Courts Commons^™

Indecent Standards: The Case Of U.S. Versus Weldon Angelos, Eva Nilsen

Faculty Scholarship

In today's highly punitive culture, perhaps Weldon Angelos' fifty-five-year sentence does not seem unusual. He's a 25-year-old man who was convicted in December 2003 of selling marijuana, possessing firearms while drug dealing, and money laundering. ³ The facts proven at trial are that on three occasions in June and July, 2002, Angelos sold eight one-ounce bags of marijuana for $350 each to a government informant. ⁴ The purchaser testified that a firearm was visible during two of these drug sales.⁵ Police seized another gun from Angelos' home five months later pursuant to a warrant.⁶ At no time was …

The Endorsement Court, Jay D. Wexler

Faculty Scholarship

Since 1986, when William H. Rehnquist was confirmed as the sixteenth Chief Justice of the United States, the Supreme Court has virtually rewritten the entire law regarding the First Amendment’s Religion Clauses. With respect to the Free Exercise Clause, the Court, in its 1990 Employment Division v. Smith decision, reversed years of jurisprudence and held that the First Amendment does not entitle religious believers to exemptions from neutral laws of general application. On the Establishment Clause side, the Court recently overturned a series of its earlier decisions on its way to creating a body of law quite amenable to the …

Equal Protection Unmodified: Justice John Paul Stevens And The Case For Unmediated Constitutional Interpretation, Andrew Siegel

Faculty Articles

In one of his first major writings on the United States Supreme Court, Justice John Paul Stevens famously argued that "[t]here is only one Equal Protection Clause." In the ensuing three decades, that quotation has become something of a battle cry for commentators critical of tiered equal protection review, many of whom not only seek to dismantle tiered equal protection scrutiny but also to replace it with an alternative (usually more complicated) doctrinal super-structure. This Article argues that his association with these commentators has partially obscured Justice Stevens's unique equal protection methodology. While he shares (indeed inspired) their critique of …

The Principled Executioner: Capital Juries’ Bias And The Benefits Of True Bifurcation, Susan D. Rozelle

Faculty Articles

Capital jurors are "death-qualified," or asked to verify at voir dire that their views on the death penalty would not prevent them from serving impartially. Ironically, death qualification itself creates juries unfairly biased toward guilt and death. Empirical investigation has demonstrated this skewing effect for over fifty years, and with the release of the recent Capital Jury Project data, any doubts on this score surely have been laid to rest. Efforts to ameliorate death qualification's prosecutorial bias have been hamstrung, however, by statutory unitary jury requirements like the one found in the Federal Death Penalty Act. Statutes like these, which …

The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel

Faculty Articles

Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized 'federalism, " an agenda-driven "conservatism," and a constitutionally fixated 'Judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this Article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility toward the institution of litigation and its concomitant skepticism as to the ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes a pointillist …

Schooling Miranda: Policing Interrogation In The Twenty-First Century Schoolhouse, Paul Holland

Faculty Articles

This article directs courts to base their application of Miranda on an explicit and contextually sound consideration of the relationships among students, officers and administrators. This article argues that Miranda applies when a state agent questions a student under circumstances in which it would be reasonable for the student to believe that she is the subject of law enforcement authority, regardless of whether a law enforcement officer conducts the questioning. The determination that Miranda applies is not tantamount to a decision that the student was in custody. It is merely a prelude to the custody inquiry. This article does not …

Linguistics As A Knowledge Domain In The Law, Janet Ainsworth

Faculty Articles

This article focuses on the use of linguistic expertise by trial courts to aid in fact-finding. It identifies many of the ways the legal system has been enriched by donations from linguistic scholarship. In addition, it discusses the underutilized-at-present use of linguistic knowledge by appellate courts as a tool for crafting and applying doctrinal rules. Whereas courts have adopted economics analysis in determining appropriate legal rules, linguistic science has been neglected. Linguistic predictions are more testable and falsifiable than economic predictions. Linguistic research can be useful—particularly in the areas of comprehensibility of texts and resolving textual ambiguity. Indeed, legislatures and …

The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel

Faculty Articles

Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized "federalism," an agenda-driven "conservatism," and a constitutionally fixated "judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility towards the institution of litigation and its concomitant skepticism as to ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes a pointillist approach, commenting …

The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark

Faculty Articles

This article discusses the controversial right-to-die law, and the prominent cases surrounding it. It critically outlines various case outcomes with respect to the law, and discusses seminal development the law has seen.

