Courts Commons^™

Pathological Patenting: The Pto As Cause Or Cure, Rochelle Dreyfuss

Michigan Law Review

The Patent Act was last revised in 1952. The hydrogen bomb was exploded that year, vividly demonstrating the power of the nucleus; in the ensuing postwar period, the Next Big Thing was clearly the molecule. Novel compounds were synthesized in the hopes of finding new medicines; solid-state devices exploited the special characteristics of germanium and other semiconductors; as investments in polymer chemistry soared, advice to the college graduate soon boiled down to "one word ... just one word[:] ... Plastics." Over the next half-century, things changed dramatically. "Better living through chemistry" has begun to sound dated (if not sinister). Genomics …

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 The statutory authorization for the bankruptcy courts’ equitable powers appears to have been repealed by what one judge has called …

In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano

UIC Law Review

No abstract provided.

"For It's One, Two, Three Strikes, You're Out . . .", 39 J. Marshall L. Rev. 493 (2006), Kaycee Hopwood

UIC Law Review

No abstract provided.

Revisiting The Tense Relationship Between The U.S. Supreme Court, Administrative Procedure, And The National Environmental Policy Act, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article addresses the possibility, under the prevailing understanding of NEPA, that an agency might draft a comprehensive report containing information about potential environmental effects and alternate approaches to a proposed plan--and then wholly disregard all of this information in making its final decision. Although an agency may contend that it has “considered” the environmental consequences of alternative courses of action, what if these factors have no actual impact on its final decision? Hypothetically, an agency could simply “steamroll” toward its preferred decision, hurdling NEPA's procedural obstacles without genuinely considering potential environmental harms or the means to avoid them.

This …

The Dubitante Opinion, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

A dubitante (pronounced d[y]oo-bi-tan-tee) opinion indicates that “the judge doubted a legal point but was unwilling to state that it was wrong.” Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion--What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of …

Addressing The Scourge Of Human Trafficking: The Challenge Ahead, Roza Pati

Faculty Articles

No abstract provided.

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

ExpressO

No abstract provided.

Use Of Wto Decisions In Judicial Review Of Adminstrative Action Under U.S. Antidumping Law, Dan Nichols

Brigham Young University International Law & Management Review

No abstract provided.

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

State Of Israel V. Peretz, Dorit Beinisch, Eliahu Mazza, Mishael Cheshin, Aharon Barak, Jacob Turkel, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Asher Grunis

Translated Opinions

Facts: In two unrelated cases, the prosecution and the defence made a plea bargain in the trial court that was subsequently rejected by the trial court, and the respondents were given stricter sentences than the ones recommended to the court in the plea bargain. The respondents appealed against the strictness of the sentences. In the appeals, which were heard jointly, the state defended the sentences that were handed down by the trial courts, rather than the plea bargains that were originally made by the state. The appeals were allowed, but the court expressed different views on the question whether …

Adjudicating International Trade Cases At The U.S. Commerce Department: Endless Remand Or Balanced Resolve?, 39 J. Marshall L. Rev. 59 (2005), Elizabeth C. Seastrum, Matthew D. Walden

UIC Law Review

No abstract provided.

A Call For Change: Improving Judicial Selection Methods, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Empirical data show that, despite the significant electoral success of state court judges, elections still impact judicial decision making. Using the State of Wisconsin as an example, this Essay suggests that Wisconsin and other state legislatures, with the support of bar associations and academics, should revisit the historical underpinnings of judicial elections and consider both whether electing judges conforms with the historical goals of having an elected judiciary and whether the available empirical data support the belief that elected judges can be systematically consistent and independent in the decision making process.

Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …

Marbury V. Madison As The First Great Administrative Law Decision, 37 J. Marshall L. Rev. 481 (2004), Thomas W. Merrill

UIC Law Review

No abstract provided.

Consular Absolutism: The Need For Judicial Review In The Adjudication Of Immigrant Visas For Permanent Residence, 37 J. Marshall L. Rev. 577 (2004), Maria Zas

UIC Law Review

No abstract provided.

