Law Commons^™

Meta-Theory Of International Criminal Procedure: Vindicating The Rule Of Law, Jens David Ohlin

Cornell Law Faculty Publications

International criminal procedure is in a second phase of development, moving beyond the common law/civil law dichotomy and searching for its sui generis theory. The standard line is that international criminal procedure has an instrumental value: it services the general goals of international criminal justice and allows punishment for violations of substantive international criminal law. However, international criminal procedure also has an important and often overlooked intrinsic value not reducible to its instrumental value: it vindicates the Rule of Law. This vindication is performed by adjudicating allegations of criminal violations that occurred during periods of anarchy characterized by the absence …

Personal Autonomy And Vacatur After Hall Street, Richard C. Reuben

Faculty Publications

This article analyzes the implications of the U.S. Supreme Court’s landmark decision in Hall Street Associates v. Mattel, Inc., 128 S.Ct. 1396 (2008), in which the Court said that arbitration parties may not contract for substantive judicial review of arbitration under the Federal Arbitration Act. The article contends that Hall Street Associates was rightly decided as a matter of dispute resolution process characteristics and values theory because it preserves arbitration’s central virtue of finality. It further argues that the Court’s insistence on the exclusivity of the FAA’s statutory grounds for vacatur should spell the end of the so-called “non-statutory” grounds …

Unlv Magazine, Michelle Mouton, Tony Allen, Afsha Bawany, Shane Bevell, Phil Hagen, Greg Lacour, Erin O'Donnell, Karyn S. Hollingsworth

UNLV Magazine

No abstract provided.

Atrocity Crimes Litigation: 2008 Year-In-Review, Beth Van Schaack

Faculty Publications

This survey of 2008's top developments in these international fora will focus on the law governing international crimes and applicable forms of responsibility. Several trends in the law are immediately apparent. The tribunals continue to delineate and clarify the interfaces between the various international crimes, particularly war crimes and crimes against humanity, which may be committed simultaneously or in parallel with each other. Several important cases went to judgment in 2008 that address war crimes drawn from the Hague tradition of international humanitarian law, and the international courts are demonstrating a greater facility for adjudicating highly technical aspects of this …

The Paternalistic Ideology Of Erisa And Unforgiving Courts: Restoring Balance Through A Grand Bargain, Edward A. Zelinsky

Articles

No abstract provided.

Defining Family: Naming, Orientation, And Redemption In The Case Of Terri Schiavo, M. Chad Mcbride, Karen L. Taas, Paige W. Toller

Communication Faculty Publications

This paper undertakes a detailed analysis of the Terri Schiavo case as it was covered in popular media. Drawing on Burkean theory, we argue a critical issue in the case was a struggle between Terri's parents and husband to be seen as the more legitimate family in order to determine the duration and extent of Terri 's medical care. We discuss how the private debate over Terri's health and the decision to remove her feeding tube entered into the public scenes of legal and political action. This shift to the public scene represented problems for the parties directly involved in …

Judicial Independence In Excess: Reviving The Judicial Duty Of The Supreme Court, Paul D. Carrington, Roger C. Cramton

Cornell Law Faculty Publications

Independence from extrinsic influence is, we know, indispensable to public trust in the integrity of professional judges who share the duty to decide cases according to preexisting law. But such independence is less appropriate for those expected to make new law to govern future events. Indeed, in a democratic government those who make new law are expected to be accountable to their constituents, not independent of their interests and unresponsive to their desires. The Supreme Court of the United States has in the last century largely forsaken responsibility for the homely task of deciding cases in accord with preexisting law …

What Is The Settlement Rate And Why Should We Care?, Theodore Eisenberg, Charlotte Lanvers

Cornell Law Faculty Publications

After establishing the importance of knowledge of settlement rates, this article first shows that different research questions can yield different settlement rates. Using data gathered from about 3,300 federal cases in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), differing measures of settlement emerge depending on whether one is interested in (1) settlement as a proxy for plaintiffs’ litigation success, or (2) settlement as a measure of litigated disputes resolved without final adjudication. Using settlement as a proxy for plaintiff success, we estimate the aggregate settlement rate across case categories in the two districts to …

