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2006

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Articles 211 - 240 of 322

Full-Text Articles in Courts

Checks And Balances: Congress And The Federal Court, Paul D. Carrington Jan 2006

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …

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Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast Jan 2006

Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.

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Courts, Congress, And Public Policy, Part Ii: The Impact Of The Reapportionment Revolution On Congress And State Legislatures, Jeffrey R. Lax, Mathew D. Mccubbins Jan 2006

Courts, Congress, And Public Policy, Part Ii: The Impact Of The Reapportionment Revolution On Congress And State Legislatures, Jeffrey R. Lax, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

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Assessing Chief Justice William Rehnquist, Erwin Chemerinsky Jan 2006

Assessing Chief Justice William Rehnquist, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

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A Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky Jan 2006

A Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

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The Conservative Case For Federalism, Ernest A. Young Jan 2006

The Conservative Case For Federalism, Ernest A. Young

Faculty Scholarship

No abstract provided.

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Developing Trends With The Class Action Fairness Act Of 2005, 40 J. Marshall L. Rev. 115 (2006), Steven M. Puiszis Jan 2006

Developing Trends With The Class Action Fairness Act Of 2005, 40 J. Marshall L. Rev. 115 (2006), Steven M. Puiszis

UIC Law Review

No abstract provided.

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Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford Jan 2006

Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

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The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford Jan 2006

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford

UIC Law Open Access Faculty Scholarship

This Article tests a model of judicial decision making that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of …

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"If The Train Should Jump The Track.. .": Divergent Interpretations Of State And Federal Employment Discrimination Statutes, Alex B. Long Jan 2006

"If The Train Should Jump The Track.. .": Divergent Interpretations Of State And Federal Employment Discrimination Statutes, Alex B. Long

Georgia Law Review

As interpretational issues surrounding federal employment discrimination statutes have become more complex and controversial, there have arisen more opportunities for parallel state anti-discrimination law to jump the track" and take alternative courses. Not surprisingly, when dealing with their own parallel state statutes, a number of state appellate courts in recent years have chosen this course of action. Even where state and federal employment discrimination have not yet taken different paths, the potential for such divergent interpretations of state and federal anti-discrimination law has increased in recent years to the point where we may enter an era not unlike that of …

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Contents Jan 2006

Contents

University of Richmond Law Review

No abstract provided.

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The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, Jason J. Czarnezki Jan 2006

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article tests a model of judicial decisionmaking that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. …

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The 'Failure To Mitigate' Defense In Antitrust, Thom Lambert Jan 2006

The 'Failure To Mitigate' Defense In Antitrust, Thom Lambert

Faculty Publications

The article begins with the premise that any failure to mitigate defense should aim to minimize the sum of three costs: the costs associated with inefficient behavior by defendants, the costs associated with inefficient behavior by plaintiffs, and the administrative costs of claim adjudication. If cost minimization is the goal, then whether a failure to mitigate defense exists, and the content of the antitrust plaintiff’s mitigation requirement, should differ depending on the type of damages the plaintiff is seeking to recover. The bulk of this article discusses how the defense should apply to different damages claims.The article proceeds as follows: …

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Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert Jan 2006

Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert

Faculty Publications

A general definition of exclusionary conduct has become a sort of Holy Grail for antitrust scholars. At present, four proposed definitions appear most promising: (1) conduct that could exclude an equally efficient rival; (2) conduct that raises rivals' costs unjustifiably; (3) conduct that, on balance, impairs consumer welfare by creating market power without providing countervailing consumer benefits; and (4) conduct that makes no economic sense but for its exclusionary effect on rivals.

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Introduction To Vanishing Trial Symposium, John M. Lande Jan 2006

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes …

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Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff Jan 2006

Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff

Faculty Publications

In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily determining …

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Double Jeopardy And Multiple Punishment: Cutting The Gordian Knot, Anne Bowen Poulin Jan 2006

Double Jeopardy And Multiple Punishment: Cutting The Gordian Knot, Anne Bowen Poulin

University of Colorado Law Review

Courts treat as axiomatic that the Double Jeopardy Clause protects against both multiple punishment and successive prosecution. Unfortunately, applying the same rules to both multiple punishment and successive prosecution undermines double jeopardy protection. Instead, protection from multiple punishment should not be treated as a double jeopardy problem. This Article examines how multiple punishment analysis became entangled with successive prosecution protection. After considering the foundation of the axiom that double jeopardy protects against multiple punishment, it concludes that the axiom must be rejected. Multiple punishment analysis should be disentangled from double jeopardy rules governing successive prosecution and double jeopardy should play …

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Jeffersonian Walls And Madisonian Lines: The Supreme Court’S Use Of History In Religion Clause Cases, Mark Hall Jan 2006

Jeffersonian Walls And Madisonian Lines: The Supreme Court’S Use Of History In Religion Clause Cases, Mark Hall

Faculty Publications - Department of History and Politics

In Everson v. Board of Education (1947), Justice Wiley Rutledge observed that '[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.' Scholars and activists argue about the relevance or irrelevance of the Supreme Court’s use of history in general, and the extent to which Justices are good historians. These debates have been particularly furious with respect to the Court’s use of history in religion clause cases. Although broad claims are …

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New British Columbia Legislation: The Court Jurisdiction And Proceedings Transfer Act; The Enforcement Of Canadian Judgments And Decrees Act, Elizabeth Edinger Jan 2006

New British Columbia Legislation: The Court Jurisdiction And Proceedings Transfer Act; The Enforcement Of Canadian Judgments And Decrees Act, Elizabeth Edinger