Chevron And Preemption, Nina A. Mendelson

Articles

This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …

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 …

Legislating Chevron, Elizabeth Garrett

Michigan Law Review

One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, lnc., is routinely referred to as the "counter-Marbury." The reference suggests that Chevron's command to courts to defer to certain reasonable agency interpretations of statutes is superficially an uneasy fit with the declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language or filling …

Voting And Electoral Politics In The Wisconsin Supreme Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article examines criminal cases decided by the Wisconsin Supreme Court over a fifteen-year period in an effort to discern whether judicial elections undercut judicial independence by affecting the ways justices vote. Wisconsin was chosen for this study because the state's mix of appointed and elected judges allows a researcher to control for different judicial selection systems. Specifically, this Article questions whether voting patterns may be affected by a justice's proximity to judicial elections, election margins, and whether a justice was appointed or elected in the initial term, since the governor may appoint a justice to fill a vacancy on …

Goldwasser, The Telecom Act, And Reflections On Antitrust Remedies, Philip J. Weiser

Publications

No abstract provided.

The Koon Trap: Why Imperfect Entrapment Fails To Justify Departure From The Federal Sentencing Guidelines, Joseph M. Meadows

Indiana Law Journal

No abstract provided.

Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

Faculty Scholarship

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses rules …

Listing And Delisting Processes Under The Endangered Species Act: Hearing Before The S. Subcomm. On Fisheries, Wildlife And Water, 107th Cong., May 9, 2001 (Statement Of John D. Echeverria, Dir. Environmental Policy Project, Geo. U. L. Center), John D. Echeverria

Testimony Before Congress

No abstract provided.

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.

Interpreting Urugual Round Agreements Act Section 102(B)'S Safeguards For State Sovereignty: Reconciling Judicial Independence With The United States Trade Representative's Policy Expertise, Brandon Johnson

Michigan Journal of International Law

In this Note, I address the concerns of one aspect of this academic commentary-the claim that the WTO Agreement may cause a tectonic shift in domestic regulatory power, away from the states and toward the federal government and/or the WTO. I argue that while the concerns about the loss of national sovereignty are exaggerated, there is a very real threat to the sovereignty of the States. Congress was aware of this danger and included a variety of provisions designed specifically to protect state sovereignty from federal encroachment in the Uruguay Round Agreements Act (URAA), the federal legislation incorporating the WTO …

Federal Common Law, Cooperative Federalism, And The Enforcement Of The Telecom Act, Philip J. Weiser

Publications

Congress increasingly has enacted cooperative federalism programs to achieve complex regulatory policy objectives. Such programs combine the authority of federal regulators, state regulators, and federal courts in creative and often pathmarking ways, but the failure of these actors to appreciate fully their respective roles threatens to undermine cooperative federalism's effectiveness. In this Article, Professor Philip Weiser develops a coherent vision of how federal courts should enforce cooperative federalism regulatory programs. In particular, he relates the rise and purpose of cooperative federalism to the federal courts' increased reluctance to make federal common law under the Erie doctrine and their greater deference …

Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser

Publications

In this Article, Professor Weiser calls for a new conception of federal-state relations to justify existing political practice under cooperative federalism regulatory programs. In particular, Professor Weiser highlights how Congress favors cooperative federalism programs--that combine federal and state authority in creative ways--and has rejected the dual federalism model of regulation--with separate spheres of state and federal authority that current judicial rhetoric often celebrates. Given the increasing dissonance between prevailing political practice and judicial rhetoric, courts will ultimately have to confront three fault lines for current cooperative federalism programs: the legal source of authority for state agencies to implement federal law, …

Nebraska V. Wyoming: The End Or Collaboration?, Wendy Weiss, James Montgomery

Strategies in Western Water Law and Policy: Courts, Coercion and Collaboration (Summer Conference, June 8-11)

13 pages.

Contains footnotes.

A Laboratory For Collaboration: Where, Why And Why Not?, Ken Salazar, Felicity Hannay, Steve Sims, Ted Kowalski

Strategies in Western Water Law and Policy: Courts, Coercion and Collaboration (Summer Conference, June 8-11)

12 pages.