Brief Of Amici Curiae In Support Of Respondent, Robert Calvin Brown, Iii V. State Of Maryland, No. 08-118, Brenda Bratton Blom

Court Briefs

Amici brief filed by the University of Maryland School of Law’s Clinical Program and members of the Baltimore legal community including legal educators, lawyers, student attorneys, service providers, government administrators, community based organizations, and nationally recognized individuals from community justice initiatives and organizations on Respondent’s behalf. The individuals and organizations represented in the brief have all collaborated together to build and support what are colloquially known as “problem solving dockets”: courts that are specialized, alternative sentencing dockets that offer diversionary programs to qualified offenders. The dockets are run out of Maryland’s district and circuit courts, but not separate, freestanding judicial …

Deconstructing The Psychopath: A Critical Discursive Analysis, Cary H. Federman, Dave Holmes, Jean Daniel Jacob

Department of Justice Studies Faculty Scholarship and Creative Works

She loved accidents: any mention of an animal run over, a man cut to pieces by a train, was bound to make her rush to the spot. The spectacle of the wounded body has always had its lurid attractions. Coverage of serial killings and graphic accounts of brutal murders by various media is part of our “spectacular” culture fascinated by violence and brutality. The television is often the site where private desire and public fantasy meet, and where the fascination regarding dangerous offenders is initiated and nurtured (Knox, 17–18; Lesser). The convening of the public around scenes of violence represents …

The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year

This Article …

Should Brian Nichols Be Tried In A Federal Court?, Ronald Carlson, Donald E. Wilkes

Popular Media

Although Brian Nichols has been sentenced in state court to a total of 485 years of imprisonment, the question has been raised whether he should subsequently be tried in federal court for the murder of an off-duty U.S. Customs agent. Prof. Carlson argues in the affirmative, while Prof. Wilkes finds the suggestion "stupendously stupid."

Negligence Per Se And Res Ipsa Loquitur: Kissing Cousins, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

Managing Performance [In Child Welfare Supervision], Megan E. Paul, Michelle Graef, Erika J. Robinson, Kristin Saathoff

Center on Children, Families, and the Law: Faculty Publications

One of the primary roles of a supervisor is to manage worker performance. Performance management is the "continuous process of identifying, measuring, and developing the performance of individuals and teams and aligning performance with the strategic goals of the organization" (Aguinis, 2007, p. 2). Supervisors must regularly assess current performance levels and take steps to improve performance in a way that is congruent with agency goals. The ultimate goal is to achieve agency objectives through individual and team performance.

To effectively manage performance, supervisors must know what the performance expectations are for workers and clearly communicate these expectations to workers. …

Recruiting And Selecting Child Welfare Staff, Michelle Graef, Megan Paul, Tara L. Myers

Center on Children, Families, and the Law: Faculty Publications

In this chapter, the focus is on recruiting and selecting new staff and on the steps agencies can take to ensure that they are doing the best possible job to attract and hire a high-performing, committed workforce. This chapter reviews a number of strategies for improving recruitment and selection processes and provides case examples from the authors' work with child protection agencies in several states. These projects have been accomplished by a team of researchers at the University of Nebraska-Lincoln's Center on Children, Families, and the Law (CCFL). Some of the techniques described here will be familiar, whereas others are …

The Saucier Qualified Immunity Experiment: An Empirical Analysis, Nancy Leong

Faculty Publications

No abstract provided.

Why The United States Supreme Court Got Some [But Not A Lot] Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus

Faculty Publications

No abstract provided.

