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Articles 331 - 360 of 402
Full-Text Articles in Courts
Unraveling The Tangled Web: Choosing The Proper Statute Of Limitation For Breach Of The Implied Covenant Of Good Faith And Fair Dealing, Tyler T. Ochoa, Andrew Wistrich
Unraveling The Tangled Web: Choosing The Proper Statute Of Limitation For Breach Of The Implied Covenant Of Good Faith And Fair Dealing, Tyler T. Ochoa, Andrew Wistrich
Faculty Publications
In this article, we first will review the general principles applicable to classification of claims for limitation purposes and the various statutes which could be applied to breach of the implied covenant of good faith and fair dealing. We then will examine cases in which the statute of limitation for breach of the implied covenant of good faith and fair dealing was at issue and analyze what limitation period, rules of accrual and tolling doctrines are appropriate in the absence of contractual modification. Finally, we will analyze the extent to which contractual modification of the limitation period, rules of accrual …
A Constitutional Bibliography, Thomas E. Baker
A Constitutional Bibliography, Thomas E. Baker
Faculty Publications
No abstract provided.
Quality Of Mercy Must Be Restrained, And Other Lessons In Learning To Love The Federal Sentencing Guidelines, Frank O. Bowman Iii
Quality Of Mercy Must Be Restrained, And Other Lessons In Learning To Love The Federal Sentencing Guidelines, Frank O. Bowman Iii
Faculty Publications
In the remarks that follow, I do four things. First, for those unfamiliar with the Federal Sentencing Guidelines, I begin by explaining briefly how the Guidelines work. Second, I endeavor to show why Judge Cabranes is wrong, absolutely wrong in declaring the Guidelines a failure, and mostly wrong in the specific criticisms he and others level against the Guidelines. Third, after jousting with Judge Cabranes a bit, I discuss some problems with the current federal sentencing system, most notably the sheer length of narcotics sentences. Finally, I comment briefly on some of the implications of the Guidelines, and the principles …
Once A Century: Time For A Structural Overhaul Of The Federal Courts, Martha Dragich
Once A Century: Time For A Structural Overhaul Of The Federal Courts, Martha Dragich
Faculty Publications
In this Article, I describe a structure capable of accommodating growing caseloads in a manner consistent with basic values of appellate justice. Before doing so, I sketch in Part I the structural evolution of the federal courts. Part II describes the current pressures on the courts of appeals, while Part III examines the effects of internal reforms on the quality of appellate justice and the development of a coherent body of national law. Next, in Part IV, I posit requirements for the federal courts' third century. Part V reviews major proposals to address the caseload crisis in the courts of …
Trademark Parody: Lessons From The Copyright Decision In Campbell V. Acuff-Rose Music, Gary Myers
Trademark Parody: Lessons From The Copyright Decision In Campbell V. Acuff-Rose Music, Gary Myers
Faculty Publications
Parodies have long provided many of us with amusement, entertainment,and sometimes even information. An effective parody can convey one or more messages with powerful effect. The message may be a political statement, social commentary, commercial speech, a bawdy joke, ridicule of a brand name, criticism of commercialism, or just plain humor for its own sake. Often someone's ox is being gored, or someone feels that a property right has been infringed. The party so injured often contemplates a lawsuit, and an array of legal theories are available to further that impulse. Perhaps copyright infringement is the claim, if some protectable …
The International Trial Of The Century? A Cross-Fire" Exchange On The First Case Before The Yugoslavia War Crimes Tribunal, Michael P. Scharf, Valerie Epps
The International Trial Of The Century? A Cross-Fire" Exchange On The First Case Before The Yugoslavia War Crimes Tribunal, Michael P. Scharf, Valerie Epps
Faculty Publications
This Article is an expanded version of a presentation delivered at the Conference of International Law Journals on March 29, 1996, in Washington, D.C.
