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2003

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Articles 1 - 30 of 251

Full-Text Articles in Law

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman Dec 2003

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the ...


Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner Dec 2003

Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner

All Faculty Scholarship

Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the ...


Constitutional Empiricism: Quasi-Neutral Principles And Constitutional Truths, Timothy Zick Dec 2003

Constitutional Empiricism: Quasi-Neutral Principles And Constitutional Truths, Timothy Zick

Faculty Publications

The absence of neutrality and objectivity in constitutional decision-making has vexed scholars and courts. In this Article, the author describes and analyzes "constitutional empiricism," a trend instituted by the Rehnquist Court, which is characterized by judicial reliance in constitutional review on empirical and scientific conventions and processes. Courts have generally relied upon traditional sources, such as text and history, to interpret consititutional powers and rights. In its search for neutrality and objectivity, however, the Court has recently turned not only to social science and other data, which are fast becoming common sources of interpretation, but also to the precepts and ...


Their Preservation Is Our Sacred Trust—Judicially Mandated Free Exercise Exemptions To Historic Preservation Ordinances Under Employment Division V Smith, Catherine Maxson Dec 2003

Their Preservation Is Our Sacred Trust—Judicially Mandated Free Exercise Exemptions To Historic Preservation Ordinances Under Employment Division V Smith, Catherine Maxson

Boston College Law Review

Religious property owners have both successfully and unsuccessfully challenged historic preservation ordinances as burdens on the free exercise of religion. Courts considering this conflict typically rely on Employment Division v. Smith, in which the United States Supreme Court held that neutral laws of general applicability that incidentally burden religion are not subject to strict scrutiny. Ambiguities in Smith, however, have left courts free to use their own interpretive discretion and have made attempts to apply free exercise precedent particularly difficult in the historic preservation context. This Note reviews the historic preservation movement and free exercise jurisprudence, then analyzes cases that ...


Retaining Judicial Authority: A Preliminary Inquiry On The Dominion Of Judges, Larry Catá Backer Dec 2003

Retaining Judicial Authority: A Preliminary Inquiry On The Dominion Of Judges, Larry Catá Backer

William & Mary Bill of Rights Journal

Why do the people and institutions of democratic states, and in particular those of the United States, obey judges ? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing on the ...


Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr Nov 2003

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The ...


For And Against Marriage: A Revision., Anita Bernstein Nov 2003

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.


Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson Oct 2003

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants ...


Us V. Pimentel, 346 F. 3d 285 - Court Of Appeals, 2nd Circuit 2003, Roger J. Miner '56 Oct 2003

Us V. Pimentel, 346 F. 3d 285 - Court Of Appeals, 2nd Circuit 2003, Roger J. Miner '56

Circuit Court Opinions

These appeals arise from the January 9, 1995 gang-related murder of Galiat Santiago. Instead of being tried in New York State Supreme Court for violating the New York Penal Law, defendants-appellants Joanna Pimentel and George Viruet (collectively, the "Defendants") were tried by a jury and convicted in the United States District Court for the Eastern District of New York (Johnson, J.). The Defendants were charged with violations of various federal laws, including the Violent Crimes in Aid of Racketeering ("VCAR") statute, 18 U.S.C. § 1959. VCAR provides for the federal prosecution of violent crime "when those allegedly responsible participated ...


Symposium Editor's Note, Barbara A. Babb Oct 2003

Symposium Editor's Note, Barbara A. Babb

All Faculty Scholarship

No abstract provided.


Delinquency Jurisdiction In A Unified Family Court: Balancing Intervention, Prevention, And Adjudication, Gloria Danziger Oct 2003

Delinquency Jurisdiction In A Unified Family Court: Balancing Intervention, Prevention, And Adjudication, Gloria Danziger

All Faculty Scholarship

This article will examine the demographics of the current juvenile delinquency caseloads and will argue that, despite trends toward greater punitive measures-including placement of juveniles in adult courts for certain offenses, the concept of a therapeutic "family-centered court," which inspired Jane Addams and her colleagues, remains the most promising approach to delinquency, articulated most notably by the proponents of the unified family court concept. The article will consider and address objections and concerns raised with respect to this approach, looking at ways in which several states have incorporated juvenile delinquency into a family-centered unified family court.


