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Full-Text Articles in Law
Property's Boundaries, James Toomey
Property's Boundaries, James Toomey
Elisabeth Haub School of Law Faculty Publications
Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.
This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …
Court Review: Journal Of The American Judges Association, Vol. 59, No. 3, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal Of The American Judges Association, Vol. 59, No. 3, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal of the American Judges Association
Articles
Judicial Discipline, Examining Ethics Oversight for the Highest Levels of Our Least Accountable Branch; David Prince
Civil Cases in the Supreme Court’s October Term 2022; Thomas M. Fisher
Departments
Editor’s Note; David Dreyer
President’s Column: A Legacy of Leadership and Service; Yvette Mansfield Alexander
Thoughts from Canada: Uttering Threats in Canada and the United States, a Comparative Analysis; Wayne K. Gorman
Crossword: Name That Games; Tracy Bennett and Vic Fleming
The Resource Page: Junk Science and the Judicial System; The Elevator Effect; Mindfulness and Judging: Resources for Judges; New Online Database: Judges and the Judiciary: Exploring America's Court System; …
Court Review: Journal Of The American Judges Association, Vol. 59, No. 1, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal Of The American Judges Association, Vol. 59, No. 1, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal of the American Judges Association
Articles
Being “Human” in the Age of Artificial Intelligence; Katherine B. Forrest
Ten Tips for Getting the Most Out of an Evaluation of Your ODR Program; Donna Shestowsky and Jennifer Shack
The Dilemma of Black Coding: Assessing Algorithmic Discrimination Legislation in the United States; Clarence Okoh
Securing the Integrity of Our Judicial System: Protecting Judges Beyond the Courthouse; Ron Zayas
Want to Know More About AI? Editors’ Selections: Judge ChatBot Answers All Your Questions; David J. Dreyer
Departments
Editor’s Note; David Dreyer
President’s Column: 2023--The Year of Excellence! Yvette Mansfield Alexander
Crossword: Anonymous Oft-Quoted Remark; Vic Fleming
Thoughts from Canada: …
Court Review: Journal Of The American Judges Association, Vol. 59, No. 2, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal Of The American Judges Association, Vol. 59, No. 2, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal of the American Judges Association
Articles
Judicial Strategies for Evaluating the Validity of Guilty Pleas; Kelsey S. Henderson, Erika N. Fountain, Allison D. Redlich, and Jason A. Cantone
Courtroom Technology from the Judge’s Perspective: A 2022-23 Update; Fredric I. Lederer
The Science of Children’s Lies (and their Detection): A Primer for Justice Practitioners; Vincent Denault and Victoria Talwar
Jury Trial Innovation Round #2; Judge Gregory E. Mize
Departments
Editor’s Note; David Prince
President’s Column:2023, the Year of Excellence! Yvette Mansfield Alexander
Thoughts from Canada: The Supreme Court of Canada Considers How the “Plain View” Doctrine Applies to Searches of Electronic Devices; Wayne K. Gorman
Crossword:Employment …
Court Review: Journal Of The American Judges Association, Vol. 58, No. 1, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal Of The American Judges Association, Vol. 58, No. 1, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal of the American Judges Association
The Road to a Federal Family Court; Jane M. Spinak
The Role of Information Sharing to Improve Case Management in Child Welfare; Sarah J. Beal, Paul DeMott, Rich Bowlen, and Mary V. Greiner
Timely Permanency for Children in Foster Care: Revisiting Core Assumptions about Children’s Options and Outcomes; Sarah A. Font and Lindsey Palmer
The Deportation of America’s Adoptees; DeLeith Duke Gossett
Editor’s Note; Eve Brank
President’s Column; Yvette Mansfield Alexander
Crossword; Vic Fleming
Thoughts from Canada: The Impact of Anti-Black Racism on the Sentencing of “Black Offenders” in Canada: What Is the Correct Approach?; Wayne K. Gorman
The Resource …
Court Review: Journal Of The American Judges Association, Vol. 58, No. 3, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal Of The American Judges Association, Vol. 58, No. 3, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal of the American Judges Association
Civil Cases in the Supreme Court’s October Term 2021; Thomas M. Fisher
Threats to Impartiality in Capital Jury Selection: Addressing Dead-Serious Falsifications; Richard Rogers, Eric Y. Drogin, and Sara E. Hartigan
Science-Based Recommendations for the Collection of Eyewitness Identification Evidence; Margaret Bull Kovera, Jacqueline Katzman, Jennifer M. Jones, and Melanie B. Fessinger
Editor’s Note; David J. Dreyer
President’s Column; Yvette Mansfield Alexander
Crossword; Vic Fleming
Thoughts from Canada: Assessing Credibility: The Impact of a Motive to Lie and the Embellishment of Evidence -- the Canadian Approach; Wayne K. Gorman
The Resource Page: Democracy's Last Line of Defense: A …
Court Review: Journal Of The American Judges Association, Vol. 58, No. 4, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal Of The American Judges Association, Vol. 58, No. 4, Eve M. Brank, David Dreyer, David Prince
Court Review: Journal of the American Judges Association
Interview
Stresses of the Job in Modern Times: Coaching Resilience in Judges, Peer-to-Peer, an Interview with Jan Bouch; David Prince
Articles
Prosecutorial Misconduct: Assessment of Perspectives from the Bench, Saul M. Kassin, Stephanie A. Cardenas, Vanessa Meterko, and Faith Barksdale
Limiting Access to Remedies: Select Criminal Law and Procedure Cases from the Supreme Court’s 2021-22 Term, Eve Brensike Primus and Justin Hill
You Can Change Judging and Justice, Thomas R. French
The Online Courtroom: Leveraging Remote Technology in Litigation American Bar Association, Tort, Trial, and Insurance Practice Section, J. Gary Hastings
Departments
Editor’s Note, Eve Brank, David Dreyer, and David …
Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison
Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison
Articles
The soccer referee stands in for a judge. Soccer’s Video Assistant Referee (“VAR”) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.
Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore
Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore
All Faculty Publications
Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Faculty Publications & Other Works
No abstract provided.
Corporate Law Doctrine And The Legacy Of American Legal Realism, Edward B. Rock
Corporate Law Doctrine And The Legacy Of American Legal Realism, Edward B. Rock
All Faculty Scholarship
In this contribution to a symposium on "Legal Realism and Legal Doctrine," I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting influence on corporate law judging of American Legal Realism versus traditional U.K. Doctrinalism.
Specialist judges in both systems, aided by specialist lawyers, clearly identify and understand the core policy issues involved in a dispute and arrive at sensible results. Adjusting for differences in background law and institutions, it seems likely that the disputes would ultimately be …
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
Articles
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …
The Anti-Empathic Turn, Robin West
The Anti-Empathic Turn, Robin West
Georgetown Law Faculty Publications and Other Works
Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.
Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges …
Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain
Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain
Publications
International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …
Rulemaking Versus Adjudication: A Psychological Perspective, Jeffrey J. Rachlinski
Rulemaking Versus Adjudication: A Psychological Perspective, Jeffrey J. Rachlinski
Cornell Law Faculty Publications
Legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (the adjudicative process) or by declaring general principles through a centralized authority that are to be applied in individual cases (through the rulemaking process). Administrative agencies have long had the unfettered authority to choose between the two methods. Although each method could identify the same solution to the legal issues that come before them, in practice, the two systems commonly settle upon different resolutions. Each system presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different …
Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters
Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters
All Faculty Scholarship
This article, which has been published in slightly revised form at 96 Nw. U.L. Rev. 1 (2001), is an application and extension of my theory of adjudication as representation, which holds that the procedural elements of litigant participation and interest representation confer democratic legitimacy on court decisions. In the article, I first develop the notion of a "majoritarian difficulty": the often-ignored tension between democratic self-rule and majority domination of the political minority. Second, I offer a model of majoritarianism as a type of adjudication, in which interested parties lobby for favorable decisions by a neutral decisionmaker. Third, I contend that …
Politics And Denial, Pierre Schlag
The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot
The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot
LLM Theses and Essays
Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …
A Primer On The New Habeas Corpus Statute, Larry Yackle
A Primer On The New Habeas Corpus Statute, Larry Yackle
Faculty Scholarship
The Antiterrorism and Effective Death Penalty Act (Pub. L. 104-132), signed into law on April 24, 1996, represents Congress' attempt to deal with the problems deemed to beset federal habeas corpus for state prisoners. This new statute addresses many important aspects of habeas law and practice and, as to them, now occupies the field to the exclusion of previous arrangements-whether developed as a construction of preexisting statutes or as interstitial decisional law. On the whole, however, Pub. L. 104-132 presupposes the basic framework now in place. This matter-of-fact point (that the new statute takes the preexisting habeas landscape as its …
Progress And Constitutionalism, Robert F. Nagel
Adjudication Is Not Interpretation: Some Reservations About The Law-As-Literature Movement, Robin West
Adjudication Is Not Interpretation: Some Reservations About The Law-As-Literature Movement, Robin West
Georgetown Law Faculty Publications and Other Works
Among other achievements, the modern law-as-literature movement has prompted increasing numbers of legal scholars to embrace the claim that adjudication is interpretation, and more specifically, that constitutional adjudication is interpretation of the Constitution. That adjudication is interpretation -- that an adjudicative act is an interpretive act -- more than any other central commitment, unifies the otherwise diverse strands of the legal and constitutional theory of the late twentieth century.
In this article, I will argue in this article against both modern forms of interpretivism. The analogue of law to literature, on which much of modern interpretivism is based, although fruitful, …