Law Commons^™

Jurisdiction Revisited: The Inherent Supervisory Power Of The Courts To Review Administrative Decisions - The Case Of R (Ignaoua) V Sshd [2013] Ewca Civ 1498, Patrick Matthew Hassan-Morlai

Patrick Matthew Hassan-Morlai

The Court of Appeal handed down its decision in R (Ignaoua) v SSHD on 21 November. Ignaoua emphasizes that Parliament does not purport to remove the court’s jurisdiction to entertain judicial review proceedings under Section 15 of the Justice and Security Act 2013. This paper argues that the provisions in both the primary and secondary legislation in Ignaoua are clear enough to convey Parliament’s intention to give the Home Secretary the power to terminate judicial review proceedings or appeal from judicial review proceedings relating to a direction to exclude a foreign national from the United Kingdom. However, the Court of …

Activismo Judicial. Un Marco Para La Discusión, Sergio Verdugo Sverdugor@Udd.Cl, José Francisco García

Sergio Verdugo R.

No abstract provided.

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Equilibrium, Adam Lamparello

Adam Lamparello

No abstract provided.

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

Legal Writing As Good Writing; Tips From The Trenches, Michael A. Zuckerman, Andrey Spektor

Michael A. Zuckerman

No abstract provided.

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theftv, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Improving Parity In Personal Jurisdiction And Judgment Enforcement In International Cases: A Domestic Proposal To Help Revive The Hague Judgments Convention, Eric Porterfield

Eric Porterfield

Two aspects of American law inadvertently discriminate against American consumers and businesses to the benefit of foreign nationals. Restrictive personal jurisdiction rules often prevent American courts from exercising jurisdiction over foreign nationals on the grounds that they lack sufficient “contact” with the forum. Foreign product manufacturers can use this to their advantage, structuring their business dealings to take advantage of confusing constitutional constraints on personal jurisdiction, reducing, if not eliminating, the risk of potential tort liability in American courts, often leaving American consumers without a remedy and disadvantaging American businesses. American companies, in contrast, cannot avoid American tort law at …

Taming A Dragon: Legislative History In Legal Analysis, Mark Deforrest

Mark DeForrest

ARTICLE ABSTRACT

TAMING A DRAGON:

LEGISLATIVE HISTORY IN LEGAL ANALYSIS

Mark DeForrest

The use of legislative history in statutory interpretation and analysis has been an area of intensive inquiry since the 1980’s. The debate has been vigorous and has led to the development of sophisticated arguments by both the advocates of the use of legislative history and textualists critical of its use. While the debate has been ongoing, changes in technology have made it easier than ever to access detailed legislative history for both state and federal statutes. This article discusses the impact of both the debate and the technological …

Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill

Shlomo C. Pill

This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …

Overruling Precedent: "A Derelict In The Stream Of The Law", Michael Leroy

Michael H LeRoy

Will the Supreme Court overrule Hoffman Plastic Compounds v. N.L.R.B., 535 U.S. 137 (2002), its precedent that treats unlawful alien workers as criminals and denies them backpay for a violation of a labor law? More generally, what are the statistical indicators of a precedent that the Supreme Court overrules— and how well does Hoffman Plastic fit that profile? To answer these research questions, I analyze two unique databases— 128 federal and state rulings from 2002-2012 that involved Hoffman Plastic’s remedy issue, and a sample of 154 Supreme Court pairings of an overruled precedent, and the decision that explicitly …

The Concept Of Objectivity In The Uk Supreme Court Through A Comparative Looking Glass, Vito Breda

Vito Breda

This essay reports on the result of hermeneutical research entitled Objectivity in the UK Judicial Discourse. The concept of objectivity generates a plurality of analysis. For instance, in legal theory, MacCormick suggests the possibility of an objective interpretation of cases. Objectivity in the UK Judicial Discourse focuses on the interpretation of the concept by common law judges. In particular, the project sought to map out the cluster of interpretations (and arguments derived therefrom) on the concept of objectivity by the House of Lords and the UK Supreme Court. The result of the study shows that within UK law there …

The Lawyer Rent-Seeker Myth And Public Policy, Teresa J. Schmid

Teresa J Schmid

ABSTRACT Two enduring fallacies in public policy are that lawyers are rent seekers who impair rather than stimulate the economy, and that there are too many of them. While lawyers may disagree with the first premise, they tacitly accept the second. These two fallacies have led leaders in both the political and professional arenas to adopt policies that impair access to justice. This study documents the negative effects of those policies and recommends courses of action to reverse those effects.

Wasting The Corporate Waste Doctrine: Why Waste Claims Are Obsolete In Delaware Corporate Law And Why The Waste Doctrine Is The Wrong Solution To The Problem Of Executive Compensation, Kris S. Swift

Kris S. Swift

Abstract

Kristen S. Swift

This Note makes several points, drawn from Delaware litigation history, on the futility of pleading corporate waste in Delaware. At inception, the waste doctrine was a tool for shareholder protection and empowerment; however, as calculated business risk became encouraged and later formally protected by the business judgment rule, the waste doctrine evolved to protect officers and boards and now sets a nearly impossible benchmark for misconduct that would allow shareholders to recover on a waste claim. The waste doctrine is inextricably tied to how business risk-taking is perceived by Delaware courts and shifting attitudes toward risk …

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …

Cause Judging, Justin Hansford

Justin Hansford

Building on the framework of “cause lawyering” scholarship, this Article explores the fact that, in a similar tradition as a “cause lawyering” law practice animated by dedication to a cause, “cause judging” exists as well. This insight has implications for judicial ethics norms. The hyper-partisan nature of modern American life has already cast doubt on the possibility that politically appointed judges can ever truly attain the “appearance of impartiality” demanded by judicial recusal standards. Instead, judicial ethics norms should embrace the fact that judges have moral and political ideals that inform their rulings when they exercise judicial discretion, and that …

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

Much Ado About Nothing?: What The Numbers Tell Us About How State Courts Apply The Unconscionability Doctrine, Susan D. Landrum

Susan Landrum

No abstract provided.

Kill-Lists And Accountability, Gregory S. Mcneal

Gregory S. McNeal

This article is a comprehensive examination of the U.S. practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mechanisms associated with the targeted killing process. The article makes two major contributions: 1) it provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill-lists extending through the execution of targeted strikes; 2) it provides a robust analytical framework for assessing the accountability mechanisms associated with those processes. …

Traffic Stops And The New Exclusionary Rule Regime: Why Harris, Hudson, And Herring Mandate That The Discovery Of An Outstanding Arrest Warrant Attenuate The Taint Of An Illegal Traffic Stop Except In The Case Of A Flagrant Fourth Amendment Violation, Risher G. Caves

Risher G Caves

Suppose that during the course of an illegal traffic stop officers discover an outstanding arrest warrant for the driver, make the arrest, and then discover evidence such as narcotics in the driver’s pocket. Under the exclusionary rule, should the narcotics be considered the “fruit” of the illegal stop or does the discovery of the arrest warrant attenuate the taint? This article explores the longstanding circuit split on this question and contends that the discovery of an outstanding arrest warrant should attenuate the taint unless the initial illegal traffic stop was a flagrant violation of the Fourth Amendment. Almost all courts …

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

Deciding Who Decides: Searching For A Deference Standard When Agencies Preempt State Law, John R. Ablan

John R Ablan

When a federal agency determines that the statute that it administers or regulations it has promulgated preempt state law, how much deference must a federal court give to that determination? In Wyeth v. Levine, the Supreme Court expressly declined to decide what standard of deference courts should apply when an agency makes a preemption determination pursuant to a specific congressional delegation to do so. Under this circumstance, this Article counsels against applying any single deference standard to an agency’s entire determination. Instead, it observes that preemption determinations are a complex inquiry involving questions of federal law, state law, and …

Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960’S And 70’S, Joe Custer

Joe Custer

This paper considers a research suggestion from Cass Sunstein to analyze segregation cases from the 1960's and 1970's and whether three hypothesis he projected in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving various models of judicial ideology, would pertain. My paper considers Sunstein’s three hypotheses in addition to other judicial ideologies to try to empirically determine what was influencing Federal Court of Appeals Judges in regard to Civil Rights issues, specifically school desegregation, in the 1960’s and 1970’s.

The Jury As Constitutional Identity, Andrew G. Ferguson

Andrew G Ferguson

This article seeks to re-conceptualize jury service in America. It suggests a new theory that looks at jury service not as a discrete task, but an on-going constitutional identity. Building off a historical tradition that dates from the Founding, but can be traced through the Suffrage Movement and the Civil Rights Era, this theory focuses on reclaiming the lost constitutional connection of jury service.

Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more …

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …

Parallel Justice: Creating Causes Of Action For Mandatory Mediation, Marie A. Failinger

Marie A. Failinger

. This article proposes that the American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases currently not justiciable, such as wrongs caused by constitutionally protected behavior. It describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts, discusses practical objections to the idea of mandatory mediation, and tests the idea of "mandatory mediation-only" causes of action using constitutional hate speech and invasion of privacy examples.