Assessing Judgeship Needs In The Federal Courts Of Appeals: Policy Choices And Process Concerns, Arthur D. Hellman Oct 2003

Assessing Judgeship Needs In The Federal Courts Of Appeals: Policy Choices And Process Concerns, Arthur D. Hellman

The Journal of Appellate Practice and Process

No abstract provided.


Appellate Mediation In Pennsylvania: Looking Back At The History And Forward To The Future, Sandra Schultz Newman, Scott E. Friedman Oct 2003

Appellate Mediation In Pennsylvania: Looking Back At The History And Forward To The Future, Sandra Schultz Newman, Scott E. Friedman

The Journal of Appellate Practice and Process

No abstract provided.


The Oral Judgment Practice In The Canadian Appellate Courts, J. E. Côté Oct 2003

The Oral Judgment Practice In The Canadian Appellate Courts, J. E. Côté

The Journal of Appellate Practice and Process

No abstract provided.


No-Citation Rules Under Siege: A Battlefield Report And Analysis, Stephen R. Barnett Oct 2003

No-Citation Rules Under Siege: A Battlefield Report And Analysis, Stephen R. Barnett

The Journal of Appellate Practice and Process

No abstract provided.


Fundamentals Of Preparing A United States Supreme Court Amicus Brief, Dan Schweitzer Oct 2003

Fundamentals Of Preparing A United States Supreme Court Amicus Brief, Dan Schweitzer

The Journal of Appellate Practice and Process

No abstract provided.


Words To The Wise: David C. Frederick's Supreme Court And Appellate Advocacy, Mark R. Kravitz Oct 2003

Words To The Wise: David C. Frederick's Supreme Court And Appellate Advocacy, Mark R. Kravitz

The Journal of Appellate Practice and Process

No abstract provided.


Federal Court Authority To Regulate Lawyers: A Practice In Search Of A Theory Of A, Fred C. Zacharias, Bruce A. Green Oct 2003

Federal Court Authority To Regulate Lawyers: A Practice In Search Of A Theory Of A, Fred C. Zacharias, Bruce A. Green

Vanderbilt Law Review

Federal courts regulate lawyers, including federal prosecutors, by enforcing various constitutional, statutory, and other legal constraints. Federal courts also adopt and enforce their own disciplinary rules pursuant to rule-making authority delegated by Congress. To what extent, however, do federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors? Although lower federal courts have long exercised power both to define and to sanction professional misconduct, the United States Supreme Court has never clarified the source and scope of this authority.

This issue is important for two reasons. First, most federal ...


Reingeniería De La Corte Suprema De La Nación - Una Guía De Trabajo Y Propuestas Para Mejorar Los Aspectos Organizativos, Funcionales Y De Gobierno Del Alto Tribunal, Horacio M. Lynch, Luciano Hurtado, María Clara Pujol, Et Al Sep 2003

Reingeniería De La Corte Suprema De La Nación - Una Guía De Trabajo Y Propuestas Para Mejorar Los Aspectos Organizativos, Funcionales Y De Gobierno Del Alto Tribunal, Horacio M. Lynch, Luciano Hurtado, María Clara Pujol, Et Al

Horacio M. LYNCH

Esta investigación continúa y actualiza las propuestas e investigaciones de FORES sobre la Corte Suprema, originadas en el diagnóstico elaborado en las Conferencias sobre la Reforma Judicial de 1977 y 1978, y en los posteriores estudios “REFORMAS EN LA CORTE SUPREMA”, 1987 y “DIAGNÓSTICO DE LA JUSTICIA ARGENTINA”, 1988, dirigidas por el Dr. Horacio M. Lynch. Complementa el reciente trabajo de éste “CAMBIOS EN LA CORTE SUPREMA - ENFOQUES DEL SIGLO XXI”, (LL 30Jul03 / V. ANEXO), y con otro anterior “EL RECURSO EXTRAORDINARIO POR ARBITRARIEDAD - UN DILEMA PARA LA NUEVA CORTE SUPREMA”, de 1990 (LL 1990-D- 719). Está concentrado en los ...


