Courts Commons^™

Renorming Immigration Court, Stacy Caplow

Faculty Scholarship

No abstract provided.

Administrative Law Agonistes, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Courts, Constitutions, And Public Finance: Some Recent Experiences From The States, Richard Briffault

Faculty Scholarship

Unlike the federal Constitution, virtually all state constitutions give detailed attention to questions of public finance. State constitutions limit spending, mandate certain types of spending, constrain taxation and debt, and require special procedures for enacting a budget. One consequence of the constitutionalization of the state fisc is its judicialization, as these measures trigger litigation. Fiscal and political conflicts turn into legal disputes, with courts joining governors and legislatures in shaping state budgets and making state fiscal policy.

This chapter provides an early-21st-century snapshot of the state constitutional law of state finance through a survey of six recent state supreme court …

No Outsourcing Of Law? Wto Law As Practiced By Wto Courts, Petros C. Mavroidis

Faculty Scholarship

This article provides a critical assessment of the corpus of law that the adjudicating bodies of the World Trade Organization (WTO) – the Appellate Body (AB) and panels – have used since the organization was established on January 1, 1995. After presenting a taxonomy of WTO law, I move to discern, and to provide a critical assessment of, the philosophy of the WTO adjudicating bodies, when called to interpret it. In discussing the law that WTO adjudicating bodies have used, I distinguish between sources of WTO law and interpretative elements. This distinction will be explicated in part I below. Part …

Romancing The Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts, created at the end of the 20th century, make court-based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court-based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem-solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through …

The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos

Faculty Scholarship

The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with …

Letting Guidelines Be Guidelines (And Judges Be Judges), Gerard E. Lynch

Faculty Scholarship

In a prescient New York Times op-ed piece entitled "Let Guidelines be Guidelines," written in response to the Supreme Court's decision in Blakely v. Washington, before certiorari was granted in United States v. Booker, Bill Stuntz of Harvard and Kate Stith Cabranes of Yale urged that the best solution for the constitutional crisis facing the United States Sentencing Guidelines would be to treat the Guidelines as guidelines, and not as a straightjacket. The Supreme Court evidently took a similar view, deciding in Booker that the Guidelines were constitutional only to the extent that they were not mandatory. The recent follow-up …

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it cannot realize directly. In this article I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with some but …

The International Criminal Tribunal For Rwanda As The Theater: The Social Negotiation Of The Moral Authority Of International Law, Maya Steinitz

Faculty Scholarship

The international criminal courts (ICCs) - the ad hoc International Criminal Tribunals for the Former-Yugoslavia and for Rwanda, the recently-established permanent International Criminal Court, and hybrid internationalized tribunals such as the Special Court for Sierra Leone - are the international community's attempt to address the worst of the criminal manifestations of racism, nationalism and large-scale xenophobia. Based on five months of ethnographic research at the international criminal tribunal for Rwanda (ICTR), analyzed using Erving Goffman's dramaturgical framework, this article examines the means through which moral authority is constructed and communicated by the ICTR. Specifically, the article advances the argument that …

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Appellate Courts, Michael E. Tigar

Faculty Scholarship

No abstract provided.

What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

A Critical Assessment Of The Cultural And Institutional Roles Of Appellate Courts (Review Essay), Paul D. Carrington

Faculty Scholarship

Reviewing, Daniel Meador et al., Appellate Courts: Structures, Functions, Processes, and Personnel (2d ed. 2006)

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Some Notes On Principled Pragmatism, Christopher H. Schroeder

Faculty Scholarship

Symposium dedicated to the work of Professor Paul J. Mishkin. This article examines several articles by Mishkin. One of the ideas developed here stresses the importance of being mindful of the wider context within which the Supreme Court operates.

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

No abstract provided.

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 …

Do You See What I See - Reflections On How Bias Infiltrates The New York City Family Court - The Case Of The Court Ordered Investigation, Leah A. Hill

Faculty Scholarship

That the Family Court is ill-equipped to address the needs of the hundreds of thousands of cases handled therein is not news. Exploding caseloads, complex problems, and minimal resources are just a few of the ingredients that combine to undermine the Court's ability to fulfill its promise. What has been given less attention until very recently is the extent to which the Family Court's failures disproportionately impact low-income families of color. Any analysis of the Court's impact or efficacy must consider the context I have described in my observations of the Court- the images of black and brown litigants hurrying …

China's Courts: Restricted Reform, Benjamin L. Liebman

Faculty Scholarship

Recent developments in China’s courts reflect a paradox largely avoided in literature on the subject: Can China’s courts play an effective role in a non-democratic governmental system? Changes to courts’ formal authority have been limited, courts still struggle to address basic impediments to serving as fair adjudicators of disputes, and courts continue to be subject to Communist Party oversight. Courts have also confronted new challenges, in particular pressure from media reports and popular protests. At the same time, however, the Party-state has permitted, and at times encouraged, both significant ground-up development of the courts and expanded use of the courts …

Battle Of The Branches: The Separation Of Powers Doctrine In State Education Funding Suits, Sarah Seo

Faculty Scholarship

What is the scope of judicial power to enforce positive rights, such as the right to education? This Note analyzes litigation outcomes in state education finance lawsuits to examine how state courts exercise their authority within the limits of the separation of powers doctrine. The Note argues that practical, non-legal factors play an important role in a judge's decision to grant remedies addressing unconstitutional legislative inaction to provide an adequate public education. In conclusion, the Note discusses the efficacy of education litigation in light of the judicial s jurisdictional limits, as well as the realities of state politics.

A Marriage Of Convenience? A Comment On The Protection Of Databases, Jane C. Ginsburg

Faculty Scholarship

Daniel Gervais concluded his analysis of the protection of databases with three options for the future. I would like to examine a fourth. Let us assume no future flurry of national or supranational legislative activity because the content of databases is in fact already being protected. Not through copyright or sui generis rights, but through other means. Databases are an object of economic value, and they will conveniently wed whatever legal theory or theories will achieve the practical objective of preventing unauthorized exploitation of the works' contents. To beat the marriage metaphor into the ground, I'd like to suggest that, …

Article Iii And Supranational Judicial Review, Henry Paul Monaghan

Faculty Scholarship

With the rise of supranational legislative bodies, the use of supranational adjudicatory bodies has also increased. These adjudicatory bodies have even been allowed to review the domestic law decisions offederal administrative agencies, and their decisions are insulated from any review by Article III courts. These developments have been met by intense opposition. This Article addresses the question whether, as claimed by several writers, the emerging supranational adjudicatory order impermissibly contravenes the "essential attributes of the judicial power established by Article III." Examining two case studies, the North American Free Trade Agreement (NAFTA) and the Supreme Court's recent decisions regarding Article …

Courts As Catalysts: Re-Thinking The Judicial Role In New Governance, Joanne Scott, Susan P. Sturm

Faculty Scholarship

This Article offers a step forward in developing a theory of judicial role within new governance, drawing on the emerging practice in both the United States and Europe as a basis for this reconceptualization. The traditional conception of the role of the judiciary – as norm elaborators and enforcers – is both descriptively and normatively incomplete, and thus needs to be rethought. There is a significant but limited role for courts as catalysts. In areas of normative uncertainty or complexity, courts prompt and create occasions for normatively motivated and accountable inquiry and remediation by actors involved in new governance processes. …

A System Of Wholesale Denial Of Rights, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Federal Court Self-Preservation And Terri Schiavo, Jack M. Beermann

Faculty Scholarship

If the federal court in Florida had granted preliminary relief to allow itself more time to consider the constitutional claims that Terri Schiavo's parents brought on her behalf, and if, as expected, those claims were ultimately rejected, the federal court would have been placed in the unenviable position of having to be the institution that made the final decision to terminate Terri Schiavo's feeding and other treatment. Although I have no way of knowing whether this fact, which has not been noted in the commentary,' actually entered into the mind of any of the federal judges who considered the case, …

The Endorsement Court, Jay D. Wexler

Faculty Scholarship

Since 1986, when William H. Rehnquist was confirmed as the sixteenth Chief Justice of the United States, the Supreme Court has virtually rewritten the entire law regarding the First Amendment’s Religion Clauses. With respect to the Free Exercise Clause, the Court, in its 1990 Employment Division v. Smith decision, reversed years of jurisprudence and held that the First Amendment does not entitle religious believers to exemptions from neutral laws of general application. On the Establishment Clause side, the Court recently overturned a series of its earlier decisions on its way to creating a body of law quite amenable to the …

State Convicts And Federal Courts: Reopening The Habeas Corpus Debate, Larry Yackle

Faculty Scholarship

I know what you are thinking. Of all the things that can conceivably happen in this field, the least likely (the very least likely) is that Congress will take a fresh look at federal habeas corpus for state prisoners. It was only in 1996 that Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA),' which ostensibly "reformed" the scheme by which prisoners employ federal habeas to challenge state criminal convictions or sentences. 2 Passing a bill of this magnitude is no small feat. Once such legislation receives approval from both houses of Congress and the President, no one has …

From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs

Faculty Scholarship

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant. " This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The …

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …

Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.