Courts Commons^™

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.

Access To Justice And The Evolution Of Class Action Litigation In Australia, Camille Cameron, Bernard Murphy

Articles, Book Chapters, & Popular Press

The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class …

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

Law Faculty Scholarship

No abstract provided.

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 …

We Really (For The Most Part) Mean It!, Richard D. Friedman

Articles

I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …

Courts, Congress, And Public Policy, Part I: The Fda, The Courts, And The Regulation Of Tobacco, Jeffrey R. Lax, Mathew D. Mccubbins

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.

Cumulative Supplement To Jurisdiction In Civil Action, Wendy Collins Perdue

Law Faculty Publications

Cumulative supplement to Jurisdiction in Civil Action Third Edition.

Viewpoint: Legislating Without Deliberation, Carl W. Tobias

Law Faculty Publications

No abstract provided.

Third Judicial Circuit Of Michigan Jury System Assessment, Paula Hannaford-Agor

Faculty Publications

In November 2005, the State Court Administrator's Office (SCAO) contracted with the National Center for State Courts (NCSC) to assess the qualification and summoning procedures used by the Third Circuit Court (Wayne County) to identify procedural and operational factors that might contribute to the disparity in minority populations in its jury pool and to make recommendations to improve the representation of those minorities. To conduct this assessment, the NCSC collected data about every stage of the jury management process in 2004 and 2005.

In this report, the NCSC makes eight recommendations to the Third Circuit to address the procedural and …

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 …

Beyond Coercion: Justice Kennedy's Aversion To Animus, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

In evaluating the constitutionality of religious displays, Justice Kennedy adheres to the coercion test. A crèche on the courthouse steps is acceptable because it does not coerce anyone to support or participate in a religious exercise. He rejects the endorsement test, which asks whether the display makes reasonable nonadherents feel like outsiders, finding it to be “flawed in its fundamentals and unworkable in practice.” Yet in the free exercise context, Kennedy has focused on whether a community shows hostility to minority faiths, and his opinions in Romer and Lawrence stress that legislatures acted unconstitutionally in showing animus to gays. Suppose …

The Story Of Upjohn Co. V. United States: One Man's Journey To Extend Lawyer-Client Confidentiality, And The Social Forces That Affected It, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The attorney-client privilege protects information a client provides an attorney in confidence for the purpose of securing legal advice. But suppose the client is not a person but a corporation and can only speak through its agents and employees. What then are the contours of the privilege? If the corporation's attorney asks an employee for information relating to pending litigation or other legal matters, is the conversation privileged? Some courts said that no communications to a corporate attorney were privileged unless they came from members of the corporate control group, loosely those people who had authority to direct the attorney's …

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer

Faculty Publications

Courts have been evaluating the issue of personal jurisdiction based on Internet or "network-mediated" contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appropriate. Unfortunately, the circuit approaches-which emphasize a Web site's "interactivity" and "target audience" -are flawed because they are premised on an outdated view of Internet activity as uncontrollably ubiquitous. This view has led courts to depart from traditional jurisdictional analysis and impose elevated and misguided jurisdictional standards. This article argues that courts should reinstitute …

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

Publications

This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

Publications

No abstract provided.

A Tragedy Of The Common: The Common Interest Rule, Its Common Misuses, And An Uncommon Solution, Nicole Garsombke

Georgia Law Review

Almost every state allows some form of the common interest rule, which protects communications and documents exchanged between attorney, client, and certain third parties from waiver of the attorney-client privilege. This Note is a critique of two important exceptions to privilege waiver, the common interest and coclient rules, and discusses the rationales and justifications for the exceptions, scenarios to which the exceptions apply, and other confusing elements of courts' applications and interpretations.An examination of the common interest and coclient rules in Georgia is provided to give a particular case study of the development and use of these two exceptions. Finally, …

The Future Of The Lemon Test: A Sweeter Alternative For Establishment Clause Analysis, Marcia S. Alembik

Georgia Law Review

For over three decades the Supreme Court has applied the three-pronged Lemon test to determine whether state actions violate the Establishment Clause. While the Lemon test remains the most widely accepted test for Establishment Clause analysis,the recent Supreme Court decisions of Van Orden v. Perry and McCreary County v. ACLU of Kentucky have highlighted the Court's ongoing unrest with its application. Although attempts at total replacement of the test have thus far proved unsuccessful, modifications and alternatives to the test and its individual prongs are continually introduced and applied. The Court's lack of a consistent, definite test for Establishment Clause …

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

Georgia Law Review

Sovereigns, like individuals, must sometimes make commitments that limit their freedom of action in order to accomplish their goals. Scholars have observed that constitutional arrangements can, by restricting a sovereign's power, enable the sovereign to make such commitments. The opposite, however, can also be true: constitutional arrangements can and do impede sovereign commitment by entrenching inalienable governmental powers and immunities. This Article explores the nature and origins of the commitment problems that sovereigns face, and the role of courts in solving such problems. It begins by setting forth an analytical distinction between effective and persuasive commitments. Effective commitments are made …

The Swift, Silent Sword Hiding In The (Defense) Attorney's Arsenal: The Inefficacy Of Georgia's New Offer Of Judgment Statute As Procedural Tort Reform, Merritt E. Mcalister

Georgia Law Review

Offer of judgment provisions, initially creatures of state law but codified in 1938 as Rule 68 of the Federal Rules of Civil Procedure, are neither widely used nor widely understood. Both federal and state offer of judgment rules operate to penalize a plaintiff who fails to accept, in light of the ultimate judgment, a reasonable settlement offer. Scholars have often criticized the federal rule's minimal impact as a tool to encourage settlement, and several states, including Georgia in a recent enactment, have made efforts to create offer of judgment provisions that provide severe penalties-attorney's fees and costs-for an offeree who …