Courts Commons^™

Judicial Review Of Customs Service Actions, Peter M. Gerhart

Faculty Publications

This article is based on a report prepared for the Administrative Conference of the United States in connection with its study of judicial review of actions taken by the U.S. Customs Service. The recommendations herein were adopted in substantially identical form by the Administrative Conference at its September 19, 1977, plenary session. The article examines the present availability and scope if review of administrative decisions of the U.S. Customs Service. The author analyzes the overall operation if the Customs Service, procedures for internal review of Customs ,decisions and for assessment of penalties and other sanctions, and the distribution if jurisdiction …

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 …

The Politics Of Establishing An International Criminal Court, Michael P. Scharf

Faculty Publications

Any substantive evaluation of the plan for an international criminal court requires first an understanding of the political currents that underlie the competing proposals. This piece briefly explores the politics of creating a permanent international criminal court. In particular, this comment examines three related issues: (1) the need for an international criminal court, (2) the political obstacles involved in creating such an institution, and (3) the prospects for success in light of these obstacles.

The Puzzling Purposes Of Statutes Of Limitation, Tyler T. Ochoa, Andrew Wistrich

Faculty Publications

One hundred years ago, Oliver Wendell Holmes, Jr. asked, "What is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?" A century later, we are still searching for a satisfactory answer to that question. The purpose of this Article is to press that inquiry further.

The law of limitation of actions is the set of legislatively and judicially created legal rules-including the classification of claims, the duration of limitation periods, the applicable principles of accrual and tolling, and the like-that determine whether a claim is …

A Critique Of The Yugoslavia War Crimes Tribunal In Report Of The International Law Association On An International Criminal Court, Michael P. Scharf

Faculty Publications

It is ironic that history has not been altogether kind to the Nuremberg Tribunal, labeling it "victor's justice," denouncing its application of ex post facto law, and rebuking its procedural shortcomings. Fifty years later, the world community has created another war crimes tribunal - the International Criminal Tribunal for the Former Yugoslavia. In its first annual report, this new Tribunal stated that "one can discern in the statute and the rules a conscious effort to avoid some of the often-mentioned flaws of Nuremberg and Tokyo." Because it will serve as the model for future ad hoc tribunals and a permanent …

Whoever Fights Monsters Should See To It That In The Process He Does Not Become A Monster: Hunting The Sexual Predator With Silver Bullets -- Federal Rules Of Evidence 413-415 -- And A Stake Through The Heart -- Kansas V. Hendricks, Joelle A. Moreno

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

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

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

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 …

A Constitutional Bibliography, Thomas E. Baker

Faculty Publications

No abstract provided.

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

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.

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 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.

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

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 …

Intramural Reforms: How The U.S. Courts Of Appeals Have Helped Themselves, Thomas E. Baker

Faculty Publications

No abstract provided.

A Catalogue Of Judicial Federalism In The United States, Thomas E. Baker

Faculty Publications

No abstract provided.

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.

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

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 …

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.

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.

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 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

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 …

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.

A Bibliography For The United States Courts Of Appeals, Thomas E. Baker

Faculty Publications

No abstract provided.

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.