Law Commons^™

Law As Largess: Shifting Paradigms Of Law For The Poor, Deborah M. Weissman

Deborah M. Weissman

The article examines the tension between the principles of the Rule of Law and cultural norms of self-sufficiency. It begins by reviewing the principles of the Rule of Law as an ideal, the pursuit of which has led to historical efforts to meet the legal needs of the poor. It then examines recent legal events including federal statutory changes, three Supreme Court cases, and a federal circuit court case which have limited legal resources for those who cannot pay. The article then examines these developments in the context of a sea-change in the political environment of the nation, coinciding with …

The War On Terrorism And The Constitution, Michael I. Meyerson

All Faculty Scholarship

Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.

After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn

Dalhousie Law Journal

In a 1998 decision, Pushpanathan v Canada, the Supreme Court of Canada synthesized and revised the previous jurisprudence on "pragmatic and functional analysis" - the approach used since the late 1980's to determine the appropriate standard of deference in substantive review of administrative decision making. The next year, in Baker v. Canada, the Court expanded the reach of the pragmatic and functional analysis by applying it to the exercise of administrative discretion. This paper examines approximately 275 lower court decisions to determine how courts across Canada are responding to and implementing the doctrinal change initiated by the Supreme Court. Patterns …

Amending Authors And Constitutional Discourse, Barbara Darby

Dalhousie Law Journal

The author surveys various theories related to the concept of constitutional amendment, reviewing the importance of the notion of authorship to the amending process, and the related theories about constitutional legitimacy and judicial activism. In seeking an alternative conceptualization of authorship that is applicable to constitutional amendment, she reviews Michel Foucault's essay on authorship, and specifically his notion of the transdiscursive author who originates a "return" to an original text, which she presents as a useful context in which to read the constitutional amendment process. Constitutional discourse, using Foucault's approach to discourse, occupies a significant cultural and social position. She …

Courts Proceedings, Incompetency And Dependency: Authorize The Photographing Of Children Who Have Absconded And Subsequently Returned To The Custody Of The Department Of Juvenile Justice, Barbara S. Murphy

Georgia State University Law Review

The Act authorizes the photographing of every child who has absconded and subsequently returned to the custody of the Department of Juvenile Justice.

Courts Demand Of Jury Panels From Which To Select Jury In Civil Actions In The State Courts And The Superior Courts: Raise The Minimum Damages Claim Amount Whereby Parties May Demand A Jury Of Twelve, Mark D. Meliski

Georgia State University Law Review

The Act increases the minimum claim for damages to twenty-five thousand dollars in order to have a jury of twelve members in civil actions in state court.

Unmasking The Presumption In Favor Of Preemption, Mary J. Davis

South Carolina Law Review

No abstract provided.

Disconnects Between Water And Land Use Resource Management [Abstract], Dan Tarlock, Lora A. Lucero

Allocating and Managing Water for a Sustainable Future: Lessons from Around the World (Summer Conference, June 11-14)

2 pages.

The Law Of Options, Keith Evans

Dalhousie Law Journal

Little attention is devoted to the law of options in major Canadian texts on contract law or in periodical literature. One might, therefore, assume that the law in this area is well settled and that few major cases come before the courts. However, a review of appellate decisions in Canada indicates significant judicial interest in the topic which would challenge those assumptions. In fact, appellate courts in various common law jurisdictions continue to struggle with many doctrinal issues related to this specialized type of contract. This article provides a comprehensive review of the law of options in Canada, and identifies …

Juries, Justice And Multiculturalism, Nancy S. Marder

All Faculty Scholarship

No abstract provided.

Juries, Justice And Multiculturalism, Nancy S. Marder

Nancy S. Marder

No abstract provided.

A New Look At Sexual Harassment Under The Fair Housing Act: The Forgotten Role Of §3604(C), Robert G. Schwemm, Rigel C. Oliveri

Law Faculty Scholarly Articles

Sexual harassment in housing is a significant national problem. Although less visible than the comparable problem in employment, sexual harassment in housing may be as prevalent and probably more devastating to its victims.

