Law Commons^™

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy

ExpressO

After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …

Delineating The Interests Of Justice: Prosecutorial Discretion And The Rome Statute Of The International Criminal Court, Henry M. Lovat

ExpressO

Article 53(1) and 53(2) of the Rome Statute allow the prosecutor of the International Criminal Court (ICC) to decline to pursue an investigation or prosecution in the ‘interests of justice’. Some commentators have taken the view that the Office of the Prosecutor of the ICC should not invoke this ground for declining to act in situations where there is a possibility that investigations or prosecutions might impede or interfere with local peace and reconciliation initiatives such as amnesties or truth commissions. According to at least one prominent non-governmental organisation, such decisions are properly the domain of the UN Security Council, …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann

ExpressO

This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Separating Rhetoric From Reality: A Political And Statistical Look At Federal Judicial Confirmation Delays, Marvin L. Longabaugh

ExpressO

In this article, I conduct a statistical analysis of confirmation delays in the ratification of appointments to the federal bench. Section II discusses the history of confirmation delays and some of the political factors that have caused these delays. Section III assesses the effect of factors such as age, education, ethnic origin, and political control of the U.S. Senate on 614 District Court appointments between 1985 and 2000. Section IV conducts a similar analysis on 362 Circuit Court appointments between 1961 and 2000. Last, Section V similarly scrutinizes all 110 Supreme Court appointments from 1789 through 2000.

The Z-Test For Percentages: A Statistical Tool To Detect Pretextually Neutral Juror Challenges, Marvin L. Longabaugh

ExpressO

In the article, I discuss the potential use of public opinion polls to measure the discriminatory effect of certain questions in jury selection. While the laws surrounding race and gender based jury selection are known to most lawyers, there has been little scrutiny on questions that might be posed to potential jurors that are facially neutral, yet have a discriminatory impact. This article examines a number of such questions and offers a statistical test to determine whether a proposed question has, in fact, a 98% certainty of having a discriminatory effect if relied upon in jury selection.

Discarded Deference: Judicial Independence In Informal Agency Guidance, Christopher M. Pietruszkiewicz

ExpressO

In the past few years, the Supreme Court has resurrected an intermediate deference standard from the 1940s to be applied by courts in considering informal guidance issued by administrative agencies. The decision upon which the deference standard is based is a product of a political solution and not a comprehensive evaluation of how the New Deal agencies fit within traditional role of the courts as sole interpreters of the law.

This 1940s decision has evolved such that deference to the views of administrative agencies has become a matter of judicial discretion, finding deference when the views of an agency parallel …

The Supreme Court, Stare Decisis, And The Role Of Judicial Deference In Patent Claim Construction Appeals, David Krinsky

ExpressO

The U.S. Court of Appeals for the Federal Circuit reviews de novo the rulings of district judges about patent claim construction. This state of affairs—surprising to many lawyers who are unfamiliar with patent law—is controversial because claim construction is one of the most important and vexing aspects of patent litigation, necessary to the vast majority of patent cases, and because it is probably responsible, at least in part, for the high reversal rate in patent cases. Commentary by both scholars and judges about the standard of review in patent cases has centered on whether the Federal Circuit should change it …

Reverse Bifurcation, Dru Stevenson

ExpressO

Reverse bifurcation is a trial procedure in which the jury determines damages first, before determining liability. The liability phase of the trial rarely occurs, because the parties usually settle once they know the value of the case. This procedure is already being used in thousands of cases – nearly all the asbestos and Fen-phen cases – but this is the first academic article devoted to the subject. This article explains the history of the procedure and analyzes why it encourages settlements, simplifies jury instructions, and produces better outcomes for the parties.

The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat

ExpressO

This article seeks to fill a major gap in modern First Amendment scholarship by providing a comprehensive examination of a new form of doctrinal analysis that has emerged over the past two decades in free speech law: the “intermediate scrutiny” test. This is the first major scholarly examination of this area of law in over twenty years, and identifies a number of important and problematic developments that have occurred during that time. The article proceeds in three phases. First, I provide a historical description of the emergence of the new “intermediate scrutiny” test since the mid-1980s, through a careful examination …

Flipping A Coin: A Solution For The Inherent Unreliability Of Eyewitness Identification Testimony, Noah A. Clements

ExpressO

By most accounts, mistaken eyewitness identification is the leading cause of wrongful convictions in the U.S. As DNA evidence frees ever more people wrongfully convicted on the basis of mistaken identification testimony, it is worth asking: “What about those cases where there is no DNA evidence?” Study after study shows that eyewitness identifications are unreliable. Courts pay lip service to the concept of reliability, but even after identifications are tainted by suggestion, very few courts actually exclude this tainted identification testimony.

And identifications are powerful. Jurors tend to believe identification testimony more than any other kind. And judges are people …

The Foundations Of Federalism: An Exchange, Randall P. Bezanson

ExpressO

Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

An Emerging Uniformity For International Law, David H. Moore

ExpressO

The status of international law in the U.S. legal system has been hotly contested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court’s decision in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), stoked the debate. In Sosa’s wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law.

This Article asserts that Sosa has been both misperceived …

Just Say "No Fishing": The Lure Of Metaphor, Beth Thornburg

ExpressO

The phrase “fishing expedition” is widely used in popular culture and in the law. In the case of metaphorical “fishing” in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of “fishing” also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of …

The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat

ExpressO

This article seeks to fill a major gap in modern First Amendment scholarship by providing a comprehensive examination of a new form of doctrinal analysis that has emerged over the past two decades in free speech law: the “intermediate scrutiny” test. This is the first major scholarly examination of this area of law in over twenty years, and identifies a number of important and problematic developments that have occurred during that time. The article proceeds in three phases. First, I provide a historical description of the emergence of the new “intermediate scrutiny” test since the mid-1980s, through a careful examination …

Customized Litigation: The Case For Making Civil Procedure Negotiable, Michael Moffitt

ExpressO

This article calls for a complete re-conceptualization of the procedural rules governing modern litigation. Specifically, it suggests that litigants ought to be given the opportunity to customize their litigation experience—that procedural rules should be treated as default rules from which parties can mutually negotiate deviations. Although they are not typically labeled as such, modest examples of customization already occur both within the rules of civil procedure and extra-judicially. This article argues that much greater tailoring is possible, and it suggests three criteria for assessing how much deviation from the current baseline is tolerable. This article argues that a judicial system …

Precedent And Procedural Due Process: Policymaking In The Federal Courts, Sarah A. Maguire

ExpressO

No abstract provided.

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Toward A Federal Common Law Of Bankruptcy: Judicial Lawmaking In A Statutory Regime, Adam J. Levitin

ExpressO

Bankruptcy is a statutory system, yet it is replete with practices for which there is no direct authorization in the Bankruptcy Code. This article argues that the authorization for judicial creation of bankruptcy law beyond the provisions of the Code has been misidentified as the equity powers of bankruptcy courts. This misidentification has led courts to place inappropriate statutory and historical limitations on non-Code practices because of discomfort with unguided equitable discretion.

Both the statutory and historic limitations are problematic. The statutory authorization for the bankruptcy courts’ equitable powers appears to have been repealed by what one judge has called …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

Casenote: Killing Life Partners: Why Viatical Settlements Constitute Securities – In Light Of The Sec V. Mutual Benefits Corporation And Other Recent Cases Explicitly Rejecting Life Partners, Brian Levin

ExpressO

No abstract provided.

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

ExpressO

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Making State Law In Federal Court, Benjamin C. Glassman

ExpressO

Abstract: We know from Erie R.R. Co. v. Tompkins that unless the Constitution or a federal statute provides the rule of decision in federal court, state law does. Contrary to the assumption of several recent commentators, however, Erie itself does not tell the federal court how to ascertain what is the law of the state, and the refrain that federal courts are to predict what the state supreme court would decide not only proves unhelpful upon examination, but also has tended to confuse the courts themselves in recent years. Yet federal courts routinely face questions of state law that admit …

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.