Courts Commons^™

The Judicial Experiment With Privatizing Religion, Gerard V. Bradley

Journal Articles

1984 was the high water mark of the U.S. Supreme Court's campaign to privatize religion - to strip public life bare of the sacred. It may also prove to be the mid-point: the "naked public square" was mandated by the Supreme Court in 1962, and there is good reason to think that now, in 2007, the Court might finally put an end to their misbegotten experiment.

"Privatization" of religion is tantamount to "secularism." Neither term denotes atheism, the claim that there is no God and that religion is, basically, an illusion. Privatization and secularism refer not to the denial of …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia Jr.

Journal Articles

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …

Foreign Judgments At Common Law: Rethinking The Enforcement Rules, Tanya J. Monestier

Journal Articles

England and Canada have adopted divergent approaches to the enforcement of foreign civil and commercial judgments. An English court will only enforce a foreign judgment where the defendant submitted to the junsdiction of the foreign court, or was present in the foreign jurisdiction when served with process. This position. while protecting domestic defendants, is outdated and does little to further the objectives underpinning judgment enforcement- Canadian courts, by contrast, have been far more liberal than their English counterparts, enforcing foreign judgments in cases where there is a "real and substantial connection" between the dispute and the judgment forum. While this …

The Writ Of Habeas Corpus And The Special Court For Sierra Leone: Addressing An Unforeseen Problem In The Establishment Of A Hybrid Court, Anthony O'Rourke

Journal Articles

No abstract provided.

Statutory Stare Decisis In The Courts Of Appeals, Amy Coney Barrett

Journal Articles

The Supreme Court has long given its cases interpreting statutes special protection from overruling. Two rationales exist for this practice. One line of thought interprets congressional silence following the Supreme Court's interpretation of a statute as approval of that interpretation. According to this way of thinking, a refusal to overrule statutory precedent is a refusal to veer from an interpretation that Congress has effectively approved. Another line of thought emphasizes that statutory interpretation inevitably involves policymaking, and that policymaking is an aspect of legislative, rather than judicial, power. According to this second way of thinking, the Supreme Court should refuse …

State Courts And The Making Of Federal Common Law, Anthony J. Bellia Jr.

Journal Articles

The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain …

Time Is Money--But Is It Compensable Work? An Analysis Of Ibp, Inc. V. Alvarez, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). The issues raised in that case were: Is the time employees spend walking and waiting in line during the process of donning and doffing required safety equipment considered compensable work such that employers must pay them for that time?

Article Iii And The Cause Of Action, Anthony J. Bellia Jr.

Journal Articles

This Article undertakes a systematic exploration of the concept of the "cause of action" as it is used by courts and scholars in making arguments about the scope of the federal judicial power. The concept of the cause of action figures prominently in debates about such fundamental questions as what kinds of cases Congress may empower federal courts to adjudicate (jurisdiction), who may initiate a case in federal court (standing), and when a federal court may afford a plaintiff a private remedy for the violation of a federal regulatory scheme (implied rights of action). Federal courts have answered these questions, …

Does Title Ix Protect Academic Whistle Blowers? An Analysis Of Jackson V. Birminghan Board Of Education, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005). The author expected the Court to decide whether Title IX's ban on discrimination allows a private individual to sue for retaliation when a recipient of federal funds engages in adverse action against that individual because of his complaints that the recipient is violating Title IX?

What Is An Employer's Liability For Constructive Discharge Under Title Vii? An Analysis Of Pennsylvania State Police V. Suders, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). In this case involving Title VII, the author expected the Court to analyze whether whether a constructive discharge caused by supervisory harassment is a tangible employment action for purposes of imposing striet liability.

The United States Supreme Court Rulings On Detention Of "Enemy Combatants" - Partial Vindication Of The Rule Of Law, Douglass Cassel

Journal Articles

In three rulings on prolonged military detention of so-called "unlawful enemy combatants" in the "war" against terrorism, the United States Supreme Court in June 2004 shielded the rule of law from some of the more extreme excesses of the Bush Administration. However, the Court also yielded some ground and left open a number of troublesome questions.

What Is The Time Limit For Filing A Lawsuit? It Depends On What Your Definition Of "Arising Under" Is! An Analysis Of Jones V. R.R. Donnelley & Sons Co., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Jones et. al. v. R.R. Donnelly & Sons Co., 541 U.S. 369 (2004). The author predicted that the case would require the court to determine the appropriate statute of limitations to apply in a class action race-discrimination lawsuit filed under 42 U.S.C. § 1981.

