Law Commons^™

Less Reliable Preliminary Hearings And Plea Bargains In Criminal Cases In California: Discovery Before And After Proposition 115 , Laura Berend

American University Law Review

No abstract provided.

Panel Rejects Ninth Circuit Split, Carl W. Tobias

Law Faculty Publications

No abstract provided.

The Supreme Court 1997 Term -- Foreword: The Limits Of Socratic Deliberation, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Allowing Improper Argument Of Counsel To Be Raised For The First Time On Appeal As Fundamental Error: Are Florida Courts Throwing Out The Baby With The Bath Water?, Larry A. Klein

Florida State University Law Review

No abstract provided.

In Defense Of The Character Evidence Prohibition: Foundations Of The Rule Against Trial By Character, David P. Leonard

Indiana Law Journal

No abstract provided.

Abstracting The Record, Terry Crabtree

University of Arkansas at Little Rock Law Review

No abstract provided.

Of Communists And Anti-Abortion Protestors: The Consequences Of Falling Into The Theoretical Abyss, Christina E. Wells

Faculty Publications

Part I of this article briefly reviews the legal and social context of Dennis and Yates. Parts II and III similarly review Madsen and Schenck in order to show potential parallels to the earlier communist decisions. Part IV further examines both Madsen and Schenck, demonstrating that, from a doctrinal standpoint, they are far removed from the earlier communist cases. Finally, Part V explains how the Court in Madsen and Schenck actually contributed to misconceptions or manipulation of its opinions. Specifically, Part V examines the Madsen and Schenck Courts' approaches to three of the more difficult doctrinal issues facing them--prior restraint, …

Proposed Ninth Circuit Split: Response. Malthus And The Court Of Appeals: Another Former Clerk Looks At The Proposed Ninth Circuit Split, Aaron H. Caplan

Washington Law Review

This Article argues that current proposals to split the Ninth Circuit are unnecessary and would be detrimental to judges, law clerks, lawyers, and litigants. Larger circuits offer various benefits, many of them arising from the diversity of cases and judicial personalities on the bench. Splitting the Ninth Circuit would not bring the benefits proponents predict.

Proposed Ninth Circuit Split. The Icebox Cometh: A Former Clerk's View Of The Proposed Ninth Circuit Split, Jennifer E. Spreng

Washington Law Review

Most academic commentators oppose splitting the Ninth Circuit Court of Appeals. They argue that the court's size is a virtue and either deny that the court has size-related problems, such as workload, consistency, and reversal rate, or claim that a split would not address these problems. The U.S. Congress, however, is less sure. It has appointed the Commission on Structural Alternatives for the United States Courts and asked it to study a possible Ninth Circuit split. This Article provides an "insider's view," that of a former elbow clerk, and reveals that a split would significantly decrease the court's workload and …

Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler

Michigan Law Review

The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process," refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views. Bracketing this disagreement, however, …

The Supreme Court As An Enforcement Agency, Harold J. Krent

Washington and Lee Law Review

No abstract provided.

Competency To Stand Trial: An International Challenge, Ibpp Editor

International Bulletin of Political Psychology

This article describes some of the difficulties in developing an international standard for competency to stand trial.

Choosing Perspectives In Criminal Procedure, Ronald J. Bacigal

Law Faculty Publications

In this Article, Professor Bacigal examines the Supreme Court's use of various perspectives in examining the reasonableness of searches and seizures. Although the Supreme Court purports to rely on a consistent method of constitutional analysis when rendering decisions on Fourth Amendment issues, the case law in this area indicates that the Court is influenced sometimes by the citizen's perspective, sometimes by the police officers' perspective, and sometimes by the perspective of the hypothesized reasonable person. After identifying the role of perspectives in a number of seminal Court decisions, Professor Bacigal discusses the benefits and limitations of the Court's reliance on …

The Federal Appellate Study At Midpoint, Carl W. Tobias

Law Faculty Publications

No abstract provided.

