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2003

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Articles 31 - 60 of 252

Full-Text Articles in Courts

Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole Aug 2003

Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole

Michigan Law Review

As virtually every law student who studies Marbury v. Madison learns, Chief Justice John Marshall's tactical genius was to establish judicial review in a case where the result could not be challenged. As a technical matter, Marbury lost, and the executive branch won. As furious as President Jefferson reportedly was with the decision, there was nothing he could do about it, for there was no mandate to defy. The Court's decision offered no remedy for Marbury himself, whose rights were directly at issue, and whose rights the Court found had indeed been violated. But over time, it became clear that …

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Legislating Chevron, Elizabeth Garrett Aug 2003

Legislating Chevron, Elizabeth Garrett

Michigan Law Review

One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, lnc., is routinely referred to as the "counter-Marbury." The reference suggests that Chevron's command to courts to defer to certain reasonable agency interpretations of statutes is superficially an uneasy fit with the declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language or filling …

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Alternative Forms Of Judicial Review, Mark Tushnet Aug 2003

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …

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Comparative Constitutionalism In A New Key, Paul W. Kahn Aug 2003

Comparative Constitutionalism In A New Key, Paul W. Kahn

Michigan Law Review

Law is a symbolic system that structures the political imagination. The "rule of law" is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is …

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Censorship, Repression Or Denial?: Unpacking The Symptom Of People V. Wu, Penelope Pether Aug 2003

Censorship, Repression Or Denial?: Unpacking The Symptom Of People V. Wu, Penelope Pether

Cardozo Law Review

No abstract provided.

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Archetypal Trials And The Management Of Dissent: Some Insights From Marketing Theory, Pnina Lahav Jul 2003

Archetypal Trials And The Management Of Dissent: Some Insights From Marketing Theory, Pnina Lahav

Faculty Scholarship

Recent marketing theory uses the Jungian concept of the archetype to design strategies for the improvement of product selling. Mark and Pearson propose that archetypes such as the ruler, the hero, the outlaw, and the sage are useful in promoting a product. This article suggests that the concept of archetypes as well as myths such as the Prometheus myth and the myth of the expulsion from Paradise, when combined with the insights offered by Mark and Pearson, may help in understanding the management of trials of dissent as well. The article presents seven motifs that recur in trials of dissent …

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Reconcilable Differences: The Supreme Court Should Allow The Marriage Of Brady And Plea Bargaining, Andrew P. O'Brien Jul 2003

Reconcilable Differences: The Supreme Court Should Allow The Marriage Of Brady And Plea Bargaining, Andrew P. O'Brien

Indiana Law Journal

No abstract provided.

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Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain Jul 2003

Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

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Cultural Heritage And Identity, Lucille A. Roussin Jul 2003

Cultural Heritage And Identity, Lucille A. Roussin

Cardozo Journal of International and Comparative Law

The article explores the intersection of "cultural property" and "cultural heritage," arguing that while cultural property refers to specific, legally defined objects of historical or scientific significance, cultural heritage encompasses a broader, collective concept tied to identity, history, and public interest. The article highlights how these concepts increasingly overlap, particularly in cases involving restitution, indigenous rights, and the commodification of cultural artifacts. It emphasizes the need for harmonized national and international legal frameworks to address these issues effectively.

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Legal Indeterminacy And Institutional Design, Michael C. Dorf Jun 2003

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

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Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz Jun 2003

Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Michigan Law Review

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

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Government Responsibility For The Acts Of Jailhouse Informants Under The Sixth Amendment, Maia Goodell Jun 2003

Government Responsibility For The Acts Of Jailhouse Informants Under The Sixth Amendment, Maia Goodell

Michigan Law Review

Once a criminal investigation has identified a suspect, and adversarial proceedings have begun, the Sixth Amendment confers a right to be represented by counsel at the "critical stages" of the process. The Supreme Court has made clear that the government cannot circumvent this requirement merely by designating a civilian informant to engage in questioning on its behalf. Less clear is when the government is responsible for the actions of an informant; particularly in the case of jailhouse informants, incarcerated individuals who question fellow inmates, government responsibility is a difficult issue for which no clear legal standard has emerged. An examination …

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First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji Jun 2003

First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji

Michigan Law Review

The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the …

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Evaluation Of The Centers For Complex Civil Litigation Pilot Program, Paula Hannaford-Agor, Nicole L. Mott, Timothy F. Fautsko Jun 2003

Evaluation Of The Centers For Complex Civil Litigation Pilot Program, Paula Hannaford-Agor, Nicole L. Mott, Timothy F. Fautsko

Faculty Publications

In January 2000, the Judicial Council responded to a recommendation of the Complex Litigation Task Force (task force) by establishing the Centers for Complex Litigation Pilot Program in the Superior Courts of Los Angeles, Orange, Contra Costa, Santa Clara, Alameda, and San Francisco counties. The task force recommendation was one of several proposed to improve judicial management of complex cases as a means to expedite case resolution, keeps costs reasonable, and promote effective decision making by the courts, parties and counsel. Participation in the Pilot Program required each site to commit to an individual calendar system dedicated exclusively to complex …

