Law Commons^™

American Antitrust Jurisprudence Applied To European Commission V. Intel, Paul Jones

Brigham Young University International Law & Management Review

No abstract provided.

The Supreme Court’S Rationale In Capital Cases: A One Way Street?, Kimberly Bliss

Pace Law Review

No abstract provided.

Merging In The Shadow Of The Law: The Case For Consistent Judicial Efficiency Analysis, Jamie H. Moffitt

Vanderbilt Law Review

This Article examines current judicial interpretation of Section 7 of the Clayton Act through the lens of negotiation theory. The research exposes a gap between how courts state they are analyzing efficiency claims in Section 7 Clayton Act enforcement actions and what they are actually doing. During periods of lax antitrust enforcement, this pattern is not readily visible, since almost all proposed merger and acquisition ("M&A") deals are approved. With a shift to more aggressive antitrust policy, however, it is critical that merger review include appropriate weighing of transaction-generated efficiencies-something missing from courts' current antitrust analysis. Although only a small …

The Judge As Author / The Author As Judge, Ryan B. Witte

Golden Gate University Law Review

The first section of this Article discusses the judge as an author. This section begins with an examination of the audience for judicial opinions and an outline of the different styles of judicial opinion writing. The second section of this Article examines the advantages and disadvantages of using literary tools to advance the law. The third section of this Article explores the role of the author as a judge. This section will study a small number of judges who, in addition to the law, maintain outside lives as authors or creative writers. Judges who fit into this category include authors …

Access To Justice In Times Of Fiscal Crisis, Chief Justice Ronald M. George

Golden Gate University Law Review

Ronald M. George is the 27th Chief Justice of the California Supreme Court. He delivered this address at the Golden Gate University School of Law on October 20, 2009.

Dissent, Judge William A. Fletcher

Golden Gate University Law Review

No abstract provided.

When Are Law And Economics Isomorphic?, John Cirace

Golden Gate University Law Review

The legal community generally views the way in which judges decide cases as a rational decision process. However, the concept of judicial rationality is ambiguous, because judges use two rational decision processes: legal rationality and economic rationality. Legal rationality is based on the principle of precedent, or stare decisis, which requires that judges decide like cases alike. Judges determine whether cases are like or distinguishable through the construction of legal classifications and through recognition of factual similarities and differences.

"On Certiorari To The Ninth Circuit Court Of Appeals": The Supreme Court's Review Of Ninth Circuit Cases During The October 2006 Term, Jessica L. Hannah, Kevan P. Mclaughlin

Golden Gate University Law Review

Whether reversed, affirmed, vacated, or remanded, a review of the interaction between the two courts over twenty-two cases reveals several fundamental differences between the two courts on key issues. This Comment examines these differences by exploring twenty of those decisions and how they illustrate the relationship between the Ninth Circuit and Supreme Court. Part I examines the decisions that arose from the Supreme Court's review of Ninth Circuit decisions. Part II ties these decisions and conclusions into a larger motif emerging between the Ninth Circuit and Supreme Court, and Part III ultimately concludes that the future is likely to continue …

The Servant Of All: Humility, Humanity, And Judicial Diversity, Michael Nava

Golden Gate University Law Review

This article discusses how judicial diversity might increase qualities of humility and humanity on the bench. I close this section with two examples, the first involving two United States Supreme Court justices and the second a judge on the San Francisco Superior Court.

Voir Dire Racial Discrimination Under A "Comparative Juror Analysis" In Kesser V. Cambra, Andje Morovich

Golden Gate University Law Review

In Kesser v. Cambra, the en banc Ninth Circuit panel held that a California State Prosecutor's justifications for peremptory challenges during jury voir dire were pretexts for purposeful discrimination. The Ninth Circuit concluded that the California Court of Appeal failed to apply the proper Supreme Court test under Batson v. Kentucky to determine whether the prosecutor's nonracial motives were pretextual. Applying a "comparative juror analysis" (comparing the characteristics of a stricken juror with an impaneled juror), the Ninth Circuit majority held that the California Court of Appeal improperly relied solely on the prosecutor's own self-serving testimony as to his race-neutral …