Section 1446(B) Federal Removal Jurisdiction And The Thirty-Day Clock: Should A Motion To Amend Trigger The Time Bomb?, Briant S. Platt Sep 2003

Section 1446(B) Federal Removal Jurisdiction And The Thirty-Day Clock: Should A Motion To Amend Trigger The Time Bomb?, Briant S. Platt

Nevada Law Journal

No abstract provided.


In The Stream Of The Commerce Clause: Revisiting Asahi In The Wake Of Lopez And Morrison, Andrew Kurvers Spalding Sep 2003

In The Stream Of The Commerce Clause: Revisiting Asahi In The Wake Of Lopez And Morrison, Andrew Kurvers Spalding

Nevada Law Journal

No abstract provided.


Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan Sep 2003

Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan

Cornell Law Faculty Publications

No abstract provided.


Compounding The Countermajoritarian Difficulty Through "Plaintiff's Diplomacy": Can The International Criminal Court Provide A Solution?, John B. Fowles Sep 2003

Compounding The Countermajoritarian Difficulty Through "Plaintiff's Diplomacy": Can The International Criminal Court Provide A Solution?, John B. Fowles

BYU Law Review

No abstract provided.


No Free Lunch: How Settlement Can Reduce The Legal System's Ability To Induce Efficient Behavior, Abraham Lee Wickelgren Aug 2003

No Free Lunch: How Settlement Can Reduce The Legal System's Ability To Induce Efficient Behavior, Abraham Lee Wickelgren

ExpressO

While there is widespread agreement that it is better for cases to settle than go to trial, the arguments in favor of settlement have typically overlooked how settlement affects one of the most important functions of the legal system: influencing the behavior that gives rise to lawsuits. This essay argues that, in some cases, settlement can impair the ability of the legal system to deter harmful behavior without chilling desirable behavior. Where it exists, this effect is a fundamental property of settlement in that there is no way to change other legal rules to eliminate it. Because settlements also have ...


Cuestiones Procesales En La Ley De Defensa De La Competencia, Gabriel Martinez Medrano Aug 2003

Cuestiones Procesales En La Ley De Defensa De La Competencia, Gabriel Martinez Medrano

Gabriel Martinez Medrano

No abstract provided.


Licencias "Atadas" Sobre Derechos Intelectuales Y Defensa De La Competencia., Gabriel Martinez Medrano Aug 2003

Licencias "Atadas" Sobre Derechos Intelectuales Y Defensa De La Competencia., Gabriel Martinez Medrano

Gabriel Martinez Medrano

No abstract provided.


Opening Statement -- Making It Stick, Ronald L. Carlson, Michael S. Carlson Aug 2003

Opening Statement -- Making It Stick, Ronald L. Carlson, Michael S. Carlson

Popular Media

Every lawyer who sits down to plan her opening remarks for a coming trial has the same question: How far can I go in arguing my case during the opening statement? Can I mention the law? What about drawing a diagram of the accident on a blackboard? Will my opponent be able to stop me from displaying a couple of my dramatic exhibits to the jury?

Making one's theory of the case "stick" from the very start of the trial depends mightly on how far the lawyer can go in opening statement. Where the defense is primarily a legal ...


Legislating Chevron, Elizabeth Garrett Aug 2003

Legislating Chevron, Elizabeth Garrett

Michigan Law Review

One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, lnc., is routinely referred to as the "counter-Marbury." The reference suggests that Chevron's command to courts to defer to certain reasonable agency interpretations of statutes is superficially an uneasy fit with the declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language ...


Comparative Constitutionalism In A New Key, Paul W. Kahn Aug 2003

Comparative Constitutionalism In A New Key, Paul W. Kahn

Michigan Law Review

Law is a symbolic system that structures the political imagination. The "rule of law" is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is a nation ...


The Irrepressible Myth Of Marbury, Michael Stokes Paulsen Aug 2003

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen

Michigan Law Review

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As befits the ...