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Articles 331 - 360 of 441
Full-Text Articles in Common Law
"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker
"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker
Articles & Book Chapters
The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a …
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Faculty Scholarship
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …
A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan
A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan
Faculty Works
Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …
The Supreme Common Law Court Of The United States, Jack M. Beermann
The Supreme Common Law Court Of The United States, Jack M. Beermann
Faculty Scholarship
The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …
Preventing, Implementing And Enforcing International Humanitarian Law, Juan E. Mendez
Preventing, Implementing And Enforcing International Humanitarian Law, Juan E. Mendez
Scholarly Articles in Law Reviews & Journals
No abstract provided.
The Protection Of Religious Freedom Under The American Constitution, Robert A. Sedler
The Protection Of Religious Freedom Under The American Constitution, Robert A. Sedler
Law Faculty Research Publications
No abstract provided.
A Constitutional Significance For Precedent: Originalism, Stare Decisis, And Property Rights, Polly J. Price
A Constitutional Significance For Precedent: Originalism, Stare Decisis, And Property Rights, Polly J. Price
Faculty Articles
The discussions in this Article proceed as follows. Part I briefly introduces several areas of contemporary debate for which this inquiry is relevant. In Part II, I examine previous scholarly evaluations of the doctrine of precedent in the formative period. I provide an alternative explanation for the adoption by American courts of rhetoric favoring stare decisis, one that links the rhetoric used by these courts with the predominant property discourse of the Founding period and with the Marshall Court’s subsequent emphasis on vested rights and the Contracts Clause. I suggest that the stare decisis property rule gained widespread acceptance as …
Promissory Estoppel: The Life History Of An Ideal Legal Transplant, Joel M. Ngugi
Promissory Estoppel: The Life History Of An Ideal Legal Transplant, Joel M. Ngugi
University of Richmond Law Review
This article hopes to accomplish three things. First, it will revisit the historical origins of the doctrine of promissory estoppel in the American law of contracts and the role that Samuel Williston, the Chief Reporter of the Restatement (First) of Contracts ("First Restatement") played in the evolution of the doctrine. The dominant theory is that Williston conceptualized the new promissory estoppel doctrine in a way that retarded and blunted the doctrine shortly after its birth. This theory is adhered to by both critics and proponents of the expansion of promissory estoppel as a ground of promissory obligation. According to both …
The Merger Of Common-Law And Equity Pleading In Virginia, W. Hamilton Bryson
The Merger Of Common-Law And Equity Pleading In Virginia, W. Hamilton Bryson
University of Richmond Law Review
No abstract provided.
The Merger Of Common-Law And Equity Pleading In Virginia, William Hamilton Bryson
The Merger Of Common-Law And Equity Pleading In Virginia, William Hamilton Bryson
Law Faculty Publications
This article describes the separation of common law and equity in Virginia leading up to the 2006 merger of common law and equity pleading and the problems that remain to be solved by the courts.
The Common Law Of England In Virgina From 1776 To 1830, J. Thomas Wren
The Common Law Of England In Virgina From 1776 To 1830, J. Thomas Wren
Jepson School of Leadership Studies articles, book chapters and other publications
The Virginia Court of Appeals embraced, on the whole, the English legal heritage, despite the violent separation from Great Britain in 1776. This loyalty to English precedents was an illustration of the conservative tenor of the Revolution in Virginia. The English common law continued to be revered because it was perceived to be a bulwark of English, and hence American, liberty. Adherence to English precedent also maintained stable rules of law, which in turn protected existing property rights. At the same time, however, the Court of Appeals was not slavishly devoted to the common law, and the court's departures from …
Public Use Or Experimental Use: Are Clinical Trials Susceptible To Another Attack Similar To That In Smithkline Beecham Corp. V. Apotex Corp., 39 J. Marshall L. Rev. 149 (2005), Nimalka Wickramasekera
Public Use Or Experimental Use: Are Clinical Trials Susceptible To Another Attack Similar To That In Smithkline Beecham Corp. V. Apotex Corp., 39 J. Marshall L. Rev. 149 (2005), Nimalka Wickramasekera
UIC Law Review
No abstract provided.