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The Stateless Corporation Finds A Home: Alienage Jurisdiction And Dependent Overseas Territories - J.P. Morgan Chase Bank V. Traffic Stream (Bvi) Infrastructure Limited, Michael Cornell Dypski May 2003

The Stateless Corporation Finds A Home: Alienage Jurisdiction And Dependent Overseas Territories - J.P. Morgan Chase Bank V. Traffic Stream (Bvi) Infrastructure Limited, Michael Cornell Dypski

San Diego International Law Journal

The purpose of this Article is to discuss the evolution of the alienage jurisdiction statute and the status of overseas dependent territories in light of the recent Supreme Court decision. Part I of this Article will provide a brief historical background of 28 U.S.C. § 1332 and its purpose. Part II will discuss the concepts of the state and statelessness, as well as the role of dependent territories in international affairs. Part III will discuss and analyze the various federal decisions seemingly at loggerheads with each other on the issue of federal jurisdiction over dependent territories. Finally, Part IV will …

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Duty Of Care To The Intoxicated: The Irish Approach, Mary Drennan May 2003

Duty Of Care To The Intoxicated: The Irish Approach, Mary Drennan

San Diego International Law Journal

This Article examines whether the relationship between publican and patron should or should not produce such an obligation. It also addresses the possible defenses to such a claim in the tort of negligence. Finally, as the matter is not a settled point of Irish law, this Article also attempts to assess the potential approach of its courts, in view of the approach taken by the English courts to the issue and the flurry of academic comment in the wake of a recent Irish settlement. These issues are certain to surface in litigation again. Regardless of the approach taken by the …

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Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman May 2003

Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman

San Diego International Law Journal

This Comment will examine the similarities and differences between the trademark protection laws with regard to the multi-cultural nature of the consuming public of the European Union and that of the United States, and then will recommend ways in which the laws can be harmonized to promote the congruent development and expansion of economic activities globally. This harmonization is necessary in light of the interplay between these schemes for protection of marks and the protection provided under the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks, and the Madrid Protocol. The …

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The Echr And States Of Emergency: Article 15 - A Domestic Power Of Derogation From Human Rights Obligations, Mohamed M. El Zeidy May 2003

The Echr And States Of Emergency: Article 15 - A Domestic Power Of Derogation From Human Rights Obligations, Mohamed M. El Zeidy

San Diego International Law Journal

This study is divided into two sections. The first section is further divided into two subsections. The first subsection examines the problems in defining emergencies; in the second subsection, we will examine the preconditions required for a valid derogation. The second section determines the Strasbourg machinery for the protection of human rights. This section is also divided into four subsections. Each subsection examines separate case laws from the European Court of Human Rights. Finally, a conclusion will be deduced in the light of the former reviews.

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Two Case Studies In Self-Determination: The Rock And The Bailiwick, Inge V. Porter May 2003

Two Case Studies In Self-Determination: The Rock And The Bailiwick, Inge V. Porter

San Diego International Law Journal

After looking at the concept of self-determination, its history, meaning, and possible future development in Part II, this Paper will develop two case studies. Part III examines the right of self-determination for the people of Gibraltar, analyzing the relevant U.N. resolutions, agreements, treaties, and legislation that have defined the dispute between Great Britain and Spain. For example, Great Britain has ruled the Rock of Gibraltar for 280 years, primarily using it as a military base; but, today, Spain insists that it did not relinquish absolute sovereignty over Gibraltar to the British by the Treaty of Utrecht in 1713. Part IV …

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The Legal And Political Future Of Physician-Assisted Suicide, Larry Palmer May 2003

The Legal And Political Future Of Physician-Assisted Suicide, Larry Palmer

Cornell Law Faculty Publications

No abstract provided.

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Appellate Courts Inside And Out, Maxwell L. Stearns May 2003

Appellate Courts Inside And Out, Maxwell L. Stearns

Michigan Law Review

While the United States Supreme Court has been the object of seemingly endless scholarly commentary, the United States Courts of Appeals are just now coming into their own as a subject of independent academic inquiry. This is an important development when one considers that the vast bulk of relevant precedents governing most federal court litigation comes not from the Supreme Court, but rather from the United States Courts of Appeals. Because relatively few courts of appeals decisions are reviewed in the Supreme Court, with rare exception, the federal circuit courts provide the functional equivalent of that Court's proverbial "last word." …

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Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine May 2003

Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine

Michigan Law Review

For many years the Second Amendment to the constitution was construed by most authorities to grant a communal right to bear arms, through state militias and the like. Some years ago Sanford Levinson labeled this interpretation "embarrassing" to liberal scholars. That characterization was deserved, Levinson argued, since liberal academics had been eager to defend expansive interpretations of other rights-granting provisions of the Constitution. But they failed to do so when it came to language in the Second Amendment, which could be plausibly construed to grant an individual right to bear arms. The failure might be attributed, in part, to the …

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Arising Under Jurisdiction And Uniformity In Patent Law, Christopher A. Cotropia Apr 2003

Arising Under Jurisdiction And Uniformity In Patent Law, Christopher A. Cotropia

Michigan Telecommunications & Technology Law Review

The law governing the Federal Circuit's appellate jurisdiction was brought into question in Holmes Group, Inc. v. Vornado Circulation Systems, Inc. The Federal Circuit's appellate jurisdiction over Vornado's appeal rested solely on Vornado's counterclaim alleging patent infringement by Holmes. Holmes's complaint sought a declaratory judgment of no trade dress infringement and did not include any patent law claims. While the Federal Circuit found appellate jurisdiction over Vornado's appeal based on the counterclaim of patent infringement, the Supreme Court disagreed. The Court focused on the language in 35 U.S.C. § 1338(a), which defines the Federal Circuit's appellate jurisdiction by the statute's …

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First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben Apr 2003

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First Options …

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Law Between The Lines, Thomas L. Fowler Apr 2003

Law Between The Lines, Thomas L. Fowler

Campbell Law Review

This article takes the position that the law can be found between the lines of appellate opinions. Several North Carolina cases admit to sub silentio overrulings, and one court of appeals case explicitly found error when a trial court did not find that a case had been overruled sub silentio. Additionally, North Carolina appellate courts regularly avoid explicitly detailing the impact an opinion has on the precedential value of an earlier case, and instead invite the lower courts to make that determination for themselves.

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Renvoi In Multinational Cases In New York Courts: Does Its Past Preclude Its Future?, Matthew Chait Apr 2003

Renvoi In Multinational Cases In New York Courts: Does Its Past Preclude Its Future?, Matthew Chait

Cardozo Journal of International and Comparative Law

The doctrine of renvoi, which requires courts to consider both the internal laws and conflict of laws rules of a foreign jurisdiction, has been a contentious issue in New York courts. While cases like In re Tallmadge rejected renvoi due to concerns of creating an endless cycle, In re Schneider embraced it, emphasizing the need to apply the whole law of the foreign jurisdiction. Modern approaches aim to integrate renvoi into interest analysis, focusing on practical applications to ascertain foreign interests accurately and promote reciprocity, while addressing concerns about sovereignty and forum shopping.

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In Schultz We Trust: The Future Of Criminal Prosecution For Importers Of Illicit Cultural Property Under The National Stolen Property Act, Robert S. Schwartz Apr 2003

In Schultz We Trust: The Future Of Criminal Prosecution For Importers Of Illicit Cultural Property Under The National Stolen Property Act, Robert S. Schwartz

Cardozo Journal of International and Comparative Law

The National Stolen Property Act (NSPA) is a cornerstone in prosecuting individuals involved in the illegal trade of cultural property, though its effectiveness is constrained by the requirement that source countries nationalize ownership of their cultural heritage. The Cultural Property Implementation Act (CPIA), as the U.S. implementation of the 1970 UNESCO Convention, introduces a certification system and criminal penalties for document falsification, potentially overlapping with the NSPA. The interplay between these laws, particularly in cases like *United States v. McClain* and *United States v. Schultz*, shapes the future of criminal prosecutions in cultural property cases, emphasizing the need to address …

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Mass Torts: Lessons In Competing Strategies And Unintended Consequences, Paula Hannaford-Agor, G. Thomas Munsterman, Barbara Kelly Apr 2003

Mass Torts: Lessons In Competing Strategies And Unintended Consequences, Paula Hannaford-Agor, G. Thomas Munsterman, Barbara Kelly

Popular Media

Most of the existing problems associated with the management of mass tort litigation are the result of fundamentally incompatible strategies that plaintiffs’ lawyers, defense lawyers, and state and federal judges have each adopted over time to deal with the logistics of resolving hundreds, even thousands, of similar cases filed in state and federal courts. Indeed, competing strategies can be found not only between the various players in litigation, but even within subgroups of players. Described in this article are the various strategies employed by different players and the consequences when those strategies have succeeded.

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I'M Innocent: Addressing Freestanding Claims Of Actual Innocence In State And Federal Courts, Eli Paul Mazur Apr 2003

I'M Innocent: Addressing Freestanding Claims Of Actual Innocence In State And Federal Courts, Eli Paul Mazur

North Carolina Central Law Review

No abstract provided.

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On The Road: The Supreme Court And The History Of Circuit Riding, Joshua Glick Apr 2003

On The Road: The Supreme Court And The History Of Circuit Riding, Joshua Glick

Cardozo Law Review

No abstract provided.

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