Technology Augmented Litigation--Systemic Revolution, Fredric I. Lederer
Technology Augmented Litigation--Systemic Revolution, Fredric I. Lederer
Faculty Publications
This article reviews key aspects of high technology litigation, including technology augmented court records, two-way video arraignment and testimony, and technology based evidence display, and posits some of the critical jurisprudential and pragmatic issues posed by the use of such technologies
One Crime, Two Punishments - Asset Forfeiture Cases Offer Chance To Sort Out Double Jeopardy Issues, Richard C. Reuben
One Crime, Two Punishments - Asset Forfeiture Cases Offer Chance To Sort Out Double Jeopardy Issues, Richard C. Reuben
Faculty Publications
At a time when anti-government sentiment is running high in some quarters, the U.S. Supreme Court is considering several cases on the hot-button issue of government seizure of private property linked to crimes, known as asset forfeitures.
Your Honor What I Meant To State Was . . .: A Comparative Analysis Of The Judicial And Evidentiary Admission Doctrines As Applied To Counsel Statements In Pleadings, Open Court, And Memoranda Of Law, Ediberto Román
Faculty Publications
This article analyzes the law regarding party admissions; specifically as applied to statements in pleadings, open court, and memoranda of law. In particular, this article will: (1) provide a detailed description of the two types of admissions counsel make; (2) address courts' treatment of attorneys' admissions in different circumstances; and (3) provide an argument for treating attorneys' admissions in memoranda of law similar to admissions in open court or in pleadings. The goal of this article is to provide a blueprint of the law on admissions, an area of law where all to often counsel pays little attention, and to …
A Catalogue Of Judicial Federalism In The United States, Thomas E. Baker
A Catalogue Of Judicial Federalism In The United States, Thomas E. Baker
Faculty Publications
No abstract provided.
A View To The Future Of Judicial Federalism: “Neither Out Far Nor In Deep”, Thomas E. Baker
A View To The Future Of Judicial Federalism: “Neither Out Far Nor In Deep”, Thomas E. Baker
Faculty Publications
Professor Baker briefly sketches some likely future scenarios for state courts and federal courts and then highlights what he expects will be the future opportunities for cooperation and judicial federalism. Included are discussions of the separate futures of the state and federal courts and then how the two judiciaries will relate to each other in the years ahead.
Intramural Reforms: How The U.S. Courts Of Appeals Have Helped Themselves, Thomas E. Baker
Intramural Reforms: How The U.S. Courts Of Appeals Have Helped Themselves, Thomas E. Baker
Faculty Publications
No abstract provided.
Will The Federal Courts Of Appeals Perish If They Publish? Or Does The Declining Use Of Opinions To Explain And Justify Judicial Decisions Pose A Greater Threat?, Martha Dragich
Faculty Publications
This Article examines three of those practices: selective publication, summary disposition, and vacatur upon settlement.
The Evolution Of American Probate Courts And Emerging Standards To Guide Their Progress, Thomas L. Hafemeister, Paula Hannaford-Agor
The Evolution Of American Probate Courts And Emerging Standards To Guide Their Progress, Thomas L. Hafemeister, Paula Hannaford-Agor
Faculty Publications
Courts with probate jurisdiction are an excellent example of the evolution of American courts. Despite the fact that they are direct descendants of the English judicial system, the structure, jurisdiction, and procedures of the probate courts assumed a uniquely American flavor soon after their initial establishment in the colonies. From the beginning, American probate courts have shown considerable diversity from state to state. State courts exercising probate jurisdiction have continued to evolve over time in response to the various demands placed upon them. This article describes the historical evolution of American courts exercising jurisdiction over probate matters, with specific attention …
Justice Defined - It Takes More Than A Single Opinion To Understand How Legal Reasoning And Personal Experience Shape A 24-Year Career, Richard C. Reuben
Justice Defined - It Takes More Than A Single Opinion To Understand How Legal Reasoning And Personal Experience Shape A 24-Year Career, Richard C. Reuben
Faculty Publications
With his retirement in June after participating in more than 800 cases - including his career-identifying 7-2 opinion in Roe v. Wade legalizing abortion - the definition of Harry Blackmun's tenure lies in the seeming contradiction of commitment and flexibility. Along with a steadfast defense of the right to abortion in Roe, 410 U.S. 113 (1973), and successive cases, Blackmun's significance was in the power of his vote. Often overlooked in the public's emphasis on Roe is an appreciation of Blackmun's reflective, methodical, if not occasionally pointed, jurisprudence.
