Courts Commons^™

Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner

All Faculty Scholarship

Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the legal …

Transitional Justice: The Un And The Sierra Leone Special Court, Richard S. Williamson

Cardozo Public Law, Policy & Ethics Journal

The article explores the role of transitional justice in post-conflict societies, with a focus on the United Nations' efforts to address war crimes and promote reconciliation. It highlights the establishment of the Sierra Leone Special Court and the Truth and Reconciliation Commission as key mechanisms for accountability and healing. The article argues that transitional justice is essential for national reconciliation, democracy, and long-term peace, emphasizing the importance of balancing justice with the need to avoid destabilizing fragile post-conflict societies.

The Constitution In Crisis Times, Jack N. Rakove

Cardozo Public Law, Policy & Ethics Journal

The article examines the challenges the U.S. Constitution faces during crises, particularly in the context of the post-9/11 "War on Terror." It argues that terrorism represents a persistent condition rather than a traditional war, requiring a balanced approach to security and civil liberties. The author emphasizes the importance of constitutional checks on executive power and the role of Congress in ensuring civil liberties are protected during crises.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Retaining Judicial Authority: A Preliminary Inquiry On The Dominion Of Judges, Larry Catá Backer

William & Mary Bill of Rights Journal

Why do the people and institutions of democratic states, and in particular those of the United States, obey judges ? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing …

Constitutional Empiricism: Quasi-Neutral Principles And Constitutional Truths, Timothy Zick

Faculty Publications

The absence of neutrality and objectivity in constitutional decision-making has vexed scholars and courts. In this Article, the author describes and analyzes "constitutional empiricism," a trend instituted by the Rehnquist Court, which is characterized by judicial reliance in constitutional review on empirical and scientific conventions and processes. Courts have generally relied upon traditional sources, such as text and history, to interpret consititutional powers and rights. In its search for neutrality and objectivity, however, the Court has recently turned not only to social science and other data, which are fast becoming common sources of interpretation, but also to the precepts and …

Brief Of Amicus Curiae National Association Of Criminal Defense Lawyers In Support Of The Petitioner, Richard W. Garnett, Joshua L. Dratel, Richard A. Greenberg

Court Briefs

No. 03-44
Basim Omar Sabri v. United States of America

On Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit

From the Summary of the Argument

This case considers the constitutional validity of a relatively novel but increasingly employed federal criminal statute, 18 U.S.C. § 666, that has engendered fierce debate about some of the "oldest questions" of constitutional law. See New York v. United States, 505 U.S. 144, 149 (1992) ("[t]he constitutional question is as old as the Constitution: It consists of discerning the proper division of authority between the Federal Government and …

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …

Us V. Pimentel, 346 F. 3d 285 - Court Of Appeals, 2nd Circuit 2003, Roger J. Miner '56

Circuit Court Opinions

These appeals arise from the January 9, 1995 gang-related murder of Galiat Santiago. Instead of being tried in New York State Supreme Court for violating the New York Penal Law, defendants-appellants Joanna Pimentel and George Viruet (collectively, the "Defendants") were tried by a jury and convicted in the United States District Court for the Eastern District of New York (Johnson, J.). The Defendants were charged with violations of various federal laws, including the Violent Crimes in Aid of Racketeering ("VCAR") statute, 18 U.S.C. § 1959. VCAR provides for the federal prosecution of violent crime "when those allegedly responsible participated …

The Oral Judgment Practice In The Canadian Appellate Courts, J. E. Côté

The Journal of Appellate Practice and Process

No abstract provided.

Words To The Wise: David C. Frederick's Supreme Court And Appellate Advocacy, Mark R. Kravitz

The Journal of Appellate Practice and Process

No abstract provided.

No-Citation Rules Under Siege: A Battlefield Report And Analysis, Stephen R. Barnett

The Journal of Appellate Practice and Process

No abstract provided.

Fundamentals Of Preparing A United States Supreme Court Amicus Brief, Dan Schweitzer

The Journal of Appellate Practice and Process

No abstract provided.

Assessing Judgeship Needs In The Federal Courts Of Appeals: Policy Choices And Process Concerns, Arthur D. Hellman

The Journal of Appellate Practice and Process

No abstract provided.

Appellate Mediation In Pennsylvania: Looking Back At The History And Forward To The Future, Sandra Schultz Newman, Scott E. Friedman

The Journal of Appellate Practice and Process

No abstract provided.

The Supreme Court's Labor And Employment Decisions: 2002-2003 Term, Maria O'Brien

Faculty Scholarship

This article summarizes U.S. Supreme Court cases from the October 2002 term that related directly or indirectly to labor or employment law or have implications for labor and employment practitioners. Of particular interest are the University of Michigan affirmative action cases' and the Texas criminal sodomy case. ² Although not nominally "labor and employment" cases, these cases will profoundly affect labor and employment issues. Lawrence v. Texas has already altered the lenses through which society views homosexuality and altered public discourse related to homosexuality and same-sex relationships. ³ The reasoning of the Court shows how far issues of sexuality have …

An Autopsy Of The Structural Reform Injunction: Oops ... It's Still Moving, Myriam E. Gilles

Articles

No abstract provided.

