Courts Commons^™

"Issue Voting" By Multimember Appellate Courts: A Response To Some Radical Proposals, John M. Rogers

Vanderbilt Law Review

A judge on a multimember appellate court can vote against the result of his or her own reasoning by deferring to a majority on a subissue on which the judge differs. When Justice White did just this in Pennsylvania v. Union Gas,' soon followed by a similarly anomalous vote by Justice Kennedy in Arizona v. Fulminante, I examined the pool of United States Supreme Court cases in which this kind of voting was possible. Out of more than one hundred fifty earlier cases where one or more of the justices might have voted in such a way, only two justices …

Statutory Interpretation And The Idea Of Progress, Daniel A. Farber

Michigan Law Review

A Review of William N. Eskridge, Dynamic Statutory Interpretation

Appellate Court Voting Rules, Scott B. Smith

Vanderbilt Law Review

During the 1996 term, the United States Supreme Court made a candid confession about its voting practices. In Seminole Tribe of Florida v. Florida, the Court overruled Pennsylvania v. Union Gas Co. and recognized that when a justice defers to the majority against his or her own reasoning inconclusive precedent results. Union Gas was particularly unusual because Justice White switched his vote to assure a result in a three-remedy case where none of the three remedies had the support of a majority. In Seminole Tribe, the Court admitted Union Gas "has, since its issuance, been of questionable precedential value, largely …

How Outcome Voting Promotes Principled Issue Identification: A Reply To Professor John Rogers And Others, Maxwell L. Stearns

Vanderbilt Law Review

In his provocative article, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals,' Professor John M. Rogers has provided a valuable opportunity for those of us interested in the structural aspects of appellate court decisionmaking--especially Supreme Court decisionmaking--to step back, to compare notes, and to evaluate an increasingly prominent proposal for institutional reform. More importantly, this Colloquium provides an opportunity to explore more deeply several anomalies associated with appellate court decisionmaking. At the outset, I should emphasize that while he devotes a considerable portion of his article to evaluating my scholarship on appellate court decisionmaking, as Professor …

Studying The Federal Appellate System, Carl W. Tobias

Law Faculty Publications

No abstract provided.

The Computer As Advocate: An Approach To Computer-Generated Displays In The Courtroom, Mario Borelli

Indiana Law Journal

No abstract provided.

Framing The Issues For Cameras In The Courtrooms: Redefining Judicial Dignity And Decorum, A Wayne Mackay

Dalhousie Law Journal

This article examines the role of s. 2(b) of the Charter of Rights in determining the role of cameras in Canadian courtrooms. The discussions reveal that arguments in opposition to cameras are largely unfounded and in contradiction to the freedom of expression guarantee. The denial of the right is in reality based on judges' and lawyers' fear of loss of control of the courtroom environment. Cameras should only be banned from courtrooms as part of a total publication ban, and then only after a careful s. 1 analysis

The Influence Of The Arkansas Supreme Court's Opinions On Policy Made By The General Assembly: A Case Study, Chuck Smith

University of Arkansas at Little Rock Law Review

No abstract provided.

Defining Political Corruption: The Supreme Court's Role, Paul S. Edwards

Brigham Young University Journal of Public Law

No abstract provided.

Five Supreme Court Constitutions: Race-Based Scrutiny Past, Present, And Future, David Zimmerman

Brigham Young University Journal of Public Law

No abstract provided.

For The Civil Practitioner, Bonnie R. Gerhardt

Washington and Lee Law Review

No abstract provided.

For The Criminal Practitioner, Thomas R. Ascik

Washington and Lee Law Review

No abstract provided.

Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

Foreigner! The word says it all. Verging on the politically incorrect, the expression is full of connotation and implication. A foreigner will face bias. By such a thought process, many people believe that litigants have much to fear in courts foreign to them. In particular, non-Americans fare badly in American courts. Foreigners believe this. Even Americans believe this.

Such views about American courts are understandable. After all, the grant of alienage jurisdiction to the federal courts, both original and removal, constitutes an official assumption that xenophobic bias is present in state courts. As James Madison said of state courts: “We …

Courts In Cyberspace, Theodore Eisenberg, Kevin M. Clermont

Cornell Law Faculty Publications

No abstract provided.