Enlisting The U.S. Courts In A New Front, Debra M. Strauss
Enlisting The U.S. Courts In A New Front, Debra M. Strauss
Vanderbilt Journal of Transnational Law
The time has come to extend the national approach that has been used successfully to dismantle the infrastructure of hate groups to the international realm against terrorist groups. The foundation of this approach is a private right to a cause of action apart from any military or diplomatic efforts by the government. In this Article, Professor Strauss analyzes case precedents under several federal statutes--the Antiterrorism Act of 1991, the Antiterrorism and Effective Death Penalty Act of 1996, the Torture Victim Protection Act, the Alien Tort Claim Act--as well as state common-law tort claims, including aiding and abetting liability. Professor Strauss …
State Courts And The Making Of Federal Common Law, Anthony J. Bellia Jr.
State Courts And The Making Of Federal Common Law, Anthony J. Bellia Jr.
Journal Articles
The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain …
Courts And Lawyers On The Arkansas Frontier, Lynn Foster
Courts And Lawyers On The Arkansas Frontier, Lynn Foster
University of Arkansas at Little Rock Law Review
No abstract provided.
The Common Law Process: A New Look At An Ancient Value Delivery System, Dennis J. Sweeney
The Common Law Process: A New Look At An Ancient Value Delivery System, Dennis J. Sweeney
Washington Law Review
Have common law courts subtly and incrementally put themselves out of the substantial and traditional business of law-making or, at least, put themselves out of business as we once knew it? More personally, do I belong here? Or am I helping to betray the common law tradition I preach and practice and which has served the citizens of Washington since statehood and before? The short answer is: I think not. Each of the relevant principles, if they are to have any practical application at all, must someday be applied by a court to an actual case, to an actual controversy. …
Holmes, Common Law Theory, And Judicial Restraint, 36 J. Marshall L. Rev. 457 (2003), Frederic R. Kellogg
Holmes, Common Law Theory, And Judicial Restraint, 36 J. Marshall L. Rev. 457 (2003), Frederic R. Kellogg
UIC Law Review
No abstract provided.
No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan
No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan
Faculty Works
No abstract provided.
Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss
Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss
Faculty Scholarship
Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …
Common Law Courts In An Age Of Equity Procedure: Redefining Appellate Review For The Mass Tort Era, Melissa A. Waters
Common Law Courts In An Age Of Equity Procedure: Redefining Appellate Review For The Mass Tort Era, Melissa A. Waters
Scholarship@WashULaw
From expansion of tort liability rules, to novel claims aggregation and settlement techniques, to statistically derived liability and damages assessments, mass tort litigation is producing unprecedented innovations at every level of the federal legal system. What is particularly striking about these innovations is that they are almost exclusively the product of a handful of federal trial judges who specialize in mass tort cases. Because appellate courts lack the necessary tools to supervise their decisions, these few mass tort trial judges are shaping the rules that govern the mass tort legal regime with little or no appellate supervision. The result is …
Are Some Words Better Left Unpublished?: Precedent And The Role Of Unpublished Decisions, K.K. Duvivier
Are Some Words Better Left Unpublished?: Precedent And The Role Of Unpublished Decisions, K.K. Duvivier
The Journal of Appellate Practice and Process
The practice of unpublished decisions and their precedential value causes much controversy. The practice of unpublished opinions creates a solution for how to deal effectively with heavy caseloads. Electronic databases make unpublished decisions readily available, which removes any secrecy that critics fear. Unpublished opinions are treated in one of three ways by the courts. In addition, three pragmatic issues are created by allowing opinions to go unpublished: 1) the availability of these decisions, 2) the quality of the reasoning in unpublished decisions, and 3) the treatment of unpublished opinions as precedent.
Preface: Anastasoff, Unpublished Opinions, And "No-Citation" Rules, Coleen M. Barger
Preface: Anastasoff, Unpublished Opinions, And "No-Citation" Rules, Coleen M. Barger
The Journal of Appellate Practice and Process
In the wake of the publication of Anastasoff v. United States a new round of debate has begun over the propriety of unpublished opions and their status as precedent. Circuit courts across the nation vary widely in how this "principle of policy" is treated, thus prompting the Journal of Appellate Practice and Process to call for papers, which are included herein.