The Constitutional Validity Of Circuit Court Opinions Limiting The American Right To Sexual Privacy, Shelly Elimelekh

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Statutory Caps And Judicial Review Of Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Trials & Errors: The Rights Of The Korean Comfort Women And The Wrongful Dismissal Of The Joo Case By The District Of Columbia Federal Courts, L. David Nefouse

Cardozo Journal of Equal Rights & Social Justice

The article argues that the U.S. courts erred in dismissing the Joo case, which sought justice for Korean Comfort Women against Japan. It contends that the dismissals were based on flawed legal analyses, particularly regarding sovereign immunity under the Foreign Sovereign Immunities Act (FSIA) and the political question doctrine. The author advocates for the women's right to a judicial hearing under U.S. and international law, emphasizing the need for accountability for war crimes and crimes against humanity.

What's The Hold-Up? Making The Case For Lifetime Orders Of Protection In New York State, Jennifer Rios

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the implementation of lifetime or extended orders of protection in New York State to better safeguard domestic violence victims. It highlights the limitations of the current legal framework, which requires victims to repeatedly seek renewals of protective orders, and argues that longer or indefinite orders would reduce trauma and enhance safety. The analysis draws on comparative examples from states like New Jersey and California to support its proposal for stronger legal measures.

Homer Simpson Meets The Rule Against Perpetuities: The Controversial Use Of Pop-Culture In Legal Writing Pedagogy, Louis N. Schulze Jr.

Faculty Publications

Imagine that you have returned to your first year of law school. In your legal writing course, you are required to finish the year with an extensive brief analyzing a legal problem. After months in your doctrinal courses dealing with mind-bending legal issues such as liquidated damages, substantive due process, felony murder, personal jurisdiction, and shifting executory interests, you are ready to sink your teeth into a challenging legal writing assignment. You want to show your stuff and prove that your writing is law review caliber. Your assignment starts as follows: Greenacre is a parcel of land bounded on three …

Sanchez-Llamas V. Oregon And Article 36 Of The Vienna Convention On Consular Relations: The Supreme Court, The Right To Consul, And Remediation, Mark J. Kadish, Charles C. Olson

Michigan Journal of International Law

This Article analyzes the Sanchez-Llamas decision and attempts to ascertain its impact on future Article 36 litigation.

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 …

State Convicts And Federal Courts: Reopening The Habeas Corpus Debate, Larry Yackle

Faculty Scholarship

I know what you are thinking. Of all the things that can conceivably happen in this field, the least likely (the very least likely) is that Congress will take a fresh look at federal habeas corpus for state prisoners. It was only in 1996 that Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA),' which ostensibly "reformed" the scheme by which prisoners employ federal habeas to challenge state criminal convictions or sentences. 2 Passing a bill of this magnitude is no small feat. Once such legislation receives approval from both houses of Congress and the President, no one has …

The Liberal Legacy Of Bush V. Gore, David Cole

Georgetown Law Faculty Publications and Other Works

This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a …

Solicitors General Panel On The Legacy Of The Rehnquist Court, Seth P. Waxman, Walter E. Dellinger Iii, Maureen Mahoney, Theodore Olson, Drew S. Days Iii

Georgetown Law Faculty Publications and Other Works

All of us who are speaking probably share the same giddy feeling in front of a microphone with no red light. For years, my daughter told people that the greatest threat to Western civilization was her father at a podium without a red light. Before becoming Solicitor General, I spent my career as a trial lawyer, arguing only a few appeals. I found this red light tradition a little peculiar. More often than not, timers and lights in courts of appeals are viewed as advisory at best. I've had arguments where ten minutes were allocated per side, and yet argument …

Courts Of Limited Jurisdiction In A Post-Transition Cuba, Matias F. Travieso-Diaz, Armando A. Musa

Vanderbilt Journal of Transnational Law

Cuba's eventual transition to a free-market society will likely be accompanied by a flood of litigation in areas such as property rights, privatization of state-owned enterprises, and human rights violation claims. Courts of limited jurisdiction should be established to hear these specialized matters and alleviate the burden on regular courts. As the transition unfolds, there will also be a need to create specialized tribunals to handle disputes in areas such as taxation, bankrtupcy, and intellectual property. The creation of the various courts of limited jurisdiction will have to be supported by creative strategies for retraining existing judges, training new ones, …

Who's Afraid Of The Big Bad Wolf? The International Criminal Court As A Weapon Of Asymmetric Warfare, W. C. Austin

Vanderbilt Journal of Transnational Law

The United States is engaged in a war on terror against enemies who wage "asymmetric war" through terrorism, media manipulation, and "law-fare"---exploiting judicial processes to achieve political or military objectives.

