Courts Commons^™

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran

Articles

Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …

Unmasking Judicial Extremism, Carl W. Tobias

Law Faculty Publications

Review of Cass R. Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (2005)

Toward A Theory Of Persuasive Authority, Chad W. Flanders

Oklahoma Law Review

No abstract provided.

Statutory Standing And The Tyranny Of Labels, Radha A. Pathak

Oklahoma Law Review

Constitutional and prudential standing doctrines have received an abundance of scholarly consideration. Statutory standing, in contrast, has remained largely unexplored. The Supreme Court’s use of the term is relatively consistent and unobjectionable, but the meaning that many lower courts ascribe to it is anything but innocuous. This article develops a conceptual framework for understanding the different ways in which different courts conceive of statutory standing. Using the Employee Retirement Income Security Act of 1974 (“ERISA”) as a paradigmatic example, it attempts to illustrate the pernicious effects that often result from common misconceptions of statutory standing in disputes involving purely private …

Giles V. California: A Personal Reflection, Richard D. Friedman

Articles

In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …

The Federal Courts As A Franchise: Rethinking The Justifications For Federal Question Jurisdiction, Gil Seinfeld

Articles

The components of the Federal Franchise model-procedural homogeneity, cultural conformity, and technical competence-should be familiar. The federal courts' capacity to provide these benefits has not escaped commentators' notice; indeed, there are points of connection between these features of federal court adjudication and the individual fragments of the conventional account.l0 But prior scholarly discussion of these themes has been unsystematic, treating them as (at best) secondary considerations when it comes to the allocation of federal question cases between the state and federal courts. This Article attempts to weave together these previously disconnected strands of thinking about federal court adjudication and to …

Saving Money For Everyone: The Current Economic Crisis Is An Opportunity To Get Serious About Improving Juror Utilization, Paula Hannaford-Agor

Faculty Publications

The current economic crisis provides an opportunity for courts to improve juror utilization, potentially saving tens of thousands of dollars per year in unnecessary expenses incurred for unused jurors and hundreds of thousands of dollars in lost income and lost productivity incurred by jurors, their employers, and their communities.

Nonconsensual + Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, Amy J. Schmitz

Cardozo Journal of Conflict Resolution

Policymakers have adopted programs mandating parties to submit their disputes to court-connected arbitration hoping to garner efficiency benefits commonly associated with contractual Federal Arbitration Act (FAA) arbitration. Mandatory nonbinding arbitration, however, is ill-equipped for this task because it lacks the consensual core and finality of FAA arbitration. Instead, it often adds an inefficient layer to the litigation process and may harm those least able to protect themselves from coerced settlements or burdens of protracted litigation.

The Role Of The Office Of The Administrative Law Judges Within The United States International Trade Commission, 8 J. Marshall Rev. Intell. Prop. L. 216 (2009), Carl C. Charneski

UIC Review of Intellectual Property Law

Section 337 of the Tariff Act of 1930 makes unlawful, specifically, the importation of products that infringe intellectual property rights. The U.S. International Trade Commission (“ITC”) is the forum in which all section 337 proceedings are adjudicated and, within the ITC, the Office of Administrative Law Judges handles all these proceedings. Section 337 cases can be exceedingly complex and technical, and the Administrative Law Judges (“ALJ”) are the initial triers of fact, administrators, and decision makers in every case. Thus, the amount of work that the ALJs—along with their staff—must meet to see these cases to completion can be substantial. …

Obviousness Before And After Judge Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 9 (2009), Mark J. Abate

UIC Review of Intellectual Property Law

Chief Judge Howard T. Markey left an everlasting mark on the meaning of obviousness under 35 U.S.C. § 103. Chief Judge Markey viewed all inventions as combinations of old elements because, in his own words, “Only God works from nothing. Man must work with old elements.” Chief Judge Markey’s obviousness jurisprudence can be characterized by three fundamental principles. First, he looked at an invention as a whole. Second, he looked for real world evidence of nonobviousness because it was a reliable indicator of obviousness. Third, he avoided the dangers of hindsight bias by looking for a reason to combine a …

The Role Of Juries In Managing Patent Enforcement: Judge Howard Markey's Opinions And Writings, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 41 (2009), John R. Alison

UIC Review of Intellectual Property Law

In the 1970s, a trial by jury was rare in patent cases. By the time Chief Judge Markey left the United States Court of Appeals for the Federal Circuit in 1989, jury trials had become the norm. Throughout Judge Markey’s time on the bench he exerted great energy to promote, define, and improve the role of law juries in patent cases. This speech by Judge Markey’s former law clerk, John R. Alison, discusses the three Markey Principles. The first principle of Judge Markey is the fundamental right to a jury trial in patent cases. Second, proceedings in jury trials for …

The Legacy Of Judge Howard T. Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 1 (2009), Antonin Scalia

UIC Review of Intellectual Property Law

On September 16, 2008, Associate Justice of the Supreme Court of the United States Antonin Scalia delivered a speech on the legacy of the late Howard T. Markey. The speech was given at The John Marshall Law School’s The Legacy of Judge Howard T. Markey Symposium, held at the law school in Chicago, Illinois. The text of the speech appears here.

Extending The Shadow Of The Law: Using Hybrid Mechanisms To Establish Constitutional Norms In Socioeconomic Rights Cases, Brian E. Ray

Law Faculty Articles and Essays

This Article challenges the general perception that ADR processes cannot develop public law norms. It follows a recent trend in ADR literature that seeks to define a public norm creation role for ADR in part by connecting these processes to other alternative legal and political problem-solving methods. This Article focuses on a recent South African Constitutional Court case, Occupiers of 51 Olivia Road v City of Johannesburg, in which the court interpreted the right to housing in the South African Constitution. The court held that municipalities must develop processes for negotiating - or, in the court's language "engaging" - with …

The Effect Of Tort Reform On Tort Case Filings, Patricia W. Moore

Faculty Articles

Does so-called "tort reform" decrease tort case filings? In Texas and other states that have enacted numerous rounds of tort reform, the answer appears to be a resounding "yes," at least as of the year 2000. More recent evidence from Oklahoma supports that conclusion and provides an interesting case study within the tort reform juggernaut.

During at least the past twenty years, tort reformers have achieved substantial legislative successes and, some would argue, public relations victories. Yet their desire for more "reform" seems insatiable, and their legislative agenda rarely sleeps.

Tort reform bills bloom perennially in the Oklahoma legislature, and …

The