Courts Commons^™

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 …

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

Original Jurisdiction Actions As A Remedy For Oklahoma's Decision Deficit, Bradley W. Welsh

Oklahoma Law Review

No abstract provided.

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 …

Committee To Evaluate Judicial Conduct And Disability Act, Carl Tobias

Law Faculty Publications

In late May, Chief.Justice William H. Rehnquist appointed the Judicial Conduct and Disability Act Study Committee to analyze how the federal judicial system has implemented the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§ 351-54). That legislation authorizes anyone to file a complaint alleging that a federal appellate, district, magistrate, or bankruptcy judge has "engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" or is mentally or physically unable to perform the judicial officer's duties. The statute neither prescribes ethical standards nor applies to the United States …

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 …

Brown V. Board Of Education: Reexamination Of The Desegregation Of Public Education From The Perspective Of The Post-Desegregation Era, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

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, …

Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay.

Albert Einstein, Esq., Steven Goldberg

Georgetown Law Faculty Publications and Other Works

Albert Einstein’s 1905 paper setting forth the special theory of relativity is one of the most famous scientific articles ever written. Peter Galison’s influential book, Einstein’s Clocks, Poincaré’s Maps: Empires of Time (2003), demonstrates that Einstein’s paper was fundamentally shaped by his work as a patent examiner by showing that arguments previously seen as abstract thought experiments were instead derived from Einstein’s work on patent applications for devices that coordinate clocks. Moving beyond Galison’s insights, we can see portions of Einstein’s paper as reflecting the quasi-judicial role of a patent examiner. Like trial judges, patent examiners must apply settled legal …

Obvious To Whom? Evaluating Inventions From The Perspective Of Phosita, Rebecca S. Eisenberg

Articles

In this Article, I consider the possibility of giving the USPTO input from currently active technological practitioners in evaluating the obviousness of claimed inventions. Such input could potentially serve three useful functions. First, it could improve the accuracy of USPTO decisionmaking by providing access to the perspective of actual practitioners as to the obviousness of inventions from the perspective of the hypothetical PHOSITA. Second, it could help the USPTO document the evidentiary basis for rejections that rest in part upon tacit knowledge within technological communities. Third, it could provide a quality control mechanism that would improve the credibility of USPTO …

Tender Offers By Controlling Shareholders: The Specter Of Coercion And Fair Price, Adam C. Pritchard

Articles

Taking your company private has never been so appealing. The collapse of the tech bubble has left many companies whose stock prices bordered on the stratospheric now trading at small fractions of their historical highs. The spate of accounting scandals that followed the bursting of the bubble has taken some of the shine off the aura of being a public company-the glare of the spotlight from stock analysts and the business press looks much less inviting, notwithstanding the monitoring benefits that the spotlight purports to confer. Moreover, the regulatory backlash against those accounting scandals has made the costs of being …

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 …

In Defense Of Deference, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.

Public Ruses, James E. Krier, Christopher Serkin

Articles

The public use requirement of eminent domain law may be working its way back into the United States Constitution. To be sure, the words "public use" appear in the document-and in many state constitutions as well, but the federal provision applies to the states in any event-as one of the Fifth Amendment's limitations on the government's inherent power to take private property against the will of its owners. (The other limitation is that "just compensation" must be paid, of which more later.) Any taking of private property, the text suggests, must be for public use. Those words, however, have amounted …

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 …

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?

Tools, Not Rules: The Heuristic Nature Of Statutory Interpretation, Morell E. Mullins Sr.

Law Faculty Scholarship

No abstract provided.

Of Money And Judicial Independence: Can Inherent Powers Protect State Courts In Tough Fiscal Times?, Michael L. Buenger

Kentucky Law Journal

No abstract provided.

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

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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.

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

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Chevron And Preemption, Nina A. Mendelson

Articles

This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …

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 …

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.

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

Scholarly Articles in Law Reviews & Journals

No abstract provided.