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Articles 121 - 150 of 178
Full-Text Articles in Courts
The Next Generation Of Legal Citations: A Survey Of Internet Citations In The Opinions Of The Washington Supreme Court And Washington Appellate Courts, 1999-2005, Tina Ching
Faculty Articles
As more legal research is conducted online, it is reasonable to conclude that there will be a corresponding increase in citations to the Internet by judges in their opinions. With the widespread public use of the Internet to access information along with the constant changes and impermanence of websites, citing to the Internet should be an issue of increasing concern to the legal community across the country. This paper surveys the types of Internet sources the Washington state Supreme Court and Appellate Court justices are citing. It discusses the interrelated issues of link rot and the impermanence of web pages, …
Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman
Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman
Faculty Articles
This article will discuss the scope of services and rationale for the right to a free lawyer in civil matters as is the case in criminal cases. This right is currently provided in the 49 European member countries in the Council of Europe (COE), Australia, Canada, India, New Zealand, Hong Kong, Japan, Zambia, South Africa, and Brazil. Frequent reference will be made to a chart in the appendix, which condenses extensive information about programs in each of these countries. The article’s general conclusion regarding the foreign programs is that the right to a free lawyer in civil matters is a …
Addressing The Scourge Of Human Trafficking: The Challenge Ahead, Roza Pati
Addressing The Scourge Of Human Trafficking: The Challenge Ahead, Roza Pati
Faculty Articles
No abstract provided.
Equal Protection Unmodified: Justice John Paul Stevens And The Case For Unmediated Constitutional Interpretation, Andrew Siegel
Equal Protection Unmodified: Justice John Paul Stevens And The Case For Unmediated Constitutional Interpretation, Andrew Siegel
Faculty Articles
In one of his first major writings on the United States Supreme Court, Justice John Paul Stevens famously argued that "[t]here is only one Equal Protection Clause." In the ensuing three decades, that quotation has become something of a battle cry for commentators critical of tiered equal protection review, many of whom not only seek to dismantle tiered equal protection scrutiny but also to replace it with an alternative (usually more complicated) doctrinal super-structure. This Article argues that his association with these commentators has partially obscured Justice Stevens's unique equal protection methodology. While he shares (indeed inspired) their critique of …
The Principled Executioner: Capital Juries’ Bias And The Benefits Of True Bifurcation, Susan D. Rozelle
The Principled Executioner: Capital Juries’ Bias And The Benefits Of True Bifurcation, Susan D. Rozelle
Faculty Articles
Capital jurors are "death-qualified," or asked to verify at voir dire that their views on the death penalty would not prevent them from serving impartially. Ironically, death qualification itself creates juries unfairly biased toward guilt and death. Empirical investigation has demonstrated this skewing effect for over fifty years, and with the release of the recent Capital Jury Project data, any doubts on this score surely have been laid to rest. Efforts to ameliorate death qualification's prosecutorial bias have been hamstrung, however, by statutory unitary jury requirements like the one found in the Federal Death Penalty Act. Statutes like these, which …
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
Faculty Articles
Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized 'federalism, " an agenda-driven "conservatism," and a constitutionally fixated 'Judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this Article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility toward the institution of litigation and its concomitant skepticism as to the ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes a pointillist …
Schooling Miranda: Policing Interrogation In The Twenty-First Century Schoolhouse, Paul Holland
Schooling Miranda: Policing Interrogation In The Twenty-First Century Schoolhouse, Paul Holland
Faculty Articles
This article directs courts to base their application of Miranda on an explicit and contextually sound consideration of the relationships among students, officers and administrators. This article argues that Miranda applies when a state agent questions a student under circumstances in which it would be reasonable for the student to believe that she is the subject of law enforcement authority, regardless of whether a law enforcement officer conducts the questioning. The determination that Miranda applies is not tantamount to a decision that the student was in custody. It is merely a prelude to the custody inquiry. This article does not …
Linguistics As A Knowledge Domain In The Law, Janet Ainsworth
Linguistics As A Knowledge Domain In The Law, Janet Ainsworth
Faculty Articles
This article focuses on the use of linguistic expertise by trial courts to aid in fact-finding. It identifies many of the ways the legal system has been enriched by donations from linguistic scholarship. In addition, it discusses the underutilized-at-present use of linguistic knowledge by appellate courts as a tool for crafting and applying doctrinal rules. Whereas courts have adopted economics analysis in determining appropriate legal rules, linguistic science has been neglected. Linguistic predictions are more testable and falsifiable than economic predictions. Linguistic research can be useful—particularly in the areas of comprehensibility of texts and resolving textual ambiguity. Indeed, legislatures and …
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
Faculty Articles
Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized "federalism," an agenda-driven "conservatism," and a constitutionally fixated "judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility towards the institution of litigation and its concomitant skepticism as to ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes a pointillist approach, commenting …
The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark
The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark
Faculty Articles
This article discusses the controversial right-to-die law, and the prominent cases surrounding it. It critically outlines various case outcomes with respect to the law, and discusses seminal development the law has seen.
