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2003

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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 ...


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

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.


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 ...


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. ยง 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.


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.


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 ...


Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain Jul 2003

Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.


Legal Indeterminacy And Institutional Design, Michael C. Dorf Jun 2003

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.


The Legal And Political Future Of Physician-Assisted Suicide, Larry Palmer May 2003

The Legal And Political Future Of Physician-Assisted Suicide, Larry Palmer

Cornell Law Faculty Publications

No abstract provided.


First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben Apr 2003

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First ...


Congress And The Making Of The Second Rehnquist Court, Neal Devins Apr 2003

Congress And The Making Of The Second Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.


The Choice-Of-Law Revolution In The United States: Notes On Rereading Von Mehren, Gary J. Simson Apr 2003

The Choice-Of-Law Revolution In The United States: Notes On Rereading Von Mehren, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.


Virginia's Capital Jurors, Stephen P. Garvey, Paul Marcus Apr 2003

Virginia's Capital Jurors, Stephen P. Garvey, Paul Marcus

Cornell Law Faculty Publications

Next to Texas, no state has executed more capital defendants than Virginia. Moreover, the likelihood of a death sentence actually being carried out is greater in Virginia than it is elsewhere, while the length of time between the imposition of a death sentence and its actual execution is shorter. Virginia has thus earned a reputation among members of the defense bar as being among the worst of the death penalty states. Yet insofar as these facts about Virginia's death penalty relate primarily to the behavior of state and federal appellate courts, they suggest that what makes Virginia's death ...


Lay Participation In Legal Decision Making: Introduction To Law & Policy Special Issue, Valerie P. Hans Apr 2003

Lay Participation In Legal Decision Making: Introduction To Law & Policy Special Issue, Valerie P. Hans

Cornell Law Faculty Publications

United States scholarship on lay participation revolves around one predominant form of lay participation, the jury (Hans & Vidmar forthcoming 2004). However, in the legal systems of many countries, laypeople participate as decision makers in other ways. Laypersons serve as judges (Provine 1986), magistrates (Diamond 1993), and private prosecutors (Perez Gil 2003). Lay and law-trained judges may also decide cases together in mixed tribunals (Kutnjak Ivkovi6 2003; Machura 2003; Vidmar 2002). Although diverse in structure, these methods share with the jury a set of animating ideas about lay involvement in legal decision making.

Many of these ideas appear to be quite compelling. But despite an extensive body of scholarship on the functioning of the jury system, there is limited scholarly work on how alternative methods of using laypersons in legal decision making operate in practice. There is even less on the political and social impact of lay participation. Whether diverse ...


Rethinking Judicial Elections, Charles G. Geyh Apr 2003

Rethinking Judicial Elections, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.


Jailhouse Informants, Robert M. Bloom Apr 2003

Jailhouse Informants, Robert M. Bloom

Boston College Law School Faculty Papers

No abstract provided.


Ub Viewpoint โ€“ Creation Of A Caring Justice System, Barbara A. Babb Feb 2003

Ub Viewpoint โ€“ Creation Of A Caring Justice System, Barbara A. Babb

All Faculty Scholarship

No abstract provided.


Introduction To The Jury At A Crossroad: The American Experience (Symposium Editor), Nancy S. Marder Feb 2003

Introduction To The Jury At A Crossroad: The American Experience (Symposium Editor), Nancy S. Marder

All Faculty Scholarship

No abstract provided.


Strict Criminal Liability Limiting The State's Power To Condemn, Andrew Verstein Jan 2003

Strict Criminal Liability Limiting The State's Power To Condemn, Andrew Verstein

Lecturer and Other Affiliate Scholarship Series

H. L. A. Hart argues that strict criminal liability often undermines the moral condemnation associated with punishment and therefore its capacity for deterrence. Hart explains that insofar as legal punishment expresses the "odium, if not the hostility" of a community towards those who break its laws strict liability forces us to either condemn those who are not deserving of condemnation or to negate the moral condemnation of the law in general. One choice is immoral and the other reduces the effectiveness of a significant deterrent and is therefore counterproductive. Either way, the consequences of strict liability are undesirable. In this ...