Judicial Independence: A Cornerstone Of Liberty: Golden Gate University School Of Law Jesse Carter Distinguished Speaker Series, Michael Traynor

Golden Gate University Law Review

Constitution Day Lecture, September 18, 2006

A Call For Uniformity In Appellate Courts' Rules Regarding Citation Of Unpublished Opinions, Analisa Pratt

Golden Gate University Law Review

This Comment is divided into seven parts. Part I provides an overview of the current practice concerning citation of unpublished opinions, including a look at how unpublished opinions came into existence, the types of opinions currently published, and the courts' reasoning for limiting citation of unpublished opinions. Part II describes the variations on precedential value an opinion could receive and describes the no-citation rules by circuit. Part III discusses the debate between the Eighth and the Ninth Circuits - the two most vocal circuits on the issue of citability. Part IV deconstructs the reasoning behind no-citation rules. Part V examines …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

“Bring[Ing] Our Enemies To Justice”: Terrorism And The Court, Anna Elazan

Legislation and Policy Brief

This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments …

Union Power, Soul Power: Intersections Of Race, Gender And Law, Wendy L. Wilbanks

Golden Gate University Law Review

This Comment will cover three main topics. First, this Comment will tell the story of the Charleston strike and the individual women involved. Second, this Comment will examine, through the eyes of those individuals, the unique ways in which race and gender come together to create unique circumstances that deserve legal consideration. For both of these sections, I use the women's own voices to illustrate and reinforce substantive points. Third, this comment will describe the 10-day strike notice provision, examining how it would have affected the Charleston workers had it been enacted in 1969 during the time of the strike. …

In Search Of A Standard For Judicial Review Of Legal Error In Commercial Arbitration Awards, James R. Madison

Golden Gate University Law Review

This paper surveys cases under California law in which commercial arbitration awards have been reviewed for errors of law and proposes a coherent approach to judicial review of alleged errors of law in commercial arbitration awards. Both of the following issues will be addressed: 1. When and how courts should decide whether parties to an arbitration agreement have reserved arbitrator decisions on points of law for judicial review. 2. Whether and, if so, when and by what standard courts should review arbitrator decisions on points of law when the parties have not agreed to reserve such issues for review.

Bobb V. Municipal Court: A Challenge To Sexism In Jury Selection And Voir Dire, Randy Riddle

Golden Gate University Law Review

This Note discusses how sexism in the jury selection and voir dire processes can operate to produce a voir dire which violates of a prospective juror's guarantee of equal protection. It then outlines California's use of strict scrutiny to analyze gender-based classifications. Third, the Note reviews and evaluates the three Bobb opinions. Finally, the significance of Justice Miller's opinion is discussed.

The Nature Of A Passport At The Intersection Of Customary International Law And American Judicial Practice, Richard A.C. Alton, Jason Reed Struble

Annual Survey of International & Comparative Law

In order to fully develop the argument that the DHS’s confiscation and impoundment of passports is a violation of customary international law, we begin by examining the history of a passport and its treatment in the international community. Next, we survey general principles of customary international law and analyze German case law holding that one State’s confiscation or impounding of a valid foreign passport constitutes an encroachment upon the passport jurisdiction of the foreign State issuing the documents which is impermissible under customary international law. Thereafter, we discuss case law where courts avoided addressing the international implications of passport seizures. …

Oral Argument In The Ninth Circuit: The View From Bench And Bar, Stephen L. Wasby

Golden Gate University Law Review

The present Article is a detailed presentation of the views of judges and lawyers in one federal appellate court about various aspects of oral argument. It is part of a larger study of the U.S. Court of Appeals for the Ninth Circuit, based on interviews conducted with fifteen of the court's then eighteen active-duty and senior circuit judges and a dozen district judges, all with extensive experience on the appellate court. To provide at least a limited basis for comparison with the judges' responses, information was sought from attorneys who had argued before the court and would thus have some …

Judicial Administration In The United States Court Of Appeals For The Ninth Circuit, Richard H. Deane, Valerie Tehan