Symposium Editor's Note, Barbara A. Babb

All Faculty Scholarship

No abstract provided.

Delinquency Jurisdiction In A Unified Family Court: Balancing Intervention, Prevention, And Adjudication, Gloria Danziger

All Faculty Scholarship

This article will examine the demographics of the current juvenile delinquency caseloads and will argue that, despite trends toward greater punitive measures-including placement of juveniles in adult courts for certain offenses, the concept of a therapeutic "family-centered court," which inspired Jane Addams and her colleagues, remains the most promising approach to delinquency, articulated most notably by the proponents of the unified family court concept. The article will consider and address objections and concerns raised with respect to this approach, looking at ways in which several states have incorporated juvenile delinquency into a family-centered unified family court.

Federal Court Authority To Regulate Lawyers: A Practice In Search Of A Theory Of A, Fred C. Zacharias, Bruce A. Green

Vanderbilt Law Review

Federal courts regulate lawyers, including federal prosecutors, by enforcing various constitutional, statutory, and other legal constraints. Federal courts also adopt and enforce their own disciplinary rules pursuant to rule-making authority delegated by Congress. To what extent, however, do federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors? Although lower federal courts have long exercised power both to define and to sanction professional misconduct, the United States Supreme Court has never clarified the source and scope of this authority.

This issue is important for two reasons. First, most federal …

Effects Of Race And Prosecutor's Perceptions Of Victim's Behaviors On Domestic Violence Case Outcomes, Angel K. Williams

Sociology & Criminal Justice Theses & Dissertations

The purpose of this study is to investigate the effects of race and prosecutor's perceptions of victim's behavior on domestic violence case outcomes. This research utilizes data collected by Belknap and Graham (2000) in a large Midwestern Urban area during 1997-1998. Past literature supports the predictions that race and victim's behaviors affect case outcomes. However, there are no studies that examine either race and victim's behavior or the connection between them.

Analyses revealed that victim's race is not significantly related to case outcome. Perceptions of victim's behavior, however, were significantly related to case outcomes. Additionally, prosecutor's race and level of …

Brief Of Amici Curiae The Becket Fund For Religious Liberty, The Catholic League For Religious And Civil Rights, And Historians And Legal Scholars In Support Of Respondent, Richard W. Garnett, Kevin J. Hasson, Roman P. Storzer, Anthony R. Picarello Jr., Gerard V. Bradley

Court Briefs

No. 02-1315
Gary Locke v. Joshua Davey

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of the Argument

The Washington State law at issue in this case disqualifies a student from an otherwise available government benefit, only because the student would use the benefit for a religious purpose. That is the core constitutional offense identified by the court below, and this Court may affirm on that basis alone.

Brief Of Amicus Curiae National Association Of Criminal Defense Lawyers In Support Of The Petition For Writ Of Certiorari, Joshua L. Dratel, Richard W. Garnett

Court Briefs

No. 03-44
Basim Omar Sabri v. United States of America

On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit

From the Statement of the Case

The relevant facts of this case, as well as its procedural history, are set out clearly and completely in Mr. Sabri' s Petition, in the Appendix to that Petition, and in the opinions of the courts below. See United States v. Sabri, 183 F. Supp. 2d 1145 (D. Minn. 2002), rev 'd, 326 F.3d 937 (8th Cir. 2003). For purposes of this amicus curiae …

Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan

Cornell Law Faculty Publications

No abstract provided.

Section 1446(B) Federal Removal Jurisdiction And The Thirty-Day Clock: Should A Motion To Amend Trigger The Time Bomb?, Briant S. Platt

Nevada Law Journal

No abstract provided.

In The Stream Of The Commerce Clause: Revisiting Asahi In The Wake Of Lopez And Morrison, Andrew Kurvers Spalding

Nevada Law Journal

No abstract provided.

Compounding The Countermajoritarian Difficulty Through "Plaintiff's Diplomacy": Can The International Criminal Court Provide A Solution?, John B. Fowles

BYU Law Review

No abstract provided.

No Free Lunch: How Settlement Can Reduce The Legal System's Ability To Induce Efficient Behavior, Abraham Lee Wickelgren

ExpressO

While there is widespread agreement that it is better for cases to settle than go to trial, the arguments in favor of settlement have typically overlooked how settlement affects one of the most important functions of the legal system: influencing the behavior that gives rise to lawsuits. This essay argues that, in some cases, settlement can impair the ability of the legal system to deter harmful behavior without chilling desirable behavior. Where it exists, this effect is a fundamental property of settlement in that there is no way to change other legal rules to eliminate it. Because settlements also have …