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Musical Courts: Plaintiff Picks A Court But Can Defendant Trump The Choice? An Analysis Of Breuer V. Jim's Concrete Of Brevard, Inc., Barbara J. Fick
Musical Courts: Plaintiff Picks A Court But Can Defendant Trump The Choice? An Analysis Of Breuer V. Jim's Concrete Of Brevard, Inc., Barbara J. Fick
Journal Articles
This article previews the Supreme Court case Brewer v. Jim's Concrete of Brevard, 538 U.S. 691 (2003). The author expected the Court to address the issue of whether the language of the Fair Labor Standards Act providing that "an action . . . may be maintained in any federal or state court" constitutes an express provision prohibiting removal to federal court when the plaintiff has chosen to maintain its lawsuit in state court.
Stare Decisis And Due Process, Amy Coney Barrett
Stare Decisis And Due Process, Amy Coney Barrett
Journal Articles
In this Article, I argue that the preclusive effect of precedent raises due-process concerns, and, on occasion, slides into unconstitutionality. The Due Process Clause requires that a court give a person notice and an opportunity for a hearing before depriving her of life, liberty or property. Because of this requirement, courts have held in the context of issue preclusion that as a general rule, judicial determinations can bind only parties. The preclusion literature asserts that this parties only requirement does not apply to stare decisis because stare decisis, in contrast to issue preclusion, is a flexible doctrine. Yet stare decisis …
Mixed Up About Mixed Motive: What Will Trigger A "Mixed Motive" Analysis In Title Vii Cases? An Analysis Of Desert Palace, Inc. V. Costa, Barbara J. Fick
Mixed Up About Mixed Motive: What Will Trigger A "Mixed Motive" Analysis In Title Vii Cases? An Analysis Of Desert Palace, Inc. V. Costa, Barbara J. Fick
Journal Articles
This article previews the Supreme Court case Desert Palace, Inc. v. Costa, 539 U.S. 90, 2003. The author expected the Court to clarify and define the circumstances in which it is appropriate to use the "mixed-motive model" to prove a violation of Title VII under the disparate treatment theory.