadership role in getting our own house in order and in making sure we’re accountable to the public both for our use of funds and for our fidelity to fairness.

Court Review: Volume 42, Issue 1 - Table Of Contents

Court Review: Journal of the American Judges Association

No abstract provided.

Damaged Goods: Why, In Light Of The Supreme Court's Recent Punitive Damages Jurisprudence, Congress Must Amend The Federal Rules Of Evidence, Michael S. Vitale

Vanderbilt Law Review

Since the 1980s, a wide range of courts and commentators have expressed concern over large punitive damages awards handed out by civil juries against a wide array of tortfeasors. A late 2001 study revealed that from 1985 to 2001, eight multi-billion dollar punitive damages awards were granted, with four of them being handed down in the years 1999 to 2001 alone.' Not surprisingly, all but one of these verdicts were handed down against large corporations. Among the current members of the U.S. Supreme Court, Justice John Paul Stevens in particular has regularly noted the especially dangerous tendency the current punitive …

Court Review: Volume 42, Issue 1 - Cover

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 1 - Judicial Accountability, Fairness, And Independence, Roger K. Warren

Court Review: Journal of the American Judges Association

Much attention has focused of late on unfair attacks on judges leveled in nominal pursuit of greater judicial accountability. In response to the refusal of the federal courts to intervene in the Terry Schiavo case, for example, House Majority Leader Tom DeLay angrily declared that Congress has for many years “shirked its responsibility to hold the judiciary accountable.”