Law Commons^™

Judicial Review And Deliberative Politics. A Tension In Need Of Analysis., Donald E. Bello Hutt

Donald E. Bello Hutt

Champions of judicial review of legislation have defended this institution even before John Marshall decided Marbury v. Madison in 1803. Nevertheless, those defenses have to face with several difficulties, both practical and abstract. The aim of this paper is to analyze those difficulties and the context in which the defenses have been successful. We shall discuss the origins of judicial review in the work of James Iredell, Alexander Hamilton and John Marshall in order to introduce not only the first defenses of judicial review, but to fix the political context and dominant constitutional philosophy at their time: departmentalism and popular …

Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel J. Turnbull

Emanwel J Turnbull

American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.” This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation. …

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over I.C.C. core crimes is …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes

Warren S Grimes

The Supreme Court has become an unelected superlegislature that, instead of narrowly deciding cases or controversies, tends to issue sweeping policy decisions that deprive democratic institutions at federal, state and local levels of their appropriate democratic role. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Cases, Warren S. Grimes

Warren S Grimes

The Court has strayed from its role as a decider of cases or controversies to become an unelected policy board that undermines democratic institutions at the federal, state, and local levels. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial activism and restore the Court’s primary …

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of efficiency of judicial proceedings and fairness to nonresidents than the immunity from service of process doctrine. The article proposes that the immunity from service of …

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters

Daniel E Walters

No abstract provided.

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

Death to Immunity From Service of Process Doctrine!

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of …

Partisanship, Politics, And The Voting Rights Act: The Curious Case Of U.S. V. Ike Brown, Donald E. Campbell

Donald E. Campbell

The Voting Rights Act of 1965 has been described as the “crown jewel” of the civil rights movement. The success of the Act to remove official obstacles to voting is undeniable, and the influx of African American voters into the political system changed the nature of politics in the United States at all levels. The political and cultural context has changed so greatly that in 2006, it was politically possible for the Justice Department of President George W. Bush to bring the first claim against an African American for violating the voting rights of white citizens. This article seeks to …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Aaron Christopher Bryant

Constitutional Newspeak: Learning to Love the Affordable Care Act Decision In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite – as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell’s was that such abuse of language – which in his novel he labeled “Newspeak” -- would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical …

The Mandatory Meaning Of Miller, William W. Berry Iii

William W Berry III

In June 2012, the United States Supreme Court held in Miller v. Alabama that the imposition of mandatory life-without-parole sentences on juveniles violated the Eighth Amendment’s ban on “cruel and unusual” punishment. This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade. In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Miller to other …

The Ideological Divide: Conflict And The Supreme Court’S Certiorari Decision, Emily Grant, Scott A. Hendrickson, Michael S. Lynch

Emily Grant

This Article bridges a gap in existing literature by evaluating, from an empirical perspective, the impact of conflict among the lower courts on the Supreme Court’s decision to grant or deny a petition for a writ of certiorari. Specifically, this Article looks at the political ideology of the lower courts involved in a split of authority on federal law and compares those positions to the political ideology of the Supreme Court itself. This Article concludes that the ideological content of lower court opinions in a conflict case impacts the Supreme Court’s certiorari decisions in a statistically significant way, and thus …

Textualism And Obstacle Preemption, John D. Ohlendorf

John D Ohlendorf

Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to find state laws preempted as “obstacles to the accomplishment and execution of the full purposes and objectives of Congress,” — so-called “obstacle preemption.” This Article argues that by giving the meaning contextually implied in a statutory text ordinary, operative legal force, we can justify most of the current scope of obstacle preemption based solely on theoretical moves textualism already is committed to making.

The Article …

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi

Steven G Calabresi

This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …

Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim

Catherine Y Kim

Since Brown v. Board of Education, the federal courts have played an expansive role in institutional reform litigation to restructure state and local government institutions such as public school systems, prisons, law enforcement agencies, and health care facilities accused of violating individual rights. The 2009 decision in Horne v. Flores, in which a five-four majority of the Supreme Court employed a novel interpretation of the Federal Rules of Civil Procedure to substantially enlarge government-defendants’ ability to terminate ongoing judicial oversight in these types of cases, threatens the future viability of this model of social reform. The propriety of institutional reform …