Golden Gate University Law Review

The federal court system has experienced substantial growth in case filings during the last decade, and certainly the U.S. Court of Appeals for the Ninth Circuit is no exception. During the period from 1970 to 1978, the court experienced almost a one hundred percent increase in yearly filings while the number of judgeships remained constant at thirteen. It is thus understandable that each year since 1970, case filings have consistently exceeded case terminations. However, a dramatic change in court membership has taken place in the past eighteen months. As a result of the recent appointments made pursuant to the Omnibus …

Citizens United And The Threat To The Regulatory State, Tamara R. Piety

Michigan Law Review First Impressions

Although Citizens United has been roundly criticized for its potential effect on elections and its display of judicial immodesty (or "activism"), the effect of the case which may be both most profound and perhaps most pernicious is its effect on the commercial speech doctrine. This is an aspect of the case which has been largely overlooked. Most people seem to be unaware of any connection between election law and the commercial speech doctrine-except, that is, those who have been working long and hard to accomplish the change it foreshadows. They are keenly aware of its implications.

General Principles Of Law, Guido Alpa

Annual Survey of International & Comparative Law

No abstract provided.

People V. Orin: Penal Code Section 1385 Dismissals And The Effectuation Of Plea Bargains, Robert N. Weaver

Golden Gate University Law Review

No abstract provided.

Music As Speech: A First Amendment Category Unto Itself, David Munkittrick

Federal Communications Law Journal

Perhaps the most ubiquitous of art forms, music accompanies daily activities from shopping to jogging. Music permeates modem society, and there is little question it constitutes an integral mode of expression. Despite recognition of music's worth, however, there is little explanation of music in First Amendment jurisprudence. A rationale for First Amendment protection begins with analysis of the particular medium of speech. Through a foray in musical aesthetics and the history of musical censorship, this Note discusses the role of music in political, societal, and individual experience. Music has had an important role in political events, from the fall of …

In The Park: A Jurisprudential Primer, Allan C. Hutchinson

Osgoode Hall Law Journal

No abstract provided.

A Planet By Any Other Name…, Kimberly Kessler Ferzan

Michigan Law Review

In case you haven't heard, Pluto isn't a planet anymore (and maybe it never was). In grade school, we all memorized the planets, giving little thought to what made something a planet besides revolving around the Sun and being part of some familiar mnemonic. However, scientific discoveries about Pluto and other parts of space led scientists to question Pluto's planetary status and ultimately, to strip Pluto of its standing among the planets. This leads to the inevitable question-what is a planet?-which turns out to be a more difficult and fascinating question than one might think. The Pluto Files grapples with …

The Death Penalty: Developments In Caribbean Jurisprudence, Anthony Gifford

International Journal of Legal Information

The presentation analyzes death penalty developments in the Caribbean jurisprudence. The discussion of a series of court decisions leads to the opinion that it is not right for the State to “end the life of a human being.” It questions death penalty as punishment for crime versus “the capacity of individuals for redemption and rehabilitation."

Trimming The Fat: A Study Of Mandatory Nutritional Disclosure Laws And Excessive Judicial Deference, Charles R. Yates, Iii

Washington and Lee Law Review

No abstract provided.

Justice As Play, Jack L. Sammons

Mercer Law Review

I am interested here in using Johannes Huizinga's work on play, Homo Ludens, to explore a strange, yet civilizing, phenomenon. Why do we take those social disputes in our ordinary lives that often seem most serious and therefore most divisive, turn them over to playful participants in a legal game, and then choose, more or less, to call the outcome of this game justice and to trust it as such even to the point of preferring it to the political? Why, that is, do we think that it is justice that arises from this play?

This inquiry is not …

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Washington and Lee Law Review

Stare decisis has been called many things, among them "~a principle of policy, " "a series ofprudential and pragmatic considerations, " and simply "the preferred course. " Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts. This Article examines stare decisis as applied by the U.S. Supreme Cour~, our nation 's highest doctrinal authority. A review of the Court 'sjurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely …