Courts Commons^™

The Myth Of Habitual Residence: Why American Courts Should Adopt The Delvoye Standard For Habitual Residence Under The Hague Convention On The Civil Aspects Of International Child Abduction, Stephen E. Schwartz

Cardozo Journal of Equal Rights & Social Justice

The article critiques the challenges in determining "habitual residence" under the Hague Convention on the Civil Aspects of International Child Abduction (HCCAICA), particularly for neonates. It argues that existing standards, such as the settled purpose and Friedrich standards, are overly rigid and unsuitable for infants who cannot form intent. The Delvoye standard is proposed as a more flexible and age-appropriate solution, emphasizing mutual parental intent and adapting to the child's maturity. By adopting this standard, the article contends that courts can better align with HCCAICA's goals of preventing abduction, ensuring prompt returns, and reducing inconsistent rulings.

Kitches And Zorn V. Yong Woo Kim : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (1996–2006)

Appeal from the Final Order of the Second Judicial District Court of Davis County, State of Utah The Honorable Rodney S. Page, District Court Judge

Turning The Tables: Using The Government’S Secrecy And Security Arsenal For The Benefit Of The Client In Terrorism Prosecutions, Sam A. Schmidt, Joshua L. Dratel

NYLS Law Review

No abstract provided.

Eyes Tied Shut: Litigating For Access Under Cipa In The Government’S “War On Terror”, Cameron Stracher

NYLS Law Review

No abstract provided.

Are Your Eyes Deceiving You?: The Evidentiary Crisis Regarding The Admissibility Of Computer Generated Evidence, Betsy S. Fiedler

NYLS Law Review

No abstract provided.

Rethinking The Role Of Expert Testimony Regarding The Reliability Of Eyewitness Identifications In New York, Scott Woller

NYLS Law Review

No abstract provided.

The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda

University of Michigan Journal of Law Reform

In this Article, Professors Chanenson and Gotanda propose that courts treat comparable maximum criminal or civil legislative fines as a presumptive due process limit on punitive damage awards. The Article reviews the manner in which courts have implemented the three-guidepost framework for constitutional review of punitive awards laid out by the Supreme Court in BMW of North America, Inc. v. Gore and in State Farm Mutual Automobile Insurance Co. v. Campbell. Finding that courts have struggled to articulate a coherent rationale and methodology for review of such awards, the authors propose a greater reliance on the third guidepost of …

National Courts, Global Cartels: F. Hoffman-Laroche V. Empagran, S.A., Hannah Buxbaum

Articles by Maurer Faculty

This comment discusses the Supreme Court's recent decision in Hoffman-LaRoche v. Empagran, an action brought by foreign plaintiffs under U.S. antitrust law to recover damages caused by the activities of a global price-fixing cartel. It describes the jurisdictional issues raised by conduct that affects the global market for a particular good, and analyzes the Court's reliance on notions of comity to restrain the reach of U.S. antitrust law. It argues, however, that the decision does not in fact undermine the anti-comity approach adopted in the 1993 Hartford Fire case, as the Court here assumes that the cartel's effects in the …

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura Dooley

Scholarly Works

The quintessential distinguishing feature of the American criminal justice system is the jury. Juries representative of their communities perform the interrelated functions in criminal trials of rendering verdicts that reflect a sense of community justice and giving normative content to the law. When those functions are successfully performed, the jury lends legitimacy to the criminal justice system, bolstering public confidence in the extant rule of law.

Yest the criminal jury's validating functions are critically dependent on its own legitimacy, which in turn requires an examination of two key questions. First, what constitutes a "representative" jury, and second, what is the …

Therapeutic Domestic Violence Courts: An Efficient Approach To Adjudication?, Hon. Catherine Shaffer

Seattle University Law Review

Part II of this Article will explore the history of state intervention to confront domestic violence, along with some of the attitudes that contribute to the lack of adequate enforcement of recent legislative reforms. Part III of this Article will discuss the costs of domestic violence and the impact of superficial court treatment in reducing those costs. Part IV will outline the historical development, philosophy, and potential development of therapeutic courts, and in particular will examine the proven effectiveness of the drug court model and the potential benefits that are unique to domestic violence courts. Part V suggests further creation …

A Courtroom Diagnosis: Countering The Defense Of Temporary Brittle Bone Disease And Mild Oi, Joelle A. Moreno

Faculty Publications

In child abuse cases involving multiple fractures, prosecutors and investigators are increasingly facing a relatively new defense. In some jurisdictions, judges are allowing defense medical experts to testify that infants have not been abused, but instead suffer from a mild form of Osteogenesis Imperfecta (OI) or a purported variant of OI, Temporary Brittle Bone Disease (TBBD). These diagnoses are offered in cases where the injuries are highly specific for abuse because they involve: (1) fractures typical of abuse in different stages of healing; (2) infants who have tested negative for conventionally diagnosable metabolic bone diseases (including OI); and (3) infants …

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 …

Blocs, Swarms, And Outliers: Conceptualizing Disagreement On The Modern Supreme Court Of Canada, Peter Mccormick

Osgoode Hall Law Journal

Almost half of the Supreme Court of Canada's decisions are not unanimous, but not all disagreement is of a kind. It makes a difference whether the panel's unanimity is broken by a single dissident, by several judges signing a single set of reasons, or by several judges each writing separately. This article examines the notion of disagreement, suggests a conceptual framework in which the various disagreement formats can be located, applies that framework to the Court's performance over the past thirty years, and concludes with some speculation as to why the Supreme Court of Canada and the United States Supreme …

Musical Copyright Law: Past, Present And Future Of Online Music Distribution, Robert J. Delchin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Courtroom 21 Project: Creating The Courtroom Of The Twenty-First Century, Fredric I. Lederer

Popular Media

No abstract provided.

Complex Litigation: Key Findings From The California Pilot Program, Paula Hannaford-Agor

Popular Media

The California Judicial Council initiated its Complex Civil Litigation Pilot Program to address concerns raised by business litigants about the time and expense needed to resolve complex cases, the consistency of decision making, and perceptions that the substantive law governing commercial transactions was becoming increasingly incoherent. Two issues in particular were highlighted as problematic. The first was the use of a master calendar system that diffused judicial decision making and accountability for efficient case management. The second was excessive reliance on, and insufficient judicial oversight of, referees and special masters appointed to manage complex litigation.

In a three-year evaluation of …

Statutory Assistance For Attorneys Providing Pro Bono Services, Christine Rollins

All Faculty Scholarship

Missouri attorneys now have the statutory assistance they need to take a more active role in assisting the low-income and under-represented members of our communities.

Induced Litigation, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely …

Aquaculture And Pollutants Under The Clean Water Act: A Case For Regulation, Sean M. Helle

Publications

No abstract provided.

The Ultimate Independence Of The Federal Courts: Defying The Supreme Court In The Exercise Of Federal Common Law Powers, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

All Facts Are Not Created Equal, Bryan Adamson

Faculty Articles

This article attempts to: 1) illustrate the inherent ambiguities of Rule 52(a), exacerbated by a court-created fact typology; 2) explain one of those types-the constitutional fact doctrine-and demonstrate how the Supreme Court has applied that doctrine inconsistently; and 3) explore whether the Sixth Circuit, by invoking the constitutional fact doctrine in Grutter, was attempting to extend the doctrine into the jurisprudence of Fourteenth Amendment intentional discrimination claims, or wrongfully appropriating the trial court's fact finding role.

Hindsight, Regret, And Safe Harbors In Rule 11 Litigation, Charles Yablon

Articles

The 1993 amendments to Rule 11 of the Federal Rules of Civil Procedure successfully reduced both the number of sanctions motions and the chilling effect on meritorious claims, contrary to initial concerns that weaker sanctions would increase frivolous filings. By introducing a safe harbor provision and altering the timing of Rule 11 motions, the amendments mitigated hindsight bias and encouraged the withdrawal of non-meritorious claims without penalty. Empirical evidence, including judicial surveys and a decline in sanctions motions, confirms the amendments' effectiveness in balancing deterrence of frivolous litigation with protection of legitimate claims.

Guantánamo, Diane Marie Amann

Scholarly Works

This article addresses not only offshore detainees at Guantánamo and elsewhere, but also the two Americans and one Qatari held in the United States as enemy combatants. It focuses on the critical issues in U.S. litigation - extraterritoriality and deference - yet also examines the scope of detention and the propriety of proposed special tribunals. After demonstrating that in the wake of September 11, 2001, no U.S. constitutional precedent governed these issues, the article then looks to norms drawn from international humanitarian and human rights law to aid decision. The Supreme Court increasingly consults such external norms as persuasive authority; …

Order In The Court: Judicial Stability And Democratic Success In Haiti, Ben J. Scott

Vanderbilt Journal of Transnational Law

Haiti faces many challenges in its attempt to build a stable, liberal democracy. Haitians have endured a legacy of chaotic and heavy-handed rule in recent decades, and the success of democracy in Haiti is both hoped for and doubted by Haitians and the international community. One reason for the doubts has been the failure of the Haitian government successfully to implement free and fair elections. Citizens and candidates are often hesitant even to participate in elections. Though both were tragic, neither the failed legislative and presidential elections of 2000, nor the subsequent coup d'etat in 2004 that resulted in the …

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claim Act Liability, Lori D. Johnson

Scholarly Works

In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth …

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Unilateral Multilateralism: United States Policy Toward The International Criminal Court, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Whose Justice - Reconciling Universal Juristidiction With Democratic Principles, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Resisting Retreat: The Struggle For Equity In Educational Opportunity In The Post-Brown Era, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

An Essay On The Spirit Of Liberty In The Fog Of War, Patrick L. Baude

Articles by Maurer Faculty

This article previews the Supreme Court's decision in the Guantánamo prisoners' cases, arguing they should be dismissed for failure of jurisdiction. The worst possible outcome for civil liberties in wartime would be a decision to adjudicate the rights of the prisoners under an anemic view of individual rights and judicial jurisdiction. It is evident that the Court will not apply a robust conception of due process to these cases, in light of the inevitable pressures of national security in wartime. But faint-hearted judicial review, the likely result, will foster the political illusion that business as normal for our constitutional system …