Courts Commons^™

Demand And Supply Trends In Federal And State Courts Over The Last Half Century, Richard A. Posner

The Journal of Appellate Practice and Process

No abstract provided.

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

The Supreme Court, Stare Decisis, And The Role Of Judicial Deference In Patent Claim Construction Appeals, David Krinsky

ExpressO

The U.S. Court of Appeals for the Federal Circuit reviews de novo the rulings of district judges about patent claim construction. This state of affairs—surprising to many lawyers who are unfamiliar with patent law—is controversial because claim construction is one of the most important and vexing aspects of patent litigation, necessary to the vast majority of patent cases, and because it is probably responsible, at least in part, for the high reversal rate in patent cases. Commentary by both scholars and judges about the standard of review in patent cases has centered on whether the Federal Circuit should change it …

Reverse Bifurcation, Dru Stevenson

ExpressO

Reverse bifurcation is a trial procedure in which the jury determines damages first, before determining liability. The liability phase of the trial rarely occurs, because the parties usually settle once they know the value of the case. This procedure is already being used in thousands of cases – nearly all the asbestos and Fen-phen cases – but this is the first academic article devoted to the subject. This article explains the history of the procedure and analyzes why it encourages settlements, simplifies jury instructions, and produces better outcomes for the parties.

The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat

ExpressO

This article seeks to fill a major gap in modern First Amendment scholarship by providing a comprehensive examination of a new form of doctrinal analysis that has emerged over the past two decades in free speech law: the “intermediate scrutiny” test. This is the first major scholarly examination of this area of law in over twenty years, and identifies a number of important and problematic developments that have occurred during that time. The article proceeds in three phases. First, I provide a historical description of the emergence of the new “intermediate scrutiny” test since the mid-1980s, through a careful examination …

Flipping A Coin: A Solution For The Inherent Unreliability Of Eyewitness Identification Testimony, Noah A. Clements

ExpressO

By most accounts, mistaken eyewitness identification is the leading cause of wrongful convictions in the U.S. As DNA evidence frees ever more people wrongfully convicted on the basis of mistaken identification testimony, it is worth asking: “What about those cases where there is no DNA evidence?” Study after study shows that eyewitness identifications are unreliable. Courts pay lip service to the concept of reliability, but even after identifications are tainted by suggestion, very few courts actually exclude this tainted identification testimony.

And identifications are powerful. Jurors tend to believe identification testimony more than any other kind. And judges are people …

The Foundations Of Federalism: An Exchange, Randall P. Bezanson

ExpressO

Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

An Emerging Uniformity For International Law, David H. Moore

ExpressO

The status of international law in the U.S. legal system has been hotly contested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court’s decision in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), stoked the debate. In Sosa’s wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law.

This Article asserts that Sosa has been both misperceived …

Just Say "No Fishing": The Lure Of Metaphor, Beth Thornburg

ExpressO

The phrase “fishing expedition” is widely used in popular culture and in the law. In the case of metaphorical “fishing” in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of “fishing” also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of …

The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat

ExpressO

This article seeks to fill a major gap in modern First Amendment scholarship by providing a comprehensive examination of a new form of doctrinal analysis that has emerged over the past two decades in free speech law: the “intermediate scrutiny” test. This is the first major scholarly examination of this area of law in over twenty years, and identifies a number of important and problematic developments that have occurred during that time. The article proceeds in three phases. First, I provide a historical description of the emergence of the new “intermediate scrutiny” test since the mid-1980s, through a careful examination …

The Supreme Court And Same-Sex Marriage: A Prediction , Robert E. Riggs

Brigham Young University Journal of Public Law

No abstract provided.

The Supreme Court And Affirmative Action In Public Education, With Special Reference To The Michigan Cases, Philip C. Aka

Brigham Young University Education and Law Journal

No abstract provided.

Getting It Right By Getting It Wrong: How The Supreme Court Helped Healthcare Reform By Incorrectly Applying The Standard Of Review In Pharmaceutical Research And Manufacturers Of America V. Walsh, Brian Y. Furuya

Brigham Young University Journal of Public Law

No abstract provided.

Cheater's Proof: Excessive Judicial Deference Toward Educational Testing Agencies May Leave Accused Examinees No Remedy To Clear Their Names, Aron E. Goldschneider

Brigham Young University Education and Law Journal

No abstract provided.

John Paul Stevens, Human Rights Judge, Diane Marie Amann

Scholarly Works

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …

Gatekeeping After Gilbert: How Lawyers Should Address The Court's New Emphasis, Brian Benner, Ronald L. Carlson

Popular Media

In the world of modern trials, expert witnesses are the coin of the realm. Lawyers know that most of the time, experts are case-breakers. Their demeanor, knowledge, and presentation ability are key qualities. Accordingly, their persuasive effect on modern lay jurors makes it incumbent on judges to ensure that an expert's opinions are appropriately directed. That means not allowing an economist to testify about the medical dynamics of bone disease, for example.

The Judgment-Proof Society, Stephen G. Gilles

Washington and Lee Law Review

No abstract provided.

How Children Are Heard In Child Protective Proceedings, In The United States And Around The World In 2005: Survey Findings, Initial Observations, And Areas For Further Study, Jean Koh Peters

Nevada Law Journal

No abstract provided.

Giving A Voice To The Voiceless: Enhancing Youth Participation In Court Proceedings, Miriam Aroni Krinsky, Jennifer Rodriquez

Nevada Law Journal

No abstract provided.

A Place At The Table: Creating Presence And Voice For Teenagers In Dependency Proceedings, Catherine J. Ross

Nevada Law Journal

No abstract provided.

Contra Proferentem: The Allure Of Ambiguous Boilerplate, Michelle E. Boardman

Michigan Law Review

Bad boilerplate can shake one' s faith in evolution; not only does it not die away, it multiplies. The puzzle is why. Much of boilerplate is ambiguous or incomprehensible. This alienates consumers and is i ncreasingly punished by courts construing the language against the drafter. There must, therefore, be some hidden allure to ambiguous boilerplate. The popular theory is trickery: drafters lure consumers in with promising language that comes to nothing in court. But this trick would require consumers to do three things they do not do-read the language, understand it, and take comfort in it. There is a hidden …

Fixing The Constable's Blunder: Can One Trial Judge In One County In One State Nudge A Nation Beyond The Exclusionary Rule?, H. Mitchell Caldwell

BYU Law Review

No abstract provided.

Judicial Balancing In Times Of Stress: Comparing The American, British, And Israeli Approaches To The War On Terror, Michel Rosenfeld

Cardozo Law Review

No abstract provided.

Customized Litigation: The Case For Making Civil Procedure Negotiable, Michael Moffitt

ExpressO

This article calls for a complete re-conceptualization of the procedural rules governing modern litigation. Specifically, it suggests that litigants ought to be given the opportunity to customize their litigation experience—that procedural rules should be treated as default rules from which parties can mutually negotiate deviations. Although they are not typically labeled as such, modest examples of customization already occur both within the rules of civil procedure and extra-judicially. This article argues that much greater tailoring is possible, and it suggests three criteria for assessing how much deviation from the current baseline is tolerable. This article argues that a judicial system …

Solel Boneh Building And Infrastructure Ltd 2. Aryeh Insurance Company Ltd V. Estate Of The Late Ahmed Abed Alhamid Deceased, Aharon Barak, Yonatan Adiel, Mishael Cheshin, Eliezer Rivlin, Asher Grunis, Dorit Beinisch, Miriam Naor

Translated Opinions

Facts: Ahmed Alhamid died in a work accident. His estate and dependents (the respondents) filed a claim against the appellants for compensation. During the proceedings, the respondents reached a settlement with the appellants, according to which the appellants would pay a sum of NIS 100,000 to the respondents. This settlement was given the force of a court judgment on 22 February 2004. Three weeks later, the Supreme Court gave its judgment in Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter ([2004] IsrLR 101). In that judgment the Supreme Court held that if a person …

Precedent And Procedural Due Process: Policymaking In The Federal Courts, Sarah A. Maguire

ExpressO

No abstract provided.

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Toward A Federal Common Law Of Bankruptcy: Judicial Lawmaking In A Statutory Regime, Adam J. Levitin

ExpressO

Bankruptcy is a statutory system, yet it is replete with practices for which there is no direct authorization in the Bankruptcy Code. This article argues that the authorization for judicial creation of bankruptcy law beyond the provisions of the Code has been misidentified as the equity powers of bankruptcy courts. This misidentification has led courts to place inappropriate statutory and historical limitations on non-Code practices because of discomfort with unguided equitable discretion.

Both the statutory and historic limitations are problematic. The statutory authorization for the bankruptcy courts’ equitable powers appears to have been repealed by what one judge has called …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …