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Articles 31 - 60 of 382
Full-Text Articles in Courts
Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin
Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin
Pepperdine Law Review
Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …
A Call For America's Law Professors To Oppose Court-Packing, Bruce Ledewitz
A Call For America's Law Professors To Oppose Court-Packing, Bruce Ledewitz
Pepperdine Law Review
A Court-packing proposal is imminent. Mainstream Democratic Party Presidential Candidates are already supporting it. The number of Justices on the Supreme Court has been set at nine since 1869, but this is merely a statutory requirement. As soon as Democrats regain control of the Presidency and the Congress, Court-packing will be on the agenda, either expressly or under the guise of Court-reform. Now is the time for the American legal academy to join together to oppose this threat. Court-packing would threaten democracy, destroy the rule of law and undermine judicial independence. It is a pointless and unnecessary reaction born of …
Filling The Illinois Federal District Court Vacancies, Carl Tobias
Filling The Illinois Federal District Court Vacancies, Carl Tobias
Pepperdine Law Review
President Donald Trump repeatedly argues that appellate court appointments constitute his major success. The President and the United States Senate Republican Party majority have established records by approving fifty very conservative, young, and capable appellate court jurists. However, their confirmations have exacted a toll, particularly from the many federal district courts which address seventy-nine unfilled positions in 677 judicial posts. One constructive illustration has been the three Illinois tribunals which confront five pressing openings. The Administrative Office of the United States Courts classifies three as “emergencies,” because the vacant seats have been protracted and involve substantial caseloads. Despite this circumstance, …
Thinking Slow About Abercrombie & Fitch: Straightening Out The Judicial Confusion In The Lower Courts, Bruce N. Cameron, Blaine L. Hutchison
Thinking Slow About Abercrombie & Fitch: Straightening Out The Judicial Confusion In The Lower Courts, Bruce N. Cameron, Blaine L. Hutchison
Pepperdine Law Review
In Abercrombie & Fitch, the U.S. Supreme Court fundamentally changed the way that Title VII religious accommodation cases are litigated and evaluated. This paper analyzes Abercrombie, explains how the Court eliminated religious accommodation as a freestanding cause of action, and suggests an altered proof framework for plaintiffs seeking an accommodation. The paper also explores the conflict between employee privacy rights and classic proof requirements for religious sincerity. The lower courts have largely failed to apprehend the change mandated by Abercrombie, with the result that their opinions are in disarray. The paper includes a chart organizing the diverse lower court opinions.
Judicial And Practitioner Perspectives On Adr, Young Hye Chun
Judicial And Practitioner Perspectives On Adr, Young Hye Chun
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram
Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram
Journal of the National Association of Administrative Law Judiciary
The appointment of Justice Neil Gorsuch to the Supreme Court of the United States has left many wondering if a change to the Chevron doctrine is impending. Justice Gorsuch’s colleague on the Court, Justice Clarence Thomas, shares similar views on Chevron. This article will compare the federal rule to three different states: Indiana, Delaware, and Arizona. Each state has taken a different path in determining that the judiciary should not give deference to an agency’s interpretation of the statutes that it is charged with enforcing. Delaware has affirmatively declared that the Chevron doctrine is not applicable in its state. A …
The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown
The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown
Pepperdine Law Review
The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the details of the …
The Johnson & Johnson Problem: The Supreme Court Limited The Armed Career Criminal Act's "Violent Felony" Provision—And Our Children Are Paying, Shelby Burns
Pepperdine Law Review
The Armed Career Criminal Act and United States Sentencing Guidelines prescribe sentence enhancements based upon a defendant’s prior convictions. In particular, these federal sentencing tools contain violent felony provisions that outline the requirements a state criminal statute must satisfy for a conviction to constitute a violent felony, making the convicted person eligible for a federal sentence enhancement. However, the Supreme Court’s holdings in Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 135 S. Ct. 2551 (2015) severely limited the scope of both sentencing tools’ violent felony provisions, making it more difficult for certain crimes to …
Hearing The States, Anthony Johnstone
Hearing The States, Anthony Johnstone
Pepperdine Law Review
The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a …
Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall
Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall
Pepperdine Law Review
Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation’s history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant changes. …
Justice As Fair Division, Ian Bartrum, Kathryn Nyman, Peter Otto
Justice As Fair Division, Ian Bartrum, Kathryn Nyman, Peter Otto
Pepperdine Law Review
The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court’s decision-making process might act to reverse this loop and work to depoliticize the Court …
How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon
How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon
Pepperdine Law Review
Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases …
The Pirate’S Code: Constitutional Conventions In U.S. Constitutional Law, Mark Tushnet
The Pirate’S Code: Constitutional Conventions In U.S. Constitutional Law, Mark Tushnet
Pepperdine Law Review
A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions’ erosion has been accompanied by …
What Are The Judiciary’S Politics?, Michael W. Mcconnell
What Are The Judiciary’S Politics?, Michael W. Mcconnell
Pepperdine Law Review
What are the politics of the federal judiciary, to the extent that the federal judiciary has politics? Whose interests do federal judges represent? This Essay puts forward five different kinds of politics that characterize the federal judiciary. First, the federal judiciary represents the educated elite. Second, the federal judiciary represents past political majorities. Third, the federal judiciary is more politically balanced than the legislative or executive branches. Fourth, the federal judiciary is organized by regions, and between those regions there is significant diversity. Fifth, to the extent that the judiciary leans one way or the other, it leans toward the …
Is It Safe To Speak Up Now? Evaluating The Expansion Of Whistleblower Protection Act Jurisdiction, Gil Landau
Is It Safe To Speak Up Now? Evaluating The Expansion Of Whistleblower Protection Act Jurisdiction, Gil Landau
Journal of the National Association of Administrative Law Judiciary
Whistleblowers have uncovered billions of dollars of fraud and severe national security threats. Nonetheless, for many years, federal employee whistleblowers faced retaliation and termination. Congress passed the Whistleblower Protection Act (WPA) in an attempt to protect federal employee whistleblowers. But, the exclusive court for WPA appeals, the Federal Circuit, ignored Congressional intent and limited the WPA’s protections. In 2013, Congress responded by creating a five year experiment, known as “all circuit review,” to determine if WPA claims should also be appealable to the regional circuits. Over the past three years, all circuit review has led to modest changes in WPA …
Enforcement Of Icsid Convention Arbitral Awards In U.S. Courts, Abby Cohen Smutny, Anne D. Smith, Mccoy Pitt
Enforcement Of Icsid Convention Arbitral Awards In U.S. Courts, Abby Cohen Smutny, Anne D. Smith, Mccoy Pitt
Pepperdine Law Review
No abstract provided.