Judicial Coup D'État: Mandamus, Quo Warranto And The Original Jurisdiction Of The Supreme Court Of Arkansas, Logan Scott Stafford

University of Arkansas at Little Rock Law Review

No abstract provided.

L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette

Osgoode Hall Law Journal

The recent decision of the Supreme Court of Canada in the Reference re: Remuneration of Judges in the Provincial Court of Prince Edward Island has given judicial independence a surprising interpretation. A majority of the Court stated that this principle requires legislative bodies to establish independent procedures for setting judicial salaries. The Court maintained that the basis of judicial independence is to be found in the preamble of the Constitution Act, 1867, rather than the express provisions of the constitutional text. The authors argue in Part I of this article that the Court transformed fundamentally and without reason traditional conceptions …

Federal Practice, Richard Mills

Mercer Law Review

The formula for success in trial practice is simple: Be prepared, be decent, and be on time.

There are ninety-four district courts in the United States. Twenty-four states have two or more districts; for example, Illinois and Georgia have three. Twenty-six states, plus the District of Columbia, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands, are single districts. And in all of those ninety-four districts over the last thirty years, the civil cases have tripled! In my district we have quadrupled our caseload in that same time frame. In the last five years alone, we have had …

Profits In Cyberspace: Should Newspaper And Magazine Publishers Pay Freelance Writers For Digital Content?, Rod Dixon Esq.

Michigan Telecommunications & Technology Law Review

It is remarkable how fast recent trends have driven an increasing number of publishers of magazines, newspapers, and other similar works to port the print version of their works to digital and electronic format in the form of online computer databases and multimedia CDROM technologies. Online computer databases and CD-ROM media can be exceptionally profitable ventures for publishers who convert a preexisting print work into a digital product. However, publishers' profits from digital media may be impaired if there is a question as to whether the publisher has satisfactorily secured the copyright to the material making up the digital media. …

Did The Civil Justice Reform Act Of 1990 Actually Expire?, Carl Tobias

University of Michigan Journal of Law Reform

The Civil Justice Reform Act of 1990 (CJRA) was intended to reduce the expense and delay associated with federal district court litigation by requiring courts to study and adopt new procedures. The CJRA's gains, however, may be erased by the uncertainty surrounding its sunset provision. Professor Tobias argues that Congress or the Judicial Conference should resolve the uncertainty by proclaiming that the CJRA has expired, thus forcing districts to abrogate procedures inconsistent with the Federal Rules of Civil Procedure.

Amchem Products, Inc. V. Windsor: The Supreme Court Defines The Standard For Settlement Class Action Certification, Jimmy White

Mercer Law Review

In Amchem Products, Inc. v. Windsor, a case stemming from the asbestos litigation crisis of the 1970s and 1980s, the United States Supreme Court addressed the certification criteria for settlement-only class actions under rule 23 of the Federal Rules of Civil Procedure ("Rule 23").

An Outsider's View Of Common Law Evidence, Roger C. Park

Michigan Law Review

same line by a Newton. There have been improvements since Bentham's jeremiad. But Anglo-American evidence law is still puzzling. It rejects the common-sense principle of free proof in favor of a grotesque jumble of technicalities. It has the breathtaking aspiration of regulating inference by rule, causing it to exalt the foresight of remote rulemakers over the wisdom of on-the-spot adjudicators. It departs from tried-and-true practices of rational inquiry, as when it prohibits courts from using categories of evidence that are freely used both in everyday life and in the highest affairs of state. Sometimes it seems to fear dim light …

Picking Federal Judges: A Mysterious Alchemy, Michael D. Schattman

Michigan Law Review

I have twice been nominated to the federal bench by President Clinton. The first nomination, in December 1995, lapsed at the end of the 104th Congress. I was renominated in March 1997. I have never had a hearing and never had a letter from the Senate Judiciary Committee requesting additional information. In 1995 and again in 1997 the White House precleared my nomination with my two home-state Republican senators. Originally, I was nominated before the scheduled retirement date of the judge I was named to replace, which gives knowledgeable readers an idea of the lack of controversy surrounding my appointment. …