Nevertheless, relatively little attention has been paid to this issue or to the law that should govern it. Indeed, the law of sexual harassment in housing developed well after and in virtual lock-step with the law of sexual harassment in employment. Thus, courts have simply interpreted the Fair Housing Act (FHA) to prohibit sexual harassment to the same degree—and only to the same degree—as it is prohibited …

Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Special Division Agonistes, John Q. Barrett

Faculty Publications

When the independent counsel law sank, the casualties included a special "division" of the United States Court of Appeals for the District of Columbia Circuit. This division was the special court that Congress had created "for the purpose of appointing independent counsels." The now-expired 1994 independent counsel statute had, like its three predecessors, directed the Chief Justice of the United States to appoint three judges from the Supreme Court and/or the federal Courts of Appeals to serve on the special court for two-year terms. This independent counsel court, which was located for administrative purposes in the United States Court of …

Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John Lande

John Lande

This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This Article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining interests of key stakeholder groups including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their interests. …

Supreme Court Selection As War, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai

Faculty Scholarship

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …

Dissenting Opinions: In The Georgia Supreme Court, R. Perry Sentell Jr.

Scholarly Works

Under our system of justice, each jurisdiction necessarily evolves its own distinct tradition of judicial dissent. That evolution's impetus, history, pattern, and results all converge in an informative profile--affording yet another means of studying a state's highest appellate court. A dissent profile of the Georgia Supreme Court thus offers an additional evaluative view of the state's most important judicial cathedral.

Let The Jury Decide: The Gap Between What Judges And Reasonable People Believe Is Sexually Harassing, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Publications

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Conjectures And Exhumations: Citations Of History, Philosophy And Sociology Of Science In Us Federal Courts, Gary Edmond, David Mercer

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article examines the circumstances in which a version of Sir Karl Popper's philosophy of science became US law. Among historians, philosophers and sociologists of science, as well as legal commentators, the US Supreme Court's Daubert v. Merrell Dow Pharmaceuticals, .Inc. (1993) decision has received considerable attention. The case is significant because America's most senior court produced a definition of science (for legal purposes). This definition was authorized by the symbolic exhumation, celebration and appropriation of key elements of the philosophy of science developed decades earlier by Popper. Significantly, it was not just Popper's philosophy that was exhumed and resurrected …

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

All Faculty Scholarship

The lead counsel auction has attracted increasing attention. Auction advocates argue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is …

Earning Deference: Reflections On The Merger Of Environmental And Land-Use Law, Michael Allan Wolf

UF Law Faculty Publications

The bedrock notion that courts should, in the overwhelming majority of cases, defer to lawmakers is currently under attack in the nation's courts, commentary and classrooms. Leading the way are several United States Supreme Court Justices who, in cases involving the Commerce Clause, the Takings Clause and Section Five of the Fourteenth Amendment, are much more willing than their immediate predecessors to second-guess the motives and tactics of elected and appointed officials at all levels of government. Given this new juris-political reality, it is more important than ever that local government officials--who are often (though, certainly, not always justifiably) viewed …

The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner

Faculty Articles

No abstract provided.

Default Rules In Sales And The Myth Of Contracting Out, James J. White

Articles

In this article, I trace the dispute in the courts and before the ALI and NCCUSL over the proper contract formation and interpretation default rules. In Part II, I consider the Gateway litigation. In Part III, I deal with UCITA and the revision to Article 2. In Part IV, I consider the merits of the competing default rules.

Civil Litigation From Litigants' Perspectives: What We Know And What We Don't Know About The Litigation Experience Of Individual Litigants, Tamara Relis

Scholarly Works

This study of the entire phenomenon of civil litigation commenced with the sole aim of ascertaining the extant gaps in the available knowledge about litigation from the perspectives of those who are by far affected most by it: the litigants. What does litigation mean for those who are directly embroiled and whose lives may consequently be radically transformed? Serious lacunas exist. However, extensive readings worldwide throughout the research process result in a stark elucidation of an overlooked, yet crucially important and somewhat egregious state of affairs, making surprisingly clear just how pernicious litigation is for the average 'nonrepeat player'.

The History Of The Per Curiam Opinion: Consensus And Individual Expression On The Supreme Court, Laura Ray

Laura K. Ray

No abstract provided.