This Article explores whether the fledgling International Criminal Court (ICC) could eventually be exploited by these groups as a tool of asymmetric "law-fare." It briefly traces the history of the ICC and recounts why the United States opposes the Court. Examining the methods of asymmetric war, the Authors then explore whether the ICC could be exploited by future asymmetric warriors.

The Authors describe three asymmetric methods that could be used …

U.S. Military Courts And The War In Iraq, Michael J. Frank

Vanderbilt Journal of Transnational Law

Throughout its history, the United States has frequently entrusted to military courts the task of prosecuting insurgents and terrorists during instances of military occupation.

Instead of carrying on this tradition in Iraq, the United States created the Central Criminal Court of Iraq (CCCI) and entrusted a band of Iraqi judges with this task. Infected with corruption, nationalism, tribal loyalties, and anti-U.S. animus, this court has repeatedly thwarted the United States by acquitting or only lightly punishing Iraqi terrorists. Thus, the terrorists have learned that they face an excellent chance of acquittal in the CCCI, or if per chance they are …

How Should A Court Deal With A Primary Question That The Legislature Seeks To Avoid?, Gidon Sapir

Vanderbilt Journal of Transnational Law

Legislative avoidance of principled decisions on substantive questions by transferring the decision-making task to the executive branch, is a frequent scenario. The legislature does this by way of either express or hidden delegation, i.e., by using ambiguous wording that on its face only requires interpretation but which in fact requires a substantive decision on the matter at stake. The Israeli legislature resorted to the hidden delegation tactic to avoid the adoption of a substantive decision in the dispute over the question of who is a Jew--a dispute that has divided Israeli society and World Jewry (especially its U.S. component) since …

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Legal Approaches And The Contributions Of Case Law, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

"Reasonably Predictable:" The Reluctance To Embrace Judicial Discretion For Substantial Assistance Procedures, India Geronimo Thusi

Articles by Maurer Faculty

This Comment focuses on the nuances of post-Booker cooperation departures and sentence variances. Section 5K1.1 of the Guidelines governs the provision of cooperation, or substantial assistance, departures. This provision was the primary method for defendants to receive cooperation departures prior to Booker. The section 5K1.1 provision allowed substantial assistance departures where the prosecution actually benefited from the defendant’s cooperation.

First, Part I.A of this Comment will provide an overview of the original goals of the Sentencing Commission and the section 5K1.1 substantial assistance provision. Part I.B of the Comment summarizes United States v. Booker and its impact on cooperation departures. …

The Common Law Of England In Virgina From 1776 To 1830, J. Thomas Wren

Jepson School of Leadership Studies articles, book chapters and other publications

The Virginia Court of Appeals embraced, on the whole, the English legal heritage, despite the violent separation from Great Britain in 1776. This loyalty to English precedents was an illustration of the conservative tenor of the Revolution in Virginia. The English common law continued to be revered because it was perceived to be a bulwark of English, and hence American, liberty. Adherence to English precedent also maintained stable rules of law, which in turn protected existing property rights. At the same time, however, the Court of Appeals was not slavishly devoted to the common law, and the court's departures from …

Age And Tenure Of The Justices And Productivity Of The U.S. Supreme Court: Are Term Limits Necessary?, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

This Article examines the relationship between the productivity of the U.S. Supreme Court and the age and tenure of the Supreme Court Justices. The motivation for this Article is the Supreme Court Renewal Act of 2005 (SCRA) and other recent proposals to impose term limits for Supreme Court Justices. The authors of the SCRA and others suggest that term limits are necessary because, inter alia, increased longevity and terms of service of the Justices have resulted in a decline in the productivity of the Court as measured by the number of cases accepted for review and the number of opinions …

Clauses Not Cases, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Clauses Not Cases is a Response to Robert Post and Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006.

In Questioning Justice, Robert Post and Reva Siegel make three claims. First, that the Constitution authorizes the Senate to rest its judgement, in part, on the constitutional philosophy of nominees to the Supreme Court; second, that this practice is justified on grounds of democratic legitimacy; and third, that it is best implemented by asking nominees “to explain the grounds on which they would have voted in past decisions of the …

The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay advances a formalist conception of constitutional stare decisis. The author argues that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework--a revival of formalist ideas in legal theory that he calls "neoformalism" to distinguish his view from the so-called "formalism" caricatured by the legal realists (and from some other views that are called "formalist").

In Part II, The Critique of Unenumerated Constitutional Rights, the author sets the stage by …