Law Commons^™

Decision-Making Patterns At The First Trial Of International Criminal Court: A Perspective On The Icc, Aldo Zammit Borda

Aldo Zammit Borda

The first trials of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) resulted in convictions of the accused. This Article seeks to understand this observation by applying new institutionalist perspectives to decision-making processes of international criminal courts and tribunals. This Article argues that the first trials of such courts are affected by a learning curve and should be differentiated from other trials because of, inter alia, the novelty of the proceedings, the absence of previous jurisprudence, and the need to develop modi operandi, often from scratch. It then discusses decision-making patterns …

Risk Regulation And Regulatory Litigation, Patrick A. Luff

Patrick A. Luff

Since at least the 1960s, when Congress enacted civil rights statutes that provided for private enforcement, courts have been hotbeds of public policy. Only recently, however, has this phenomenon been recognized for what it is: courts have become essential actors in the regulatory state. What little scholarship there is on the use of courts to achieve regulatory ends is often heavy on rhetoric, but short on theory. While commentators have been quick to criticize the phenomenon of regulatory litigation, they have done little to determine what it actually is. As a result, the young field of regulatory litigation lacks fundamental …

Tangled Up In Knots: How Continued Federal Jurisdiction Over Sexual Predators On Indian Reservations Hobbles Effective Law Enforcement To The Detriment Of Indian Women, Suzianne D. Painter-Thorne

Suzianne D. Painter-Thorne

An Indian woman is two-and-a-half times more likely than any other American woman to be sexually assaulted in her lifetime. Nevertheless, because of a confusing tangle of jurisdictional rules, she is four times less likely to see her assailant arrested. She is even less likely to see him stand trial. Because jurisdiction over most sexual assaults is vested in the federal government, Indian tribes are not allowed to arrest or prosecute most of the suspects who commit sexual assaults on tribal lands. Consequently, tribal lands have become safe havens for sexual predators, who can commit their offenses with impunity and …

Juvenile Justice Reform 2.0, Tamar R. Birckhead

Tamar R Birckhead

Before the 1954 decision in Brown v. Board of Education, the United States Supreme Court’s exercise of judicial review did not support the notion that constitutional litigation could be an effective instrument of social reform. The Court’s principled rejection of racially segregated public education, however, gave new legitimacy to the concept of judicial review, transforming it from an obstacle into a principal means of achieving social progress. Since then, federal courts have impacted public policy in many areas – from housing, welfare, and transportation to mental health institutions, prisons, and juvenile courts. Yet, there are inherent structural challenges to effecting …

Painting Black Spaces Red, Black, And Green: The Constitutionality Of The Mural Movement, Jesse R. Merriam

Jesse R Merriam

“We live by symbols,” Justice Oliver Wendell Holmes wrote. This aphorism certainly rings true in many American inner cities, where murals depicting racial images, such as African symbols and portraits of famous African Americans, pervade the urban landscape. Indeed, the “by” in Holmes’s statement applies to inner-city residents with special force because these residents not only live close to murals, but also according to the symbols contained therein. Pablo Neruda, the Chilean writer and politician, is reported to have described this relationship in more populist language, claiming: “Murals are the people’s blackboard.” But Neruda’s statement obscures the fact that murals …

Originalism As An Anchor For The Sixth Amendment, Jeffrey L. Fisher

Jeffrey L Fisher

Originalism is sometimes criticized as merely a means to justify conservative results. And cases do indeed exist in which the Supreme Court has divided along liberal-conservative lines, and conservatives have played originalism as a purported trump card. Last Term’s decision in District of Columbia v. Heller, interpreting the Second Amendment as including an individual right to bear arms, is a recent example.

When it comes to criminal procedure, however, things are not so simple. This Essay examines two lines of cases: first, those involving the Court's reinvigoration of the Sixth Amendment right to jury trial, and second, those involving the …

State Law, U.S. Power, Foreign Disputes: Understanding The Extraterritorial Effects Of State Law In The Wake Of Morrison V. National Australia Bank, Katherine Florey

Katherine J. Florey

The recent Supreme Court case of Morrison v. National Australia Bank embraced a sweeping version of the presumption against extraterritorial application of federal law, and in doing so dramatically restricted the potential applicability of federal securities law to foreign litigants and transactions. This development has attracted a wealth of commentary, most of which has focused on the implications for the future treatment of federal statutes that may apply to foreign conduct.