The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren L. Hutchinson
The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren L. Hutchinson
Faculty Articles
This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, …
The Little Rock School Desegregation Cases In Richard Arnold's Court, Polly J. Price
The Little Rock School Desegregation Cases In Richard Arnold's Court, Polly J. Price
Faculty Articles
This article proceeds as follows. Because it is first necessary to recount some of the history of the Little Rock school cases, Part I discusses the origins and early steps in the long-running litigation. Part II considers the period from 1982 until 2004 when Richard Arnold was a member of the appellate panel assigned to the school cases. This part identifies three critical points of the Eighth Circuit's intervention under Judge Arnold's leadership. In Part III, I suggest how Arnold's motivations for his decisions in the Little Rock school cases related to both his particular view of the limitations of …
In (Slightly Uncomfortable) Defense Of ‘Triage’ By Public Defenders, John B. Mitchell
In (Slightly Uncomfortable) Defense Of ‘Triage’ By Public Defenders, John B. Mitchell
Faculty Articles
This article argues that triaging is necessary for public defenders and is a response to the work of Professor Freedman. Because states lack money in areas of greater community concern, the defense of indigent criminals is neglected and substantial resources are not likely to be forthcoming. The author previously set out a solution of triaging, which can be conducted either haphazardly or according to some set of rational principles based on ethical theory. The author concurs with Professor Freedman to the extent that the United States Supreme Court in Strickland v. Washington effectively ensures that Sixth Amendment Constitutional guarantees will …
When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel
When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel
Faculty Articles
The decision as to who has the authority to bring a matter up for resolution before a criminal court is one of the most basic decisions a system of criminal adjudication must make. Despite - or perhaps because of - the elemental nature of this structural matter, historians and scholars of criminal procedure have thus far offered a startling paucity of evidence as to the history and policy consequences of different docket control regimes. This article offers the first comprehensive examination of this issue, rescuing the history of criminal court calendar control from the dustbin of history and grappling in …
The Case Of The Little Yellow Cuban Biplane: Can Interest Analysis Reconcile Conflicting Provisions In Federal Statutes And International Treaties?, Diane Lourdes Dick
The Case Of The Little Yellow Cuban Biplane: Can Interest Analysis Reconcile Conflicting Provisions In Federal Statutes And International Treaties?, Diane Lourdes Dick
Faculty Articles
This article analyzes conflicts that arise under international agreements that define and protect foreign ownership interests in civil aircraft, on the one hand, and domestic laws that allow Americans to bring suit against state sponsors of terrorism, on the other hand. Finding that courts often perform concealed interest analyses under the guise of mechanical application of canons of construction, this article recommends a comparative impairment interest analysis approach to resolving this and related conflicts.
Evaluating Brady Error Using Narrative Theory: A Proposal For Reform, John B. Mitchell
Evaluating Brady Error Using Narrative Theory: A Proposal For Reform, John B. Mitchell
Faculty Articles
When the United States Supreme Court granted certiorari in Old Chief v. United States, the Court examined Federal Rule of Evidence 403 in light of a defense offer to stipulate to aspects of the proffered prosecution evidence, purportedly to lessen their prejudicial impact. At the core of the opinion rests the validation of a theory born from such disparate fields as Law and Literature, Sociology, and Narrative Theory. This article argues that, though it was not on the proverbial radar screen of the Court when it decided Old Chief, narrative theory provides the most effective tool available for assessing prejudice …
The Documentary History Of The Supreme Court Of The United States. 1789-1800. Vol. 7, Cases: 1796-1797, George Van Cleve
The Documentary History Of The Supreme Court Of The United States. 1789-1800. Vol. 7, Cases: 1796-1797, George Van Cleve
Faculty Articles
In this review, the author expresses praise for DHSC 7, a document that covers court cases from 1796 to 1797. It highlights various particular cases while noting how effectively they are examined. Ultimately, the review advocates that students of legal history should consider the DHSC 7.
The Cauldron Boils: Supplemental Jurisdiction, Amount In Controversy, And Diversity Of Citizenship Class Actions, Richard D. Freer
The Cauldron Boils: Supplemental Jurisdiction, Amount In Controversy, And Diversity Of Citizenship Class Actions, Richard D. Freer
Faculty Articles
Ultimately, it does not matter how or even whether the Supreme Court resolves the issue. The fact that we still do not know whether Zahn lives after thirteen years-demonstrates that legislation concerning the jurisdiction of the federal courts should not be the hurried product of a few drafters whose work is not circulated for broader discussion. Ours is a world in which any change to a Federal Rule of Civil Procedure-no matter how minor-must be circulated and subjected to public comment and review. Yet the jurisdiction of the federal courts can be changed in relative secrecy and haste. Congress committed …
All Facts Are Not Created Equal, Bryan Adamson
All Facts Are Not Created Equal, Bryan Adamson
Faculty Articles
This article attempts to: 1) illustrate the inherent ambiguities of Rule 52(a), exacerbated by a court-created fact typology; 2) explain one of those types-the constitutional fact doctrine-and demonstrate how the Supreme Court has applied that doctrine inconsistently; and 3) explore whether the Sixth Circuit, by invoking the constitutional fact doctrine in Grutter, was attempting to extend the doctrine into the jurisprudence of Fourteenth Amendment intentional discrimination claims, or wrongfully appropriating the trial court's fact finding role.
Civil Procedure: Class Certification And The Predominance Requirement Under Oklahoma Section 2023(B)(3), Steven S. Gensler
Civil Procedure: Class Certification And The Predominance Requirement Under Oklahoma Section 2023(B)(3), Steven S. Gensler
Faculty Articles
No abstract provided.
Diversity Class Actions, Common Relief, And The Rule Of Individual Valuation, Steven S. Gensler
Diversity Class Actions, Common Relief, And The Rule Of Individual Valuation, Steven S. Gensler
Faculty Articles
No abstract provided.
The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner
The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner
Faculty Articles
No abstract provided.
Clarence Thomas The First Ten Years: Looking For Consistency, Mark Niles
Clarence Thomas The First Ten Years: Looking For Consistency, Mark Niles
Faculty Articles
Dean Niles describes his observation and impression of the first ten years of Clarence Thomas’ judgeship. While Dean Niles admits that his own views are more liberal than Clarence Thomas’, he was not initially concerned about those differences. But as the days, weeks and years passed, notwithstanding Dean Niles’ early stoicism, serious concerns about the candidate, and later the Justice, began to arise. These concerns were not based on Justice Thomas' beliefs or ideology, but on a growing set of inconsistencies that began to arise between some of his beliefs and actions. With all due respect to a man who …
Precedent And Judicial Power After The Founding, Polly J. Price
Precedent And Judicial Power After The Founding, Polly J. Price
Faculty Articles
A recent decision by a panel of the Court of Appeals for the Eighth Circuit enlivened the controversy over court rules that prevent citation to unpublished opinions when it held that the Circuit's non-citation rule violates Article III of the United States Constitution. This Article affirms the view that judicial power includes a doctrine of precedent, without relying solely upon an originalist interpretation of Article III. This approach identifies a consistent "core idea" of precedent that courts must consider how a similar case was decided in the past, even where there are varying ideas about the binding nature of that …
Bifurcation Unbound, Steven S. Gensler
Prejudice, Confusion, And The Bifurcated Civil Jury Trial: Lessons From Tennessee, Steven S. Gensler
Prejudice, Confusion, And The Bifurcated Civil Jury Trial: Lessons From Tennessee, Steven S. Gensler
Faculty Articles
No abstract provided.
Why Should The Prosecutor Get The Last Word?, John B. Mitchell
Why Should The Prosecutor Get The Last Word?, John B. Mitchell
Faculty Articles
This article examines reasons the prosecutor should make the closing arguments in the United States. It also examines the importance of closing arguments; the advantages of going first and the scientific bases of primacy; and the advantages of rebuttal.
Full Faith And Credit And The Equity Conflict, Polly J. Price
Full Faith And Credit And The Equity Conflict, Polly J. Price
Faculty Articles
As this Article relates, the current problem with interstate enforcement of injunctions and other equitable decrees is illustrated by the Court's confusion in Baker. The Court reached the correct result in the case before it, but the basic problems of "equity conflict" remain unresolved. Both the Court's opinion and the two concurrences were unsatisfactory because the Court failed to address the key underlying issue of whether or to what extent courts may rely on state law to enjoin extraterritorial conduct. Had the Court focused on this issue, I argue, it could have based its decision upon a more appealing rationale. …
Critical Applications And Proposals For Improvement Of The Uniform Interstate Family Support Act And The Full Faith And Credit For Child Support Orders Act, Patricia W. Moore
Critical Applications And Proposals For Improvement Of The Uniform Interstate Family Support Act And The Full Faith And Credit For Child Support Orders Act, Patricia W. Moore
Faculty Articles
The problems inherent in interstate child and spousal support enforcement have been lamented for at least a half century. The federal and state governments have taken numerous steps to enhance interstate establishment and collection of support. Two of the latest steps in this process were the 1992 promulgation of the Uniform Interstate Family Support Act ("UIFSA") and the 1994 adoption of the federal Full Faith and Credit For Child Support Orders Act ("FFCCSOA"). The 1996 federal "welfare reform" bill' affected both of these statutes by requiring the states to pass UIFSA by January 1, 1998 and by amending FFCCSOA …
Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp
Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp
Faculty Articles
No abstract provided.