Federal Courts, International Tribunals, And The Continuum Of Deference: A Postscript On Lawrence V. Texas, Roger P. Alford

Journal Articles

Last year, in the pages of this journal, I published an article addressing the role of international tribunal decisions in federal courts.1 In that article, it was suggested that federal courts should confer varying degrees of deference to international tribunal decisions depending on the circumstances presented. Such degrees of deference were plotted along a "continuum of deference." See: Federal Courts, International Tribunals, and the Continuum of Deference

The purpose of this brief Postscript is to reconsider the "no deference" model in light of the Supreme Court's decisions in Bowers and Lawrence. The Postscript elucidates why Lawrence relied on an international …

Introductory Note To U.S. Court Of Appeals For The District Of Columbia Circuit: Nemariam, Et. Al. V. Ethiopia, Roger P. Alford

Journal Articles

Nemariam v. Ethiopia is one of the most important United States decisions to date addressing whether an international tribunal may be an adequate forum for purposes of dismissing pending litigation based on forum non conveniens. The decision essentially suggests that diplomatic espousal claims before international tribunals can never afford claimants an adequate forum justifying dismissal based on forum non conveniens absent some guarantee of individual relief for meritorious claims.

Musical Courts: Plaintiff Picks A Court But Can Defendant Trump The Choice? An Analysis Of Breuer V. Jim's Concrete Of Brevard, Inc., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Brewer v. Jim's Concrete of Brevard, 538 U.S. 691 (2003). The author expected the Court to address the issue of whether the language of the Fair Labor Standards Act providing that "an action . . . may be maintained in any federal or state court" constitutes an express provision prohibiting removal to federal court when the plaintiff has chosen to maintain its lawsuit in state court.

Mixed Up About Mixed Motive: What Will Trigger A "Mixed Motive" Analysis In Title Vii Cases? An Analysis Of Desert Palace, Inc. V. Costa, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Desert Palace, Inc. v. Costa, 539 U.S. 90, 2003. The author expected the Court to clarify and define the circumstances in which it is appropriate to use the "mixed-motive model" to prove a violation of Title VII under the disparate treatment theory.

Stare Decisis And Due Process, Amy Coney Barrett

Journal Articles

In this Article, I argue that the preclusive effect of precedent raises due-process concerns, and, on occasion, slides into unconstitutionality. The Due Process Clause requires that a court give a person notice and an opportunity for a hearing before depriving her of life, liberty or property. Because of this requirement, courts have held in the context of issue preclusion that as a general rule, judicial determinations can bind only parties. The preclusion literature asserts that this parties only requirement does not apply to stare decisis because stare decisis, in contrast to issue preclusion, is a flexible doctrine. Yet stare decisis …

A Refreshing Jury Cola: Fulfilling The Duty To Compensate Jurors Adequately, Evan R. Seamone

Journal Articles

This Article adopts a new perspective on the obligation of states to compensate jurors on the basis of their financial needs. It combs the nation’s history for answers to a variety of significant questions: Why do states compensate jurors? Have there ever been minimal levels of juror compensation among the states of the union? Have any legal challenges resulted in governments raising jury fees? Have states developed uniform standards for juror compensation in light of varied economic conditions? While, at times, the responses to these questions will be brief, answering them is crucial to understanding how jury fees can be …

Executive Power In Youngstown's Shadows, Patricia L. Bellia

Journal Articles

Fifty years after it was handed down, the Supreme Court's decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court's separation of powers cases. This Article explores two quite different legacies of the Youngstown case. First, Youngstown has a symbolic or rhetorical power, in that it stands as an example of a court invalidating the actions of a coordinate branch of government in a politically delicate context. When a court wields this weapon, it can take some cover in Youngstown's shadows, and the possibility of a court exercising this power disciplines the executive …

Reconciling The Nlra And Irca: Can An Undocumented Worker Receive Back Pay? An Analysis Of Hoffman Plastic Compound, Inc. V. Nlrb, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Hoffman Plastic Compound, Inc., v. NLRB, 535 U.S. 137 (2002). The author expected the Court to address in this case the apparent conflict between the National Labor Relations Act's goal of the prevention of unfair labor practices and the Immigration Reform and Control Act's denial of employment to undocumented aliens. This issue arose because of an award of back pay to an undocumented worker who was fired because of his union organizing activities.

Activism As Restraint: Lessons From Criminal Procedure, Stephen F. Smith

Journal Articles

In this Article, I advance a limited defense of judicial activism by the Burger and Rehnquist Courts in constitutional criminal procedure. My basic claim is that even if the so-called "Counterrevolution" in criminal procedure is viewed as activist -- as I think much of it must be -- it nevertheless was normatively defensible as a necessary condition, in a “second-best” world, of reaching an equilibrium closer to the judicial restraint model than would be possible if activism were only a one-way ratchet. Though my thesis supplies a justification for the Burger and Rehnquist Court's basic approach to legal change, it …

Mr. Dooley And Mr. Gallup: Public Opinion And Constitutional Change In The 1930s, Barry Cushman

Journal Articles

Scholars interested in the development of political and constitutional culture during the 1930s sometimes draw inferences about popular preferences on various issues of social and economic policy from the results of presidential and congressional elections. A review of contemporary public opinion polls taken by George Gallup for the American Institute of Public Opinion and by Elmo Roper for the Fortune Magazine survey offers a more granular understanding of popular views on the public policy issues of the day. This article canvasses all of the public opinion polls taken by Gallup and Roper between 1935, when they began publishing their results, …

The Rehnquist Court And Criminal Procedure, Stephen F. Smith

Journal Articles

Much of recent discussions of conservative judicial activism has concerned the revival of federalism-based limits on Congress during the Rehnquist Court. The allure of federalism as a topic for discussion is understandable, yet I argue that constitutional criminal procedure provides a better context within which to test the Rehnquist Court's commitment to judicial restraint. In this Essay, I examine the topic at hand against the background of the many important developments that have taken place in criminal procedure on Rehnquist's watch. The results of this examination are surprising because they suggest that activism is not necessarily the antithesis of restraint. …

Can Contested Disciplinary Actions Be Considered In Subsequent Termination Proceedings? An Analysis Of United States Postal Service V. Gregory, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case U.S. Postal Service v. Gregory, 534 U.S. 1, 2001. The author expected the case to examine whether, under the Civil Service Reform Act, the Merit Systems Protection Board (MSPB) abuse its discretion when it considers prior discipline that is currently being challenged by the employee in ongoing grievance proceedings?

With All Due Deference: What Constitutes The Exercise Of "Independent Judgment" In The Workplace? An Analysis Of Nlrb V. Kentucky River Community Care, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). The author expected the Court to examine two issues: (1) What is the appropriate interpretation of the statutory phrase "independent judgment" as used in § 2(11) of the National Labor Relations Act in defining which individuals are supervisors; and (2) Who has the burden of proving that an employee meets the definition of supervisor?

Whose Team Am I On Anyway - Musings Of A Public Defender About Drug Treatment Court Practice, Mae C. Quinn

Journal Articles

No abstract provided.

[1999 Developments Concerning] International Courts And Tribunals, Roger P. Alford, Peter H.F. Bekker, Mark B. Rees

Journal Articles

The most significant developments in 1999 regarding international courts and tribunals are reviewed herein, particularly events relating to the International Court of Justice, the United Nations Compensation Commission, the Iran-U.S. Claims Tribunal, the Claims Resolution Tribunal for Dormant Accounts in Switzerland, and the International Commission on Holocaust Era Insurance Claims. Other significant developments relating to the creation of the permanent International Criminal Court, the International Criminal Tribunal for former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Tribunal for the Law of the Sea, and the World Trade Organization Dispute Settlement Mechanism are detailed in other reports in this …

The Rome Treaty For An International Criminal Court: A Flawed But Essential First Step, Douglass Cassel

Journal Articles

Last summer more than 150 UN member states met in Rome to negotiate a treaty to establish a permanent international criminal court. Following years of preparatory meetings in New York and five weeks of negotiation in Rome, they voted 120 to seven, with twenty-one abstentions, for a treaty to establish an International Criminal Court (ICC) to hear future cases of genocide, serious war crimes and crimes against humanity. Most of the world's democracies-western and central Europe together with countries like Argentina, Australia, Canada, Costa Rica, South Africa and South Korea-supported the ICC. Only two democracies-the U.S. and Israel-voted against, thereby …

[1998 Developments Concerning] International Courts And Tribunals, Roger P. Alford, Peter H.F. Bekker

Journal Articles

The most significant developments in 1998 regarding international courts and tribunals ar reviewed herein, particularly events relating to the International Court of Justice, the International Tribunal for the Law of the Sea, the United Nations Compensation Commission (a quasi-tribunal), the Iran-U.S. Claims Tribunal, and the Claims Resolution Tribunal for Dormant Accounts in Switzerland. Other significant developments relating to the establishment of the permanent International Criminal Court and to the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the World Trade Organization are detailed in other reports in this issue.

Do Agency Employees Have A Right To Union Representation When Questioned By An Oig Investigator? An Analysis Of Nasa V. Flra, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case NASA v. Federal Labor Relations Authority, 527 U.S. 229 (1999). The author expected the case to raise the question of whether the Office of Inspector General within a federal agency is acting as a representative of the agency when it conducts investigatory interviews of agency employees, so as to trigger the employee's right to union representation.