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2005

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Articles 241 - 265 of 265

Full-Text Articles in Courts

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Tracey E. George, Chris Guthrie Jan 2005

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).

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Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punishment, Nancy J. King Jan 2005

Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punishment, Nancy J. King

Vanderbilt Law School Faculty Publications

Prosecutors control statutory ranges by selecting charges. In addition, prosecutors decide whether to use or forego special sentencing statutes that carry mandatory minimum penalties higher than the maximum Guidelines sentence that would otherwise apply to the defendant's conduct, as well as statutes that authorize a sentence lower than the minimum Guidelines sentence that would otherwise apply ("safety valve," "substantial assistance," and Rule 35 reductions). By creating these additional provisions and then removing any effective judicial oversight of their application, Congress has expanded the opportunities for prosecutors to decide when to opt out of the national Guidelines and when to abide …

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Crawford V. Washington: The End Of Victimless Prosecution?, Andrew King-Ries Jan 2005

Crawford V. Washington: The End Of Victimless Prosecution?, Andrew King-Ries

Faculty Law Review Articles

Domestic violence offenses are difficult to prosecute because the batterer's actions often make the victim unavailable to testify. Since the mid- 1990s, prosecutors have pursued "victimless" prosecutions' to combat the problem.2 Victimless prosecutions seek to introduce reliable evidence without the victim's in-court testimony, often to maintain the victim's safety or to avoid re-victimizing the victim.3 The victimless prosecution is based largely on the admission of hearsay statements that a victim makes to 911 operators, police officers, doctors, nurses, paramedics, and social workers.4 Victimless prosecution has been a highly successful tool in society's efforts to eradicate domestic violence and it is …

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Empirically Testing Dworkin's Chain Novel Theory: Studying The Path Of Precedent, Stefanie A. Lindquist, Frank B. Cross Jan 2005

Empirically Testing Dworkin's Chain Novel Theory: Studying The Path Of Precedent, Stefanie A. Lindquist, Frank B. Cross

Scholarship@WashULaw

In this article, Professors Lindquist and Cross empirically study the effect of precedent on judicial decision-making. The framework for their analysis is Ronald Dworkin’s “chain novel” metaphor, an influential theory of the role of precedent whose validity has not previously been empirically tested. The chain novel metaphor suggests that the judicial use of precedent can be likened to a group of authors writing a novel seriatim, in which the accumulation of chapters increasingly constrains the choices and freedom of subsequent writers. Precedent is one of the most important areas of legal research, but currently there is no dominant working theory, …

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Time Is Money--But Is It Compensable Work? An Analysis Of Ibp, Inc. V. Alvarez, Barbara J. Fick Jan 2005

Time Is Money--But Is It Compensable Work? An Analysis Of Ibp, Inc. V. Alvarez, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). The issues raised in that case were: Is the time employees spend walking and waiting in line during the process of donning and doffing required safety equipment considered compensable work such that employers must pay them for that time?

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Book Review Of Steven Harmon Wilson’S The Rise Of Judicial Management In The U.S. District Court, Southern District Of Texas, Edward A. Purcell Jr. Jan 2005

Book Review Of Steven Harmon Wilson’S The Rise Of Judicial Management In The U.S. District Court, Southern District Of Texas, Edward A. Purcell Jr.

Other Publications

No abstract provided.

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When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel Jan 2005

When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel

Faculty Articles

The decision as to who has the authority to bring a matter up for resolution before a criminal court is one of the most basic decisions a system of criminal adjudication must make. Despite - or perhaps because of - the elemental nature of this structural matter, historians and scholars of criminal procedure have thus far offered a startling paucity of evidence as to the history and policy consequences of different docket control regimes. This article offers the first comprehensive examination of this issue, rescuing the history of criminal court calendar control from the dustbin of history and grappling in …

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The Case Of The Little Yellow Cuban Biplane: Can Interest Analysis Reconcile Conflicting Provisions In Federal Statutes And International Treaties?, Diane Lourdes Dick Jan 2005

The Case Of The Little Yellow Cuban Biplane: Can Interest Analysis Reconcile Conflicting Provisions In Federal Statutes And International Treaties?, Diane Lourdes Dick

Faculty Articles

This article analyzes conflicts that arise under international agreements that define and protect foreign ownership interests in civil aircraft, on the one hand, and domestic laws that allow Americans to bring suit against state sponsors of terrorism, on the other hand. Finding that courts often perform concealed interest analyses under the guise of mechanical application of canons of construction, this article recommends a comparative impairment interest analysis approach to resolving this and related conflicts.

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Evaluating Brady Error Using Narrative Theory: A Proposal For Reform, John B. Mitchell Jan 2005

Evaluating Brady Error Using Narrative Theory: A Proposal For Reform, John B. Mitchell

Faculty Articles

When the United States Supreme Court granted certiorari in Old Chief v. United States, the Court examined Federal Rule of Evidence 403 in light of a defense offer to stipulate to aspects of the proffered prosecution evidence, purportedly to lessen their prejudicial impact. At the core of the opinion rests the validation of a theory born from such disparate fields as Law and Literature, Sociology, and Narrative Theory. This article argues that, though it was not on the proverbial radar screen of the Court when it decided Old Chief, narrative theory provides the most effective tool available for assessing prejudice …

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The Documentary History Of The Supreme Court Of The United States. 1789-1800. Vol. 7, Cases: 1796-1797, George Van Cleve Jan 2005

The Documentary History Of The Supreme Court Of The United States. 1789-1800. Vol. 7, Cases: 1796-1797, George Van Cleve

Faculty Articles

In this review, the author expresses praise for DHSC 7, a document that covers court cases from 1796 to 1797. It highlights various particular cases while noting how effectively they are examined. Ultimately, the review advocates that students of legal history should consider the DHSC 7.

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The Drafting Process For A Hague Convention On Jurisdiction And Judgements With Special Consideration Of Intellectual Property And E-Commerce, Knut Woestehoff Jan 2005

The Drafting Process For A Hague Convention On Jurisdiction And Judgements With Special Consideration Of Intellectual Property And E-Commerce, Knut Woestehoff

LLM Theses and Essays

This thesis is a study of the drafting process for the Hague Convention on Jurisdiction and Judgements. It will be demonstrated why the original goal of a broad treaty was given up in favor of a draft convention that only applies in international cases to exclusive choice of court agreements concluded in civil and commercial matters in the business-to-business setting. The reader will get an understanding of how the participating nations and interest groups influenced the negotiations and modified the outcome of the discussions. Special consideration was given to the matters of intellectual property and e-commerce, which were nearly completely …

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The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin Jan 2005

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin

All Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary's loss of focus on the core function of trying jury cases; the business community's loss of interest in jury adjudication (opting out of the legal system altogether in favor of arbitration); Congress's marginalizing the district court judiciary; and the …

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Introduction, David J. Seipp Jan 2005

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

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Grappling With The Meaning Of 'Testimonial', Richard D. Friedman Jan 2005

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."

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Appellate Court Appointments In The Second Bush Administration, Carl W. Tobias Jan 2005

Appellate Court Appointments In The Second Bush Administration, Carl W. Tobias

Law Faculty Publications

Prof. Tobias discusses the renominations by President George W. Bush of twelve candidates for the United States courts of appeals, all previously opposed by Democratic senators during the President's initial term. Likely reasons and predicted consequences for these renominations are offered.

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Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck Jan 2005

Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck

Faculty Scholarship

No abstract provided.

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Decline Of Title Vii Disparate Impact: The Role Of The 1991 Civil Rights Act And The Ideologies Of Federal Judges, Michael J. Songer Jan 2005

Decline Of Title Vii Disparate Impact: The Role Of The 1991 Civil Rights Act And The Ideologies Of Federal Judges, Michael J. Songer

Michigan Journal of Race and Law

This study employs various statistical techniques to test the efficacy of the 1991 Civil Rights Act in moderating the highly restrictive disparate impact regime imposed by Wards Cove, and to evaluate the hypothesis that political ideology should be a more powerful predictor of case outcomes following the 1991 Act. Part I of the paper describes the evolution of disparate impact doctrine from 1971 to the present. Part II analyzes data from randomly selected disparate impact cases brought by African American plaintiffs and finds that the current disparate impact doctrine emanating from the 1991 Civil Rights Act dramatically decreases the likelihood …

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Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik Jan 2005

Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik

Cardozo Law Review

How ought a democracy select its judges? Critics in Canada, England, and Wales invoke the democratic values of accountability and transparency to call for a diminution in prime ministerial control over judicial appointments. In the United States, Article III of the Constitution's text directs that the President nominate - with the advice and consent of the Senate - life-tenured federal judges. Bitter conflicts about particular nominees have produced many proposals for changes of that system. And in those states that rely on various forms of judicial election, concerns focus on funding and campaigning. In short, both globally and locally, democracies …

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Altmann V. Austria And The Retroactivity Of The Foreign Sovereign Immunities Act, Carlos Manuel Vázquez Jan 2005

Altmann V. Austria And The Retroactivity Of The Foreign Sovereign Immunities Act, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Republic of Austria v. Altmann, the U.S. Supreme Court decided that the Foreign Sovereign Immunities Act of 1976 (FSIA) generally applies to claims based on events that occurred before the Statute's enactment. To decide the retroactivity question, the Court had occasion to consider the essential nature of foreign sovereign immunity: is it merely a procedural immunity providing foreign states with present protection from the inconvenience and indignity of a lawsuit, or is it something more than that? The Court's examination of this question was brief and unsatisfying. Its analysis would have been enriched by a recognition that foreign …

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Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux Jan 2005

Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux

Publications

The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …

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Technology-Augmented Courtrooms: Progress Amid A Few Complications, Or The Problematic Interrelationship Between Court And Counsel, Fredric I. Lederer Jan 2005

Technology-Augmented Courtrooms: Progress Amid A Few Complications, Or The Problematic Interrelationship Between Court And Counsel, Fredric I. Lederer

Faculty Publications

No abstract provided.

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Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young Jan 2005

Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young

Faculty Scholarship

No abstract provided.

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Colored Speech: Cross Burnings, Epistemics, And The Triumph Of The Crits?, Guy-Uriel Charles Jan 2005

Colored Speech: Cross Burnings, Epistemics, And The Triumph Of The Crits?, Guy-Uriel Charles

Faculty Scholarship

This Essay examines the Court's recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court's conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas's active participation as a matter of epistemic authority and epistemic deference.

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Judging The Law Of Politics, Guy-Uriel Charles Jan 2005

Judging The Law Of Politics, Guy-Uriel Charles

Faculty Scholarship

In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, "The Supreme Court and Election Law," against the recent work of a leading structuralist, Professor Richard Pildes' recent Foreword to the Harvard Law Review. I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship …

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Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty Jan 2005

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

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