Structuring Multiclaim Litigation: Should Rule 23 Be Revised?, William W. Schwarzer

Michigan Law Review

The question whether Rule 23 should be revised therefore is not susceptible to a global answer unless revision is stylistic only, limited to making the text more elegant - and even stylistic revision is likely to have some substantive impact, even if unintended. But if the argument for revision is that the Rule is in some respect deficient and should be made to work better, one must begin by answering the question how it should work. That in tum depends on defining the Rule's purpose - what it is intended to accomplish.This paper examines briefly the purposes for which the …

The Dynamics Of Constitutional Adjudication, Bernhard Schlink

Cardozo Law Review

Habermas determines the role and legitimacy of constitutional adjudication through three confrontations. First, he confronts both the liberal and the welfare-state paradigms of law, seeing constitutional adjudication move from the former to the latter. Habermas wants this move to arrive at a procedural paradigm of law. Second, he confronts a norm- and a value-oriented understanding of the constitution. Habermas indicates the dangers of the former and the merits of the latter, and attempts to show that principles, understood as norms, should guide constitutional adjudication. Third, he confronts the liberal and the republican views of the political and constitutional process, developing …

Why Care? The Trouble With Social Rights, Günter Frankenberg

Cardozo Law Review

While not everybody will agree that social rights are good in general, the ranks of the "not-everybody" will fill when one wants to decide who needs which particular social rights. Even those who claim to be philosophically and practically supportive of the idea and the benefits of social rights find it difficult to come up with a strong argument for them and usually invoke vague or weak obligations to support the victims of capitalism or, if you will, the market society or the mere necessity to preserve social peace by a minimally redistributive social policy. Social scientists have plausibly claimed …

The Puzzling Boundary Between Criminal And Civil Retroactive Lawmaking, Harold J. Krent

All Faculty Scholarship

No abstract provided.

Lessons From The Past: Revenge Yesterday And Today, Tamar Frankel

Faculty Scholarship

Professor Seipp's Paper transports us to the Middle Ages to discover a society that views crime and tort quite differently from the way we view these categories today. Yet our discovery of that society offers a perspective about our own. In Professor Seipp's world the victim of a wrong had a choice: demand revenge by determining how the wrongdoer would be punished, or demand monetary compensation. These two entitlements were mutually exclusive. The victim could choose either one, but to some extent, especially in earlier times, the right of revenge was considered a higher right that the victim was expected …

Trial By Jury Or Judge: Which Is Speedier?, Theodore Eisenberg, Kevin M. Clermont

Cornell Law Faculty Publications

Many take as a given that jury-tried cases consume more time than judge-tried cases. Judge Richard Posner of the Seventh Circuit, for example, opines: “Court queues are almost always greatest for parties seeking civil jury trials. This makes economic sense. Such trials are more costly than bench trials both because of jury fees (which … understate the true social costs of the jury) and because a case normally takes longer to try to a jury than to a judge …. Parties are therefore “charged” more for jury trials by being made to wait in line longer.”

A close reading reveals …

Studying Deck Chairs On The Titanic, William L. Reynolds, William M. Richman

Faculty Scholarship

No abstract provided.

Elitism, Expediency, And The New Certiorari: Requiem For The Learned Hand Tradition, William M. Richman, William L. Reynolds

Faculty Scholarship

No abstract provided.

Romer V. Evans And The Constitutionality Of Higher Lawmaking, Anthony M. Dillof

Law Faculty Research Publications

No abstract provided.

Articles Sell Best Singly: The Disruption Of Slave Families At Court Sales, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This legal history article presents the empirical finding that the risk of family separation at slave auctions was higher at court-ordered and court-supervised sales as compared with private sales of capitalist auctioneers. The article also examines legal and ideological justification for the destruction of slave families. Law served to disguise human agency in the breakup of slave families.

This article builds upon the author’s earlier finding that a majority of slave auctions in South Carolina were conducted by the courts. The data for this article and the previous study were drawn from antebellum primary sources including trial-court records, the salesbooks …

Volume 63

Tennessee Law Review

No abstract provided.

A Constitutional Bibliography, Thomas E. Baker

Faculty Publications

No abstract provided.

Text, Purpose And Facts: The Relationship Between Cercla Sections 107 And 113, William D. Araiza

Faculty Scholarship

No abstract provided.

To Accomplish Fairness And Justice: Substantive Due Process, 30 J. Marshall L. Rev. 95 (1996), James W. Hilliard

UIC Law Review

No abstract provided.

Rule 613: Prior Statements Of Witnesses

Touro Law Review

No abstract provided.

Rule 702: Testimony By Experts

Touro Law Review

No abstract provided.