All Faculty Publications

Enacted in 2003, The Court Jurisdiction and Proceedings Transfer Act' and The Enforcement of Canadian Judgments and Decrees Act were finally proclaimed in force as of 4 May 2006. Both are modeled closely on statutes drafted by the Uniform Law Conference of Canada (ULCC); the commentary that accompanies the uniform statutes will undoubtedly prove very useful in interpreting and applying the British Columbia statutes. Some other provinces have also enacted one or both of these statutes and the case law generated in those jurisdictions will also be of assistance. The ULCC intended the statutes to be complementary. The generous recognition …

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The Dubitante Opinion, Jason J. Czarnezki Jan 2006

The Dubitante Opinion, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

A dubitante (pronounced d[y]oo-bi-tan-tee) opinion indicates that “the judge doubted a legal point but was unwilling to state that it was wrong.” Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion--What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of …

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Introduction: The Hundred-Year Run Of Roscoe Pound, Randall T. Shepard Jan 2006

Introduction: The Hundred-Year Run Of Roscoe Pound, Randall T. Shepard

Indiana Law Journal

Conference of Chief Justices and Conference of State Court Administrators Annual Meeting July 29-August 2, 2006 Indianapolis, Indiana.

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Mapp V. Ohio: The First Shot Fired In The Warren Court's Criminal Procedure 'Revolution', Yale Kamisar Jan 2006

Mapp V. Ohio: The First Shot Fired In The Warren Court's Criminal Procedure 'Revolution', Yale Kamisar

Book Chapters

Although Earl Warren ascended to the Supreme Court in 1953, when we speak of the Warren Court's "revolution" in American criminal procedure we really mean the movement that got underway half-way through the Chief Justice's sixteen-year reign. It was the 1961 case of Mapp v. Ohio, overruling Wolf v. Colorado and holding that the state courts had to exclude illegally seized evidence as a matter of federal constitutional law, that is generally regarded as having launched the so-called criminal procedure revolution.

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Protecting The Rights Of Litigants With Diminished Capacity In The New York City Housing Courts, Jeanette Zelhof, Andrew Goldberg, Hina Shamsi Jan 2006

Protecting The Rights Of Litigants With Diminished Capacity In The New York City Housing Courts, Jeanette Zelhof, Andrew Goldberg, Hina Shamsi

Cardozo Public Law, Policy & Ethics Journal

The article addresses the challenges faced by individuals with mental illnesses or age-related infirmities in navigating the New York Housing Court system. It highlights the need for improved protections, including ADA accommodations and the right to counsel, to ensure equal access and fair proceedings for these vulnerable litigants.

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The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick Jan 2006

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

All Faculty Scholarship

This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …

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Rescuing Judicial Accountability From The Realm Of Political Rhetoric, Charles G. Geyh Jan 2006

Rescuing Judicial Accountability From The Realm Of Political Rhetoric, Charles G. Geyh

Articles by Maurer Faculty

The article examines the threat to judicial independence from political calls for more judicial accountability. The author begins by defining judicial accountability and discussing its purposes before breaking the concept down into three categories: institutional accountability, behavioral accountability, and decisional accountability. This process reveals that in the judicial accountability family, there is but one discrete sub-species, situated in the decisional accountability genus, that does not further accountability's proper purpose and is therefore conceptually problematic: direct political accountability for competent and honest judicial decision-making error that the politicians desire and a serious threat to judicial independence. The critical question becomes one …

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Toward A Limited Right Of Access To Jury Deliberations, Torrence Lewis Jan 2006

Toward A Limited Right Of Access To Jury Deliberations, Torrence Lewis

Federal Communications Law Journal

Jury deliberations receive extensive protection from public examination. These protections make jury deliberations much less accessible to the public than most other governmental deliberations. This Comment examines the constitutional, common law, and statutory protections for jury deliberations and the dangers that these protections seek to prevent. The Author argues that a limited post-verdict right of access to jury deliberations could restore public faith in the jury and could eventually improve the quality of jury deliberations. The Author suggests a possible framework that would provide the public with a limited right of access and still address the primary concerns that led …

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Foreword: Celebrating 100 Years Of Juvenile Court In Minnesota, Paul H. Anderson Jan 2006

Foreword: Celebrating 100 Years Of Juvenile Court In Minnesota, Paul H. Anderson

William Mitchell Law Review

No abstract provided.

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Minnesota Juvenile Courts: Principles Of Excellence For The Next 100 Years Jan 2006

Minnesota Juvenile Courts: Principles Of Excellence For The Next 100 Years

William Mitchell Law Review

No abstract provided.

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Research-Informed Models For Communicating The Value Of Court-Connected Alternative Dispute Resolution For Public Funding, Kevin Dye Jan 2006

Research-Informed Models For Communicating The Value Of Court-Connected Alternative Dispute Resolution For Public Funding, Kevin Dye

Massachusetts Office of Public Collaboration Publications

The purpose of framing the research in the following models is to assist the court and its court-connected mediation programs in their ongoing dialogue with the funding decision-makers in addressing the question: Is state funding of community mediation centers and court ADR generally a worthwhile investment? As a means of setting forth components of an analytic framework, the following simplified financial models are offered to draw out salient aspects of the nature of the investment. The simplified models are employed primarily for the purpose of illustrating the investment in terms of classic financial models familiar to a budget analyst. These …

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Vitality Of Voluntary Guidelines In The Wake Of Blakely V. Washington: An Empirical Assessment, The Articles On Guideline Operation Issues, John F. Pfaff Jan 2006

Vitality Of Voluntary Guidelines In The Wake Of Blakely V. Washington: An Empirical Assessment, The Articles On Guideline Operation Issues, John F. Pfaff

Faculty Scholarship

This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v. Washington. In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear …

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