A Bibliography For The United States Courts Of Appeals, Thomas E. Baker
A Bibliography For The United States Courts Of Appeals, Thomas E. Baker
Faculty Publications
No abstract provided.
A Proposal That Congress Create A Commission On Federal Court Structure, Thomas E. Baker
A Proposal That Congress Create A Commission On Federal Court Structure, Thomas E. Baker
Faculty Publications
Predicting the shape and size of the federal judiciary in the future requires us to gaze into a rather clouded crystal ball; clouded, because the prediction of future changes in any institution is a hazardous business, and clouded even more in this case because political pressures as well as rational discourse will determine what the federal courts look like a generation hence.
Imagining The Alternative Futures Of The U.S. Courts Of Appeals, Thomas E. Baker
Imagining The Alternative Futures Of The U.S. Courts Of Appeals, Thomas E. Baker
Faculty Publications
Any number of extramural or structural reforms have been proposed over the years to solve the present problems and to meet the future needs of the United States Courts of Appeals. Some have been on the drawing board for a long time, while others are much more novel. In this article, Professor Baker gathers the more provocative extramural or structural proposals that have coalesced thus far in the decades-long debate over what Congress should do about the intermediate federal appellate courts. The Final Report of the Federal Courts Study Committee is the point of departure for this "inquiry and discussion."
The Eleventh Circuit’S First Decade Contribution To The Law Of The Nation, 1981-1991, Thomas E. Baker
The Eleventh Circuit’S First Decade Contribution To The Law Of The Nation, 1981-1991, Thomas E. Baker
Faculty Publications
Likewise, the task of commentary is difficult. The period covered here-the first decade of the Eleventh Circuit-represents, quite literally and figuratively, the formative era of the court. Indeed, the volume of decisions and their variety are qualities that ought to humble, if not intimidate, most commentators. Justice Holmes once observed that a common law court could be expected to replicate the entire corpus juris in the space of a single generation. The Eleventh Circuit did this consciously between 1981 and 1991. In Bonner v. City of Prichard, the inaugural en banc court held that the new court-just cleaved from the …
The Inherent Power To Impose Sanctions: How A Federal Judge Is Like An 800-Pound Gorilla, Thomas E. Baker
The Inherent Power To Impose Sanctions: How A Federal Judge Is Like An 800-Pound Gorilla, Thomas E. Baker
Faculty Publications
Inherent sanctions, like Rule 11 sanctions, may be imposed against any person responsible for wrongdoing, regardless of whether that person is a litigant or an attorney. Sanctionable wrongdoing includes pre litigation misconduct, as well as abuses of process that occur beyond the courtroom, such as the willful disobedience of an otherwise valid court order, so long as the court affords a violation due process before imposing sanctions. In addition to Rule 11's function as a deterrent, inherent sanctions further the goals of compensation and punishment.
An Assessment Of Past Extramural Reforms Of The U.S. Courts Of Appeals, Thomas E. Baker
An Assessment Of Past Extramural Reforms Of The U.S. Courts Of Appeals, Thomas E. Baker
Faculty Publications
Professor Baker posits several radical changes to the structure of the federal appellate courts to ease the growing caseload. First, he suggests restricting the jurisdiction of the federal district courts. Second, Professor discusses the merits of using alternative dispute resolution. Next, he discusses the merits and pitfalls of expanding, dividing and even establishing a specialized appellate judiciary. Finally, he discusses improving federal legislation to ease the load on the federal appellate courts.
Small Numbers, Black Men, Precipitous Responses, Big Problems, Michael A. Middleton
Small Numbers, Black Men, Precipitous Responses, Big Problems, Michael A. Middleton
Faculty Publications
Professor Culp has aptly warned us that in our discussion of employment discrimination we should not lose sight of the need to address the spectrum of policies affecting the status of African-Americans. Without serious efforts in all aspects of American life (e.g., housing, education, health care, political and economic empowerment) our chances of significantly improving the future for African-American men are slim.