A Closer Look At Unpublished Opinions In The United States Courts Of Appeals, Michael Hannon
A Closer Look At Unpublished Opinions In The United States Courts Of Appeals, Michael Hannon
The Journal of Appellate Practice and Process
Some legal researchers may assume that all cases decided by federal courts are published. However, many United States courts of appeals’ decisions go unpublished. United States courts of appeals’ decisions are important sources of law since they are the court of last resort for most litigants. By making a survey of Westlaw and LEXIS, the author sheds light on some aspects of unpublished opinions.
Unpublished Decisions In The Federal Courts Of Appeals: Making The Decision To Publish, Stephen L. Wasby
Unpublished Decisions In The Federal Courts Of Appeals: Making The Decision To Publish, Stephen L. Wasby
The Journal of Appellate Practice and Process
The rise of cases brought before federal appellate courts has caused most opinions to be designated as unpublished. This practice has created much controversy. This essay addresses the decision to publish, guidelines for publication, and enforcement of those guidelines within courts.
Constitutionality Of "No-Citation" Rules, Salem M. Katsh, Alex V. Chachkes
Constitutionality Of "No-Citation" Rules, Salem M. Katsh, Alex V. Chachkes
The Journal of Appellate Practice and Process
No-citation rules raise serious constitutional concerns. Assuming that it is constitutional to designate an opinion as nonprecedential, it is not constitutional to prohibit citing an opinion. No-citation rules are unconstitutional for two reasons. The first, citation prohibitions interfere with a litigant’s First Amendment right of speech and petition. Second, citation prohibitions violate the separation of powers.
Concluding Thoughts On The Practical And Collateral Consequences Of Anastasoff, J. Thomas Sullivan
Concluding Thoughts On The Practical And Collateral Consequences Of Anastasoff, J. Thomas Sullivan
The Journal of Appellate Practice and Process
The publication/citation debate inflamed by the Eighth Circuit decision has uncertain long-term implications. Among these impacts is the understanding of the parameters afforded federal courts by Article III of the United States Constitution. A number of other significant questions are raised, as well as including the access to and the reliance on the work product of the appellate courts.
Publicity And The Judicial Power, Daniel N. Hoffman
Publicity And The Judicial Power, Daniel N. Hoffman
The Journal of Appellate Practice and Process
The judicial branch was created in order to ensure that the rule of law and not the rule of man prevailed. Judges must use reasoning and analysis to fulfill this role. Making decisions based on mere coin tosses or without giving a reason for the decision detracts from the rule of law. Issuing decisions that cannot be published or cited also detracts the judicial role of ensuring that law rules the land.
Anastasoff V. United States And Appeals In Veterans' Cases, Charles G. Mills
Anastasoff V. United States And Appeals In Veterans' Cases, Charles G. Mills
The Journal of Appellate Practice and Process
Many cases regarding veterans' benefits are heard in the Federal Circuit. The Federal Circuit has a practice of issuing one sentence orders in some cases. This practice benefits veterans by allowing decisions adverse to veterans to be made without creating precedential value. Removing the practice of unpublished opinions in the Federal Circuit would extinguish this benefit.
Judging In The Days Of The Early Republic: A Critique Of Judge Richard Arnold's Use Of History In Anastasoff V. United States, R. Ben Brown
Judging In The Days Of The Early Republic: A Critique Of Judge Richard Arnold's Use Of History In Anastasoff V. United States, R. Ben Brown
The Journal of Appellate Practice and Process
Judge Arnold writes in his opinion that courts have the power to interpret or find the law but not create it. He argues that this practice was well established during colonial times and that it was adopted at the nation’s creation. The source of law during the formation of the United States is not as clear as Judge Arnold claims. Courts applied their roles differently in each jurisdiction. The complex history of the appropriate role of the judiciary contradicts Judge Arnold’s claim.
The Unpublished, Non-Precedential Decision: An Uncomfortable Legality?, Melissa H. Weresh
The Unpublished, Non-Precedential Decision: An Uncomfortable Legality?, Melissa H. Weresh
The Journal of Appellate Practice and Process
The United States Court of Appeals for the Eighth Circuit ruled in 2000 that its rule prohibiting the citation of unpublished opinions was unconstitutional. The decision was ultimately vacated en banc. The legality of this prohibition merits consideration by the United States Supreme Court.