Quirin Revisited, Carl W. Tobias Jan 2003

Quirin Revisited, Carl W. Tobias

Law Faculty Publications

Six decades ago, the U.S. Supreme Court decided Ex parte Quirin, in which the Justices determined that President Franklin Delano Roosevelt possessed the requisite constitutional authority to institute and use a military commission.

On November 13, 2001, President George W. Bush promulgated an Executive Order (Bush Order) that authorized the establishment and application of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. The Bush administration substantially premised that the Order and jurisdiction-stripping proviso on Ex parte Quirin. It ...


Contractual Choice Of Law And The Prudential Foundations Of Appellate Review, David Frisch Jan 2003

Contractual Choice Of Law And The Prudential Foundations Of Appellate Review, David Frisch

Law Faculty Publications

What are the advantages and disadvantages of appellate review of trial court rulings on issues of foreign law? What exactly does judicial review of unsettled questions of foreign law accomplish? What is its price? These questions are of considerable theoretical interest and immense practical importance. Their resolution calls for inquiries into the allocation of judicial authority and in its production of outcomes in the real world. The discussion proceeds first by briefly describing in Part II some of the causes and effects of the steadily increasing caseloads in appellate courts. After demonstrating that these caseloads may soon become unmanageable, Part ...


Admissibility As Cause And Effect: Considering Affirmative Rights Under The Confrontation Clause, John G. Douglass Jan 2003

Admissibility As Cause And Effect: Considering Affirmative Rights Under The Confrontation Clause, John G. Douglass

Law Faculty Publications

In this essay, I first examine some of the strategic choices spawned by the Supreme Court's "microscopic" focus on reliability in confrontation-hearsay cases. Rather than promoting the value at the core of the Confrontation Clause-the adversarial testing of prosecution evidence-the Court's approach leads to choices that ignore that value. While the Court scrutinizes hearsay under the microscope of reliability, it leaves the parties free to ignore and even to avoid available opportunities for effective confrontation of the hearsay declarant. At the same time, the Court's constitutional definition of reliability-which it equates with "firmly rooted" hearsay exceptions -has ...


Justice Byron White And The Importance Of Process, Carl W. Tobias Jan 2003

Justice Byron White And The Importance Of Process, Carl W. Tobias

Law Faculty Publications

Justice Byron White exhibited acute sensitivity to process during his exceptional career on the Supreme Court. This essay affords several illustrations of that characteristic. One was his perceptive account of the Court's responsibility for amending the rules which mainly govern federal district court practice. The second was careful stewardship of a federal appellate court study authorized by Congress after the jurist had resigned. Another was his persistent dissents from denials of petitions for Supreme Court review. These examples relate to the three levels in the federal judicial hierarchy, and demonstrate Justice White's abiding concern for each constituent and ...


From A Cattle Ranch To The Supreme Court, Carl W. Tobias Jan 2003

From A Cattle Ranch To The Supreme Court, Carl W. Tobias

Law Faculty Publications

Review of Sandra Day O'Connor, Lazy B: Growing Up On A Cattle Ranch In The American Southwest (2002).


Sixth Circuit Federal Judicial Selection, Carl W. Tobias Jan 2003

Sixth Circuit Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

Many of the 179 active federal appeals court judgeships authorized by Congress have remained vacant for protracted times. Over the last dozen years, the appellate system has experienced numerous openings, which have generally comprised ten percent of those seats. Particular tribunals' situations have been worse. At various times since 1996, the United States Courts of Appeals for the Second, Fourth, and Ninth Circuits operated without a third of their judges. However, the most egregious and recent illustration is the United States Court of Appeals for the Sixth Circuit. Almost half of that court's positions are now empty, while a ...


Danger At The Edge Of Chaos: Predicting Violent Behavior In A Post-Daubert World, Erica Beecher-Monas, Edgar Garcia-Ril Jan 2003

Danger At The Edge Of Chaos: Predicting Violent Behavior In A Post-Daubert World, Erica Beecher-Monas, Edgar Garcia-Ril

Law Faculty Research Publications

No abstract provided.