Birds Of A Feather: Alliances And Influences On The Lamer Court 1990-1997, Peter Mccormick

Osgoode Hall Law Journal

The Supreme Court does not always speak with a single voice; for many decisions, there are judges who register disagreement with the majority's legal reasoning or even with the outcome. Are there identifiable fault lines dividing a persisting "majority" and "minority?" Are there one or more "swing vote" judges who allow the minority some share of the decisions of the Court? And, given that the coalitions are shifting rather than rigid, which pairings of judges most frequently (or most seldom) hold together through these shifts? This paper examines the divided panel decisions of the first seven years of the Lamer …

Reputational Review I: Expertise, Bias And Delay, Robert E. Hawkins

Dalhousie Law Journal

Expertise, bias and delay arguments are shifting the focus of judicial review from the legality of administrative decisions to the reputation of administrative decision- makers. These grounds measure the skill, objectivity and efficiency characteristics that define administrators' reputations. They make it possible for courts to consider these reputations, even if only by way of unarticulated judicial notice, when deciding judicial review applications. After setting out the theory of expertise, bias and delay implicit in recent Supreme Court of Canada decisions, the author concludes that courts must use less impressionistic measures in judging these concepts, lawyers must present more concrete reputational …

Civility A Speech Delivered By Associate Justice Clarence Thomas To Students At Washington And Lee University School Of Law Lexington, Virginia Tuesday, March 10, 1998, Clarence Thomas

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Where We Stand: An Analysis Of America's Family Law Adjudicatory Systems And The Mandate To Establish Unified Family Courts, Barbara A. Babb

All Faculty Scholarship

The volume and scope of family law cases in contemporary American society, as well as their unending nature both individually and systemically, exacerbate the difficulty of their resolution. To address this crisis, the American Bar Association and others have recommended court reform, specifically, the establishment of unified family courts in all jurisdictions. A unified family court is a single forum within which to adjudicate the full range of family law issues, based on the notion that court effectiveness and efficiency increase when the court resolves a family's legal problems in as few appearances as possible. The model is based on …

Workers' Compensation Reform: 180 Days In Massachusetts, Dean Hashimoto, Jane Freedman, James Campbell, Donna Ward

Dean M. Hashimoto

No abstract provided.

Oregon V. Elstad Revisited: Urging State Court Judges To Depart From The U.S. Supreme Court's Narrowing Of Miranda, Claudia R. Barbieri

University of the District of Columbia Law Review

Imagine an average young man on the threshold of adulthood, living in a medium-sized town in a middle-class family. Still in his early years, he gets into a little local trouble and one day finds the police at his door. They ask him questions about a burglary. He panics, and as he racks his brain for some scrap of legal knowledge that might get him out of this frightening situation, he admits that he knows about the crime, stating he was there. The police become more persistent, telling him they know about his involvement, asking him if he wants to …

Balancing The Scales: The 1996 Telecommunications Act And Eleventh Amendment Immunity, Cynthia L. Bauerly

Federal Communications Law Journal

The Telecommunications Act of 1996 explicitly created a role for federal courts in the interconnection process. However, parties' ability to seek federal review of interconnection agreements is no longer as straightforward as the language of the Act implies. The Supreme Court's unnecessarily novel and narrow reading of Eleventh Amendment immunity in Seminole Tribe v. Florida renders unenforceable the federal review provisions of the Act against state regulatory commissions. While some interconnection agreements may find their way into federal court, for example, where a party seeking to interconnect sues an incumbent provider instead of the state commission, enforcement of a federal …

Raines V. Byrd: A Death Knell For The Congressional Suit?, Adam L. Blank

Mercer Law Review

In Raines v. Byrd, the Supreme Court of the United States denied standing to six members of Congress who challenged the constitutionality of the Line Item Veto Act. In its first consideration of congressional standing in nearly two decades, the Court held that a perceived diminution in institutional voting strength did not create a sufficiently particularized injury in fact to satisfy the Article III "case or controversy" requirement.