The National Probate Court Standards: The Role Of The Courts In Guardianship And Conservatorship Proceedings, Paula Hannaford-Agor, Thomas L. Hafemeister
The National Probate Court Standards: The Role Of The Courts In Guardianship And Conservatorship Proceedings, Paula Hannaford-Agor, Thomas L. Hafemeister
Faculty Publications
In this article, Ms. Hannaford and Professor Hafemeister confront the issue of who will ensure that the needs of the growing elderly population are met. The authors provide a history and overview of guardianship proceedings and also provide, for the first time, a quantitative description of guardianship usage in the United States. The authors assert that guardianships and conservatorships remain effective ways to protect the rights of the incompetent elderly person. Although these remedies create a legal right in the guardian to manage the financial and medical welfare of the elderly client, the authors argue that a lack of procedural …
Limitation Of Legal Malpractice Actions: Defining Actual Injury And The Problem Of Simultaneous Litigation, Tyler T. Ochoa, Andrew Wilstrich
Limitation Of Legal Malpractice Actions: Defining Actual Injury And The Problem Of Simultaneous Litigation, Tyler T. Ochoa, Andrew Wilstrich
Faculty Publications
In this article, we will first review the development of the "actual injury" tolling provision in California, from its judicial adoption in 1971 to its legislative adoption in 1977. Second, we will explore the policies underlying the legal malpractice statute of limitation and the countervailing policies that may make delayed accrual or tolling desirable in situations involving simultaneous litigation. Third, we will examine case law applying the "actual injury" tolling provision to various fact situations and analyze potential legal solutions to the problem of defining "actual injury," including the doctrine of equitable tolling. Finally, we will demonstrate how the doctrine …
Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins
Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins
Faculty Publications
With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation in the …
The Role Of The Federal Magistrate Judge In Civil Justice Reform, R. Lawrence Dessem
The Role Of The Federal Magistrate Judge In Civil Justice Reform, R. Lawrence Dessem
Faculty Publications
This Article considers the role of the United States magistrate judge in civil justice reform and, more specifically, the role that the early implementation districts envision for magistrate judges within their own districts. Part I briefly considers the evolution of the office of magistrate judge prior to the enactment of the Judicial Improvements Act of 1990. Part II addresses the treatment of magistrate judges under that legislation. Next, Part III recounts the roles assigned to magistrate judges under the Civil Justice Reform Act in the individual district courts. These varying uses of magistrate judges then will be critiqued in Part …
Judicial Reporting Under The Civil Justice Reform Act: Look, Mom, No Cases!, R. Lawrence Dessem
Judicial Reporting Under The Civil Justice Reform Act: Look, Mom, No Cases!, R. Lawrence Dessem
Faculty Publications
This article addresses the new reporting provision of the Civil Justice Reform Act. Part II analyzes the reporting requirement and the requirement's legislative history. Part III describes the implementation of the requirement by the federal judiciary, while Part IV discusses the initial reports filed pursuant to the provision and the media coverage of those reports. Part V next analyzes the wisdom of the reporting requirement, concluding that, on balance, the requirement may be helpful in furthering public accountability of an independent federal judiciary. Part VI then considers what the data now publicly reported under the Civil Justice Reform Act does, …
Uniformity In The Federal Courts: A Proposal For Increasing The Use Of En Banc Appellate Review, Michael Ashley Stein
Uniformity In The Federal Courts: A Proposal For Increasing The Use Of En Banc Appellate Review, Michael Ashley Stein
Faculty Publications
No abstract provided.
Table Of United States Supreme Court Decisions Relating To Religious Liberty 1789-1994, Carl H. Esbeck
Table Of United States Supreme Court Decisions Relating To Religious Liberty 1789-1994, Carl H. Esbeck
Faculty Publications
No abstract provided.
1993 Survey Of Trends And Developments On Religious Liberty In The Courts, Carl H. Esbeck
1993 Survey Of Trends And Developments On Religious Liberty In The Courts, Carl H. Esbeck
Faculty Publications
The purpose of this survey is to note important case law developments in the state and lower federal courts concerning religious liberty. Purposely omitted are the widely reported United States Supreme Court opinions, as well as cases where the Supreme Court has granted review during the 1993-94 term. The focus here is on significant or interesting cases that may otherwise escape broad attention. Only the facts and rationale of each decision is summarized. No editorial comment on the merits of these cases is intended.