Law Commons^™

Ghana’S Jury System On Trial, Dennis D. Adjei

Duke Law Master of Judicial Studies Theses

Civil cases in Ghana are tried by the bench. Criminal cases are also handled by bench trials, except for certain indictable offenses, which may be tried by a judge or jury. Not all serious offenses are tried by jury. And a trend is developing away from jury to bench trials. For example, treason is punishable by death, but the case is determined in a bench trial by three High Court Judges. Robbery, which had been an indictable offense, is now tried by either jury or bench trial at the discretion of the Attorney-General; and prosecutors consistently have been opting for …

Leadership And Management Training In The North Carolina Judicial System: An Examination Of Identified Need, James E. Hardin Jr.

Duke Law Master of Judicial Studies Theses

The purpose of this paper is to ask whether North Carolina public service lawyers and judges believe that their judicial districts perform with maximum efficiency or whether there could be functional improvement with leadership and management training for system leaders, and with the perceived need of such training, as articulated by these professionals, what a general training model might look like. A brief examination of the institutionally provided leadership and management training offered to system leaders shows sparse resources are expended to develop leaders and train them so that they have the skills to direct individual organizations and change the …

Dissent Aversion At The Court Of Justice Of The European Union, Marsha C. Erb

Duke Law Master of Judicial Studies Theses

The Court of Justice of the European Union has jurisdiction over 28 politically, culturally and linguistically disparate member states in the interpretation and application of EU law. Throughout its 60-year history, the Court has banned publication of the separate opinions of its judges and their voting records favouring instead brief unsigned unanimous decisions achieved by majority vote. The CJEU defends its practice in the interests of protecting judicial independence and its own authority and legitimacy. The Court’s critics call for greater transparency by publishing dissenting opinions along the lines of the United States Supreme Court. The CJEU is one of …

Triadic Legal Pluralism In North Sinai: A Case Study Of State, Shari'a, And 'Urf Courts In Conflict And Cooperation, Mara R. Revkin

Faculty Scholarship

To the extent that legal scholars have addressed the post-authoritarian transitions underway in the Middle East, the scope of their work has been primarily confined to the formal infra-structure of state-manufactured law. Attention has focused on the activities of high courts, parliaments, and the administrative apparatus of official justice systems, while largely neglecting to acknowledge the importance of non-state institutions and systems of normative rules that operate in the shadow of modern bureaucratic governments. The concept of legal pluralism, defined as the coexistence of multiple legal or normative orders within a common geographical area, has been applied extensively in European, …

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …

The Puzzling Persistence Of Dual Federalism, Ernest A. Young

Faculty Scholarship

This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …

The Successes And Challenges For The European Court, Seen From The Outside, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Peruta, The Home-Bound Second Amendment, And Fractal Originalism, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Competing With The “Patent Court”: A Newly Robust Ecosystem, Arti K. Rai

Faculty Scholarship

In a provocative address, Chief Judge Wood of the Seventh Circuit Court of Appeals suggests exposing the Court of Appeals for the Federal Circuit, created in 1982 to hear all appeals from patent cases, to competition from sister appellate courts. This response, published as part of a Symposium on Chief Judge Wood's address, argues that competition is indeed desirable. Whether such competition is best provided by other appellate courts is unclear, however. The more tractable approach is to improve competitive input from sources that have already emerged. These include dissenting Federal Circuit judges, parties and amici who are not "patent …

Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

Faculty Scholarship

No abstract provided.

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Neil Vidmar, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

Can The Law Meet The Demands Made On It?, George C. Christie

Faculty Scholarship

This is my contribution to a festscrift in honor of Professor Don Wallace on his retirement from the Georgetown University School of Law. My essay points out the problems and dangers of the increasing delegation to international and domestic courts, in broad and vague value-laden language, the responsibility of making basic moral and policy decisions for society. It saddles courts with a task that they are not particularly suited to perform and it is certainly not the way a democratic society should function.

The National Security State: The End Of Separation Of Powers, Michael E. Tigar

Faculty Scholarship

No abstract provided.

A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of …

Judging Justice On Appeal, Marin K. Levy

Faculty Scholarship

No abstract provided.

The Effectiveness Of International Adjudicators, Laurence R. Helfer

Faculty Scholarship

This chapter, in the Oxford Handbook of International Adjudication, provides an overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third approach, embeddedness …

How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs

Faculty Scholarship

Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.

Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are …