Civil Rule 54(B); Seventy-Five And Ready For Retirement, Andrew S. Pollis

Andrew S Pollis

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first to describe them comprehensively, analyze their root causes, and offer a workable alternative. When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by finding “no just reason for delay.” The rule was designed to ease the hardship on litigants who would otherwise have to await …

State Constitutional Prohibitions On Special Laws, Justin R. Long

Justin R Long

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general” laws that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …

Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall

Kenneth J Duvall

Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …

Keeping The Inference In The Adverse Inference Instruction: Why Federal Courts Cannot—And Should Not—Give The Instruction Based On The Spoliator’S Negligence, William G. Lambert

William G. Lambert

The adverse inference instruction is one tool that a judge has to combat spoliation, the destruction of evidence. The instruction allows a jury to infer that a party destroyed evidence because that evidence was harmful to the party’s case. Traditionally, courts would give the instruction only when the spoliator acted with bad faith. Since the 1990s, however, some federal courts and many scholars have argued that a spoliator’s negligent destruction of evidence should suffice to allow courts to give an adverse inference instruction. As a result of this shift, the circuits are now split on the level of mental culpability …

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …

The Word Commons And Foreign Laws, Thomas O. Main

Thomas O Main

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

Legal Applications Of Modern Finance, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

While scholars and practitioners have applied economics to law successfully for decades, there has been almost no similar application of modern finance. Courts have used the central concept of classical finance, time value of money, for many years, but their use is still unsophisticated.

This article details two ways to apply modern finance to law. This article first describes a method of improving courts’ time value of money calculations, by using a systematically complete four factor analysis to determine the appropriate discount rate. This article then describes a method of calculating future damages that uses market price of risk, based …

Intellectual Property And Agriculture: The Brazilian Case On Soybeans And Monsanto, Marcelo D. Varella

Marcelo D. Varella

This article analyzes different strategies of an agricultural company (Monsanto) to enforce intellectual property rights on soybeans in Brazil, during the last ten years. A court decision in April 2011 condemned Monsanto to pay up to 7.5 billion dollars in compensations. This is probably one of the most important cases on discussion on IPR and Agriculture today. On the one hand, there is complex company strategy to create intellectual property rights through patents, plant variety protections, import market controls, and thousands of agreements and extensions of those rights through different lawsuits. The strategy was complemented by the acquisition of major …

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …

My Space Or Theirs? Trying To Reconcile The Messy Judicial Doctrine For Off-Campus Student Expression, Ryan C. Tuck

Ryan C Tuck

The Supreme Court's student expression jurisprudence is notoriously muddled, but regarding one major question, the Court basically has remained silent: whether and when schools can regulate student expression that originates physically beyond the campus and lacks any indicia of school sponsorship. The Court has included some suggestive language in its four landmark student expression cases, including its most recent decision in 2007, but the Court never has resolved this issue. And after denying a pair of petitions for certiorari earlier this year, the Court appears unlikely to do so anytime soon. (The Court denied a similar petition the previous term.) …

Admissibility Of Dna Evidence: Italy Under Attack, Adina Rosenfeld

Adina Rosenfeld

The purpose of this paper is to compare the differences and similarities in the evidentiary rules for DNA in Italy and in the United States in the light of their two different legal traditions. This note will compare American and Italian rules of evidence and procedure for the admissibility of DNA in criminal trials and analyze the most relevant differences between the two systems. Based on this comparison, the note will argue that Amanda Knox would not have been convicted of murdering her roommate in American lower court because the DNA evidence would not have been admissible. In Italy, Knox …

The Criminal Justice System Creates Incentives For False Convictions, Roger Koppl, Meghan Sacks

Roger Koppl

We examine the incentive structure of the various actors of the criminal justice system within an organization economics framework. Specifically, we examine the incentives of the police, forensic scientists, prosecutors and public defenders. We find that police, prosecutors and forensic scientists often have an incentive to garner convictions with little incentive to convict the right person, whereas public defenders often lack the resources and incentives to provide a vigorous defense for their clients. The “multitask problem” of organizational economics helps explain how this skewed incentive structure creates false convictions.

Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart

Nicholas C Stewart

Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically …

Standing As Channeling In The Administrative Age, Dru Stevenson, Sonny Eckhart

Dru Stevenson

For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing. This Article takes the suggestion a step further, and argues that …