Court Assistance In Arbitration—Some Observations On The Critical Stand-By Function Of The Courts, Jan K. Schaefer
Court Assistance In Arbitration—Some Observations On The Critical Stand-By Function Of The Courts, Jan K. Schaefer
Pepperdine Law Review
No abstract provided.
Innovation In Arbitration Law: The Case Of Delaware, Christopher R. Drahozal
Innovation In Arbitration Law: The Case Of Delaware, Christopher R. Drahozal
Pepperdine Law Review
Delaware has become increasingly active in adopting innovative arbitration laws. In 2009, Delaware adopted a confidential system of “arbitration” conducted by sitting Court of Chancery judges, which was subsequently held unconstitutional as violating the First Amendment right of public access to the courts. In 2015, it enacted the Delaware Rapid Arbitration Act (DRAA), creating a system of expedited arbitration in Delaware. Among other things, the DRAA sets mandatory time limits for the completion of arbitration proceedings (with financial penalties for arbitrators who fail to comply), restricts the degree of court involvement in the arbitration process, and provides for expeditious review …
Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, George Bermann, Alan Scott Rau
Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, George Bermann, Alan Scott Rau
Pepperdine Law Review
No abstract provided.
Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo
Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo
Pepperdine Law Review
What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 17, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …
The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim
The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Lightening The Load Or Losing Potential? Adr And The Courts Of Appeal, Paul Thies
Lightening The Load Or Losing Potential? Adr And The Courts Of Appeal, Paul Thies
Pepperdine Dispute Resolution Law Journal
No abstract provided.
A Look Back: Developing Indiana Law; Post-Bench Reflections Of An Indiana Supreme Court Justice; Selected Developments In Indiana Administrative Law (1989-2012), Frank Sullivan Jr.
A Look Back: Developing Indiana Law; Post-Bench Reflections Of An Indiana Supreme Court Justice; Selected Developments In Indiana Administrative Law (1989-2012), Frank Sullivan Jr.
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Striving For Efficiency In Administrative Litigation: North Carolina's Office Of Administrative Hearings, Julian Mann Iii
Striving For Efficiency In Administrative Litigation: North Carolina's Office Of Administrative Hearings, Julian Mann Iii
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Transparency In Administrative Courts: From The Outside Looking In, Elizabeth Figueroa
Transparency In Administrative Courts: From The Outside Looking In, Elizabeth Figueroa
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
A Proposal For Improving Argument Before The United States Supreme Court, Louis J. Sirico Jr.
A Proposal For Improving Argument Before The United States Supreme Court, Louis J. Sirico Jr.
Pepperdine Law Review
This Article offers a simple solution for reducing the overload of questions at oral argument. Justices, individually or collectively, could pose written questions on facts and law to the litigants' counsel before oral argument and expect written responses. The submitted questions might inquire about the facts of the case, about the litigant's interpretation of the relevant law, about the response that the litigant would make to a hypothetical scenario, or about the precise holding that the litigant wishes the Court to propound. The responses should allow for more thought-out answers than oral argument can produce and might both reduce the …
“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty
“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty
Pepperdine Law Review
At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date. Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping …
Conceptions Of Religion In The Secular State: Evolving Turkish Secularism, Seval Yildirim
Conceptions Of Religion In The Secular State: Evolving Turkish Secularism, Seval Yildirim
Pepperdine Law Review
The article focuses on the concepts of religion in secular states such as Republic of Turkey. Topics discussed include distinction between secularism and religion, views of philosopher of liberalism John Locke on delegation of matters of faith to the Church and matters of public good to the state along with the relationship of modernization and secularism.
Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin
Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin
Pepperdine Law Review
The article focuses on role of the U.S. courts in confronting religious laws in dispute resolution of various cases of domestic relations, contracts, and torts. Topics discussed include role of secular courts in maintaining constitutional balance between the free exercise and establishment clauses, constitutional challenges faced by religious adherents, and importance of legal pluralism in the U.S.
Rethinking The “Religious-Question” Doctrine, Christopher C. Lund
Rethinking The “Religious-Question” Doctrine, Christopher C. Lund
Pepperdine Law Review
The “religious question” doctrine is a well-known and commonly accepted notion about the First Amendment’s Religion Clauses. The general idea is that, in our system of separated church and state, courts do not decide religious questions. And from this premise, many things flow — including the idea that courts must dismiss otherwise justiciable controversies when they would require courts to resolve religious questions. Yet a vexing thought arises. The religious-question doctrine traditionally comes out of a notion that secular courts cannot resolve metaphysical or theological issues. But when one looks at the cases that courts have been dismissing pursuant to …