Regulating Discourtesy On The Bench: A Study In The Evolution Of Judicial Independence, Bruce Green, Rebecca Roiphe

Articles & Chapters

In this paper, we argue that the myth of the detached, rational judge, free from emotion runs the risk of undermining the quality of judging, obscuring the transparency of judicial decisions, and deterring the development of diverse judicial styles. We explore the history of the myth of the detached judge and how it made its way into rules of judicial conduct. By contextualizing this image of the judiciary, the article concludes that the rules of judicial conduct have come to embody an antiquated understanding of judicial independence and ought to be revised to reflect a more modern concept of the …

Review Of Trial Of Modernity: Judicial Reform In Early Twentieth Century China, 1901-37, By Xiaoqun Xu, Nicholas C. Howson

Reviews

Observing these significant legal-political debates in the Chinese press and academy in the first decade of the twenty-first century, we might think they concern battles started only in the last decade and a half of Reform-era China. Now Professor Xu Xiaoqun reminds us that these struggles have a much longer pedigree, stretching back to the end of the nineteenth century and China's first fraught encounter with "the West" and one idea of "modernity."

The Michigan Supreme Court, Stare Decisis, And Overruling The Overrulings, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Reality Bites: The Illusion Of Science In Bite-Mark Evidence, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

Conceptualizing Aggression, Noah Weisbord

Faculty Publications

The special working group tasked by the International Criminal Court’s Assembly of States Parties to define the supreme international crime, the crime of aggression, has produced a breakthrough draft definition.

This paper analyzes the key concepts that make up the emerging definition of the crime of aggression by developing and applying a future-oriented methodology that brings together scenario planning and grounded theory. It proposes modifications and interpretations of the constituent concepts of the crime of aggression intended to make the definition sociologically relevant today and in the foreseeable future.

The Modern Problem-Solving Court Movement: Domination Of Discourse And Untold Stories Of Criminal Justice Reform, Mae Quinn

Journal Articles

There is a chasm between the rhetoric about and the reality of modern court reform movements. It is a deeply troubling divide. This Article, responding to the work of Professor Jane Spinak, is not concerned with innovations within the family court system. Rather, it examines modern criminal justice reforms.1 It focuses on the claims of the contemporary ―problem-solving court‖ movement—a movement that has resulted in the development of thousands of specialized criminal courts across the country over the last two decades.2

Intention, Torture, And The Concept Of State Crime, Aditi Bagchi

All Faculty Scholarship

Notwithstanding the universal prohibition against torture, and almost universal agreement that in order to qualify as torture, the act in question must be committed intentionally with an illicit purpose, the intentional element of torture remains ambiguous. I make the following claims about how we should interpret the intent requirement as applied to states. First, state intent should be understood objectively with reference to the apparent reasons for state action. The subjective motivation of particular state actors is not directly relevant. While we focus on subjective intent in the context of individual crime because of its relation to culpability and blameworthiness, …

Power, Protocol And Practicality: Communications From The District Court During An Appeal, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Time Out, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Case Interpretation, Shawn J. Bayern

Scholarly Publications

This Article develops an approach to constructing the meaning of prior court cases that is more helpful than formalistic, conventional distinctions between concepts like "holdings" and "dicta." Instead of trying to classify judicial announcements into fixed categories, courts should engage in a broader interpretive inquiry when confronting prior cases. Determining what a judicial opinion stands for requires determining the intent that motivated the opinion, as carefully understood in light of the factual and argumentative context that gave rise to it.

Under this view of precedent, binding common law arises in large part from principles explicated after considering facts. Viewing precedent …

Plaintiphobia In State Courts? An Empirical Study Of State Court Trials On Appeal, Theodore Eisenberg, Michael Heise

Cornell Law Faculty Publications

Prior federal civil appellate studies show that appeals courts overturn jury verdicts more than bench decisions and that defendants fare better than plaintiffs on appeal. Attitudinal and selection effect hypotheses may explain the appellate court tilt favoring defendants. This study presents the first statistical models of the appeals process for a comprehensive set of state court civil trials to test theories on appellate outcomes. Using data from 46 large counties on 8,038 trials and 549 concluded appeals, we find that appellate reversal rates for jury trials and defendant appeals exceed reversal rates for bench trials and plaintiff appeals. The reversal …

Foreward: The Most Confusing Branch, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Grounds For Challenging/Defending Tribunal’S Establishment And Jurisdiction What Are The Possible Legal Challenges Relating To The Establishment And Jurisdiction Of The Tribunal? How Can These Arguments Best Be Refuted?, Jacqueline C. Greene

War Crimes Memoranda

No abstract provided.