Courts Commons^™

Tv Or Not Tv: The Telecast Of Appellate Arguments In Pennsylvania, Stephen J. Mcewen

The Journal of Appellate Practice and Process

The Pennsylvania Superior Court began televising en banc oral arguments. The reception of this practice has been extremely positive. The essay discusses the development of televising oral arguments in Pennsylvania’s Superior Court.

Losing Faith: America Without Judicial Review?, Erwin Chemerinsky

Michigan Law Review

In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change. Similarly, Michael Klarman explores whether the Supreme Court's desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate. In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He …

Schmittian Positions On Law And Politics?: Cls And Derrida, John P. Mccormick

Cardozo Law Review

No abstract provided.

Racial Diversity On The Bench: Beyond Role Models And Public Confidence, Sherrilyn A. Ifill

Washington and Lee Law Review

No abstract provided.

Comment: Remarks On Michelman And Breyer, Shlomo Avineri

Cardozo Law Review

No abstract provided.

John Marshall, Mcculloch V. Maryland, And The Southern States' Rights Tradition, 33 J. Marshall L. Rev. 875 (2000), R. Kent Newmyer

UIC Law Review

No abstract provided.

John Marshall In Spencer Roane's Virginia: The Southern Constitutional Opposition To The Marshall Court, 33 J. Marshall L. Rev. 1131 (2000), F. Thornton Miller

UIC Law Review

No abstract provided.

John Marshall And Indian Nations In The Beginning And Now, 33 J. Marshall L. Rev. 1183 (2000), Milner S. Ball

UIC Law Review

No abstract provided.

Marshall Misconstrued: Activist? Partisan? Reactionary?, 33 J. Marshall L. Rev. 1109 (2000), Jean Edward Smith

UIC Law Review

No abstract provided.

Race In The Courtroom: Perceptions Of Guilt And Dispositional Attributions, Samuel R. Sommers, Phoebe C. Ellsworth

Articles

The present studies compare the judgments of White and Black mock jurors in interracial trials. In Study 1, the defendant’s race did not influence White college students’ decisions but Black students demonstrated ingroup/outgroup bias in their guilt ratings and attributions for the defendant’s behavior. The aversive nature of modern racism suggests that Whites are motivated to appear nonprejudiced when racial issues are salient; therefore, the race salience of a trial summary was manipulated and given to noncollege students in Study 2. Once again, the defendant’s race did not influence Whites when racial issues were salient. But in the non-race-salient version …

Agenda Setting In The Courts Of Appeals: The Effect Of Ideology On En Banc Rehearings, Phil Zarone

The Journal of Appellate Practice and Process

Intermediate appellate courts hear whatever case is brought before them on appeal. Therefore, the courts are unable to set an agenda through selecting which cases to hear. Appellate courts may be able to set an agenda, though, through en banc rehearings. This article discusses how courts of appeals decide when to grant en banc proceedings and the effect of ideological use of en banc rehearings.

Redressing The Imbalances: Rethinking The Judicial Role After R. V. R.D.S., Richard Devlin Frsc, Dianne Pothier

Articles, Book Chapters, & Popular Press

The decision of the Supreme Court of Canada in R. v. R.D.S. dealt with whether a trial judge's comments, about the interactions between police officers and "non-white groups", gave rise to a reasonable apprehension of bias in the circumstances. They strongly criticize the contrary ruling of the dissent as inappropriately drawing a false dichotomy between decisions based on evidence and decisions based on evidence and decision based on generalizations, and as improperly ignoring social context with an unwarranted confidence in the ideology of colour blindness. While more supportive of the majority's analysis, the authors also find cause for concern, with …

Making Biomedical Policy Through Constitutional Adjudication:The Example Of Physician-Assisted Suicide, Carl E. Scheider

Book Chapters

Throughout most of American history no one would have supposed biomedical policy could or should be made through constitutional adjudication. No one would have thought that the Constitution spoke to biomedical issues, that those issues were questions of federal policy, or that judges were competent to handle them. Today, however, the resurgence of substantive due process has swollen the scope of the Fourteenth Amendment, the distinction between federal and state spheres is tattered, and few statutes escape judicial vetting. Furthermore, Abraham Lincoln's wish that the Constitution should "become the political religion of the nation" has been granted. "We now reverently …

The Rise And Fall Of Affirmative Action Injury Selection, Avern Cohn, David R. Sherwood

University of Michigan Journal of Law Reform

The U.S. District Court for the Eastern District of Michigan has historically experienced difficulty in achieving jury compositions that truly represented the surrounding community. In response, the Authors share their insight as to how the court instituted a "balancing" program. By reducing the number of white names in the jury wheel, the balancing program successfully incorporated more minorities into the jury system. The Authors further discuss the Sixth Circuit decision, United States v. Ovalle, which marked the end of the balancing program.

The Dynamics And Determinants Of The Decision To Grant En Banc Review, Tracey E. George

Vanderbilt Law School Faculty Publications

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article …

Is Progressive Constitutionalism Possible?, Robin West

Georgetown Law Faculty Publications and Other Works

Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to …

The Interplay Of Race And False Claims Of Jury Nullification, Nancy S. Marder

All Faculty Scholarship

No abstract provided.

The Myth Of The Nullifying Jury, Nancy S. Marder

All Faculty Scholarship

Jury nullification, an issue that has received much public attention, has been used loosely to describe verdicts with which members of the press and public disagree. One aim of this article is to explain what nullification is and to identify and describe three different situations in which nullification is likely to arise. Another aim is to offer two conceptions of the jury before assessing whether nullification is helpful or harmful to the judicial system. One conception, "a conventional view," largely held by judges, regards the jury as a fact-finding body and little more. My own conception, which I have labeled …

Democracy And Inclusion: The Role Of The Judge In A Pluralist Polity, Sylvia R. Lazos

Scholarly Works

The Supreme Court plays a critical role in resolving clashes between majority and minority interests and perspectives. The Equal Protection Clause, and at times the Due Process Clause, have become key vehicles for considering the most problematic intergroup conflicts that divide our society. Prior to this article, the Court heard cases dealing with affirmative action in government procurement programs, legislative districts designed to increase minority representation, state sponsored male-only military schooling, and a state constitutional amendment that would have proscribed antidiscrimination legislation protecting gay men and lesbians. While the Court declined to challenge California's anti-affirmative action referendum (Proposition 209) and …

Restorative Justice: A Conceptual Framework, Jennifer Llewellyn, Robert L. Howse

Reports & Public Policy Documents

Restorative justice has become a fashionable term both in Canadian and foreign legal and social policy discourse. Restorative justice is certainly not a new idea. In fact, it is foundational to our very ideas about law and conflict resolution. There is, nevertheless, a lack of clarity about the meaning of this term. Often it is used as a catchall phrase to refer to any practice which does not look like the mainstream practice of the administration of justice, particularly in the area of criminal justice. Little attention has been spent attempting to articulate what distinguishes a practice as restorative. Rather, …

Liberalism And Abortion, Robin West

Georgetown Law Faculty Publications and Other Works

First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My Consent: Securing the Constitutional Right to Abortion Funding, Eileen McDonagh has sought to redefine drastically our understanding of the still deeply contested right to an abortion, and hence, of the nature of the constitutional protections which in her view this embattled right deserves. Her argument is complicated and subtle, but its basic thrust can be readily …

Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury

Faculty Scholarship

The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …

Caution! Estoppel Ahead: Cleveland V. Policy Management Systems Corporation, Lawrence B. Solum

Faculty Scholarship

The aim of this Commentary is not to argue for a particular resolution of the dispute between Ms. Cleveland and her former employer. Rather, the goal is to address a more general question: Is the Cleveland case an appropriate vehicle for the Supreme Court to endorse the seldom invoked and controversial doctrine of judicial estoppel? That doctrine originated in the needs of a procedural system that was substantially different from the contemporary system, which is shaped by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Contemporary understandings of the respective role of judge and jury and …

Synopsis Of The Report Of The Second Circuit Task Force On Gender, Racial And Ethnic Fairness In The Courts, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

The recent Report of the Second Circuit Task Force on Gender, Racial, and Ethnic Fairness in the Courts (‘Taskforce‘) observes “some biased conduct toward parties and witnesses based on gender or race or ethnicity has occurred on the part of both judges and lawyers.” “Biased conduct toward lawyers based on gender or race or ethnicity, has occurred to a greater degree.” The Report concludes that such conduct is unacceptable and admonishes all participants in the Second Circuit courts to guard against it. The purpose of this Perspective is to review several sections of the Report. The Perspective is written from …

Reverse-Cost-Shifting: A New Proposal For Allocating Legal Expenses, 32 J. Marshall L. Rev. 35 (1998), Ephraim Fischbach, William Mclauchlan

UIC Law Review

No abstract provided.

Civil Justice Reform Symposium: Introduction, James F. Hogg

Faculty Scholarship

Many people in the United States are not happy about the way in which litigation proceeds. In a country sometimes thought to be overpopulated with lawyers, either one party or both parties in a significant percentage of civil cases apparently cannot afford, or decline to retain, legal counsel. Financing for legal aid seems to be less than adequate, pro bono services are helping to some extent, but the administration of civil justice is in danger of sinking in the swamp of pro se ("do-it-yourself') litigation. The articles in this symposium discuss ideas for reform, such as introductory resources directed at …

Deconstructing Homo[Genous] Americanus: The White Ethnic Immigrant Narrative And Its Exclusionary Effect, Sylvia R. Lazos

Scholarly Works

This Article examines why the assumption of sameness is so pervasive in our society, and why the very idea of diversity is so resisted. The assumption and the corollary mandate to be the same are embedded in American cultural ideology, in how Americans think of themselves, in the stories that we tell regarding who we are and where we come from, in how we construct our values and norms, and in how Americans make sense of our chaotic social world. The assumption and mandate of sameness not only influence American culture, they also guide judges' thinking and decision-making in key …

Reshaping The Bedrock Of Democracy: American Jury Reform During The Past 30 Years, G. Thomas Munsterman, Paula Hannaford-Agor

Faculty Publications

In this article, we explore three broad areas of jury reform--administrative, structural, and procedural--as well as the problems they were intended to address and the consequences, both good and bad, that resulted from their implementation.

This abstract has been taken from the author's introduction.

Justices At Work: An Introduction, Michel Rosenfeld

Cardozo Law Review

"Justices at Work," a day long conference which took place on September 19, 1995 at the Benjamin N. Cardozo School of Law, brought together Justices and constitutional scholars from seven different countries to consider a hypothetical constitutional case dealing with fundamental rights. This issue of the Law Review includes the facts of the hypothetical case, the applicable hypothetical statute, the briefs submitted to the International Moot Courtall of which were the product of a collaborative effort among the seven scholars involved-as well as a transcript of the proceedings and of the deliberations of the seven Justices: Justice Ruth Bader Ginsburg …

The Death Penalty And The Decline Of Liberalism, 30 J. Marshall L. Rev. 321 (1997), John R. Macarthur

UIC Law Review

No abstract provided.