Scholars have overlooked, however, perhaps the most remarkable consequence of the Court’s opinion in Morrison: the fact that it in effects makes state law more widely applicable abroad than …

A New Public Interest Appellate Model: Public Counsel’S Court-Based Self-Help Clinic And Pro Bono “Triage” For Indigent Pro Se Civil Litigants On Appeal, Meehan Rasch

Meehan Rasch

A variety of new “pro se” or “pro bono” appellate programs have been sprouting up around the country in recent years. Courts, bar associations, and legal services and advocacy organizations are implementing these projects to grapple with the challenges raised by increasing numbers of pro se (self-represented) and indigent civil litigants in appellate courts. Judicial operational systems designed on the premise of adequately counseled parties are ill-prepared to handle an influx of self-represented litigants, posing frustrations for both pro se litigants and court personnel. The expansion of pro se litigation strains appellate court resources and staff, but because of the …

Rethinking Rule 59'S Appellate 'Waiver' For Magistrate Judge Adjudication Post-Olano, Meehan Rasch

Meehan Rasch

In 1985, the U.S. Supreme Court held in Thomas v. Arn that a federal court of appeals may establish a rule that failure to file objections to a magistrate judge’s report and recommendations "waives" both the right to further review by the district court and the right to appeal the judgment to the court of appeals. The Arn majority determined that such a rule did not remove the essential attributes of the judicial power from the Article III court or elevate non-life-tenured magistrate judges to the functional equivalents of Article III judges. Rather, loss of the right to any Article …

Foreign Citizens In Transnational Class Actions, Jay Tidmarsh, Linda Sandstrom Simard

Jay Tidmarsh

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries …

The Puzzling Resistance To Judicial Review Of The Legislative Process, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

Should courts have the power to examine the legislature’s enactment process and strike down statutes enacted contrary to procedural lawmaking requirements? This idea remains highly controversial. While substantive judicial review is well-established and often taken for granted, many judges and scholars see judicial review of the legislative process as utterly objectionable. This Article challenges that prevalent position and establishes the case for judicial review of the legislative process. The Article contends that, ironically, some of the major arguments for substantive judicial review in constitutional theory, and even the arguments in Marbury v. Madison itself, are actually more persuasive when applied …

En Banc Revealed: Procedure, Politics, And Privacy, Abigail Stecker

Abigail Stecker

The en banc process is complex and perhaps mysterious. Through this process, a majority of judges on a federal court of appeals can vote to rehear a case that its own three-judge panel already decided; thus, rehearing a case en banc allows the court to issue a superseding decision with highly precedential effect. In theory, en banc rehearing allows all of the court’s judges to determine circuit law, rather than just three judges. In the Ninth Circuit, specifically, multiple events must occur before the court will rehear a case en banc. Many of these events are complicated and private, despite …

Revelation And Reaction: The Struggle To Shape American Arbitration, Thomas J. Stipanowich

Thomas J. Stipanowich

In this article, Professor Stipanowich explores recent decisions by the U.S. Supreme Court and the implications for the respective domains of courts of law and arbitration tribunals regarding so-called “gateway” determinations surrounding the enforcement of arbitration agreements and the contracts of which they are a part. The decisions address the complex interplay between federal substantive law focusing on questions of arbitrability, a body of law defined and expanded by the Court under the Federal Arbitration Act (FAA), and the law of the states and bring into play competing judicial philosophies of contractual assent and contrasting views about the balance between …

The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion And The Future Of American Arbitration, Thomas J. Stipanowich

Thomas J. Stipanowich

For the third time in the modern era, a triad of key Supreme Court decisions represents a milestone in American arbitration. In this highly controversial “Third Arbitration Trilogy,” the U.S. Supreme Court aggressively expands the “revealed” penumbra of substantive arbitration law under the Federal Arbitration Act and shores up the bulwarks of private, binding dispute resolution under standardized contracts of adhesion binding employees and consumers. In Stolt-Nielsen S.A. v. AnimalFeeds International, 130 S. Ct. 1758 (2010), the Court, against the backdrop of an international commercial contract scheme and a unique procedural scenario, draws upon the wellspring of divined “federal substantive …

Justice Stevens' Jurisprudence Of Respect, Nancy S. Marder

Nancy S. Marder

No abstract provided.

Hybridizing Jurisdiction, Scott Dodson

Scott Dodson

The Rise Of The Common Law Of Federal Pleading: Iqbal, Twombly And The Application Of Judicial Experience, Henry S. Noyes

Henry S. Noyes

With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand …

Modern American Supreme Court Judicial Methodology And Its Origins: A Critical Analysis Of The Legal Thought Of Roscoe Pound, Beau James Brock

Beau James Brock

The pragmatic philosophy of law espoused by Pound has come to be regarded as a textbook method of adjudication. The most telling commentators of all have been the judges themselves who utilize his balancing of social interests in their adjudication of cases. Finally, his pragmatism has been assimilated into mainstream legal thought producing innovative attempts to address the possibly unanswerable question of the proper valuation of competing interests.