Courts Commons^™

Seeking Best Practices Among Intermediate Courts Of Appeal: A Nascent Journey, W. Warren H. Binford, Preston C. Greene, Maria C. Schmidlkofer

The Journal of Appellate Practice and Process

No abstract provided.

Experience Matters: The Rise Of A Supreme Court Bar And Its Effect On Certiorari, Joseph W. Swanson

The Journal of Appellate Practice and Process

No abstract provided.

A Modest Proposal For Regulating Unpublished, Non-Precedential Federal Appellate Opinions While Courts And Litigants Adapt To Federal Rule Of Appellate Procedure 32.1, Sarah E. Ricks

The Journal of Appellate Practice and Process

No abstract provided.

Bureaucratization And Balkanization: The Origins And Effects Of Decision-Making Norms In The Federal Appellate Courts, Stefanie A. Lindquist

University of Richmond Law Review

No abstract provided.

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Birth Of An Institution: Horace Gray And The Lost Law Clerks, Todd C. Peppers

Scholarly Articles

In a vault hidden away in a downtown Boston bank rests a large silver loving cup. The cup was presented to Associate Justice Horace Gray on March 22, 1902 by his law clerks, and engraved on its tarnished surface are the names of the nineteen Harvard Law School graduates who served as Justice Gray’s law clerks. While the details surrounding the presentation of the cup have been lost to history, the gift was likely prompted by the failing health of Justice Gray and his future departure from the Supreme Court. The loving cup is still held by the Gray family, …

Trial Of The Rosenbergs: An Account, Douglas O. Linder

Faculty Works

The Rosenberg Trial is the sum of many stories: a story of betrayal, a love story, a spy story, a story of a family torn apart, and a story of government overreaching. As is the case with many famous trials, it is also the story of a particular time: the early 1950's with its cold war tensions and headlines dominated by Senator Joseph McCarthy and his demagogic tactics. The Manhattan Project was the name given to the top-secret effort of Allied scientists to develop an atomic bomb. One of the Manhattan Project scientists working in Los Alamos was a British …

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

Faculty Scholarship

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

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 …

Toward A History Of Children As Witnesses, David S. Tanenhaus, William Bush

Scholarly Works

This brief essay offers a selective overview of recent trends in the historical scholarship on American childhood from the origins of the American Revolution to the early years of the Cold War. This overview of the literature has two purposes. First, it highlights recent socio-cultural scholarship that presents substantive challenges to the conventional ways of understanding the history of children and the law. Second, in so doing, it points out that legal histories concerned solely with doctrinal matters can, and often do, present a limited and distorted window into the past. Instead, the essay argues that the place of children, …

The Mcmartin Preschool Abuse Trial, Douglas O. Linder

Faculty Works

The McMartin Preschool Abuse Trial, the longest and most expensive criminal trial in American history, should serve as a cautionary tale. When it was all over, the government had spent seven years and $15 million dollars investigating and prosecuting a case that led to no convictions. More seriously, the McMartin case left in its wake hundreds of emotionally damaged children, as well as ruined careers for members of the McMartin staff. No one paid a bigger price than Ray Buckey, one of the principal defendants in the case, who spent five years in jail awaiting trial for a crime (most …

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 …

Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas

Articles

THE COURT: I don't think I have time to listen .... I am not going to reexamine your guilt or innocence here. That is not the purpose of a sentence.. THE DEFENDANT: I did not have the chance to tell you .... THE DEFENDANT: But, your Honor, listen to me-1 Should the court hear this defendant? Is the story of innocence relevant at allocution-the defendant's opportunity to speak on his or her own behalf at the sentencing hearing prior to the imposition of sentence? Or, is the purpose of allocution something different, as the judge suggests? The answers depend on …

The Judicial Treatment Of Noneconomic Compensatory Damages In The 19th Century, Ronald J. Allen, Alexia Brunet

Publications

Do high verdicts for tort cases containing noneconomic damages have historical precedent? We present the results of our empirical inquiry into the treatment of noneconomic compensatory damages by the courts from 1800-1900. Using 1,175 tort cases from this era, we show that, notwithstanding constant reiteration of jury discretion over damages, courts tightly controlled awards. In fact, no case prior to 1900 permitted a noneconomic compensatory damages award exceeding $450,000 in current dollars. Logistic regression results reveal that an increase in total monetary damages is positively and significantly related to the probability of reversal when noneconomic damages were claimed, and that …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. 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 …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

But What Will They Do Without Unpublished Opinions?: Some Alternatives For Dealing With The Ninth Circuit's Massive Caseload Post F.R.A.P. 32.1, Bryan Wright

Nevada Law Journal

No abstract provided.

Commercial Law In The Cracks Of Judicial Federalism, Donald J. Smythe

ExpressO

Almost seventy years after the Supreme Court sought to rationalize the American system of judicial federalism in Erie, sales law remains trapped in a pattern more reminiscent of the Swift v. Tyson era. The extraordinarily wide separation of powers in the NCCUSL-ALI uniform law-making process has entrenched Article 2 of the UCC in the status quo. Concurrently, an imbalance between the federal and state courts in the American system of judicial federalism has conferred an unusually wide range of discretion over state commercial law on the federal courts. Ironically, therefore, state sales statutes are being reinterpreted and revised by the …

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court, Marc L. Roark

ExpressO

This is the introduction to a book I am preparing on the Normative and Narrative aspects of the U.S. Sovereign Immunity Doctrine. The introduction sets up the problem of a doctrine that is not exactly coherent with the national narrative.

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: 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 …

Precedent In The Federal Courts Of Appeals: An Endangered Or Invasive Species?, John B. Oakley

The Journal of Appellate Practice and Process

No abstract provided.

Building An Appellate System Worthy Of A Great Nation, Randall T. Shepard

The Journal of Appellate Practice and Process

No abstract provided.

Reflections On The Role Of Appellate Courts: A View From The Supreme Court, Stephen G. Breyer

The Journal of Appellate Practice and Process

No abstract provided.

The View From The Trenches: A Report On The Breakout Sessions At The 2005 National Conference On Appellate Justice, Arthur D. Hellman

The Journal of Appellate Practice and Process

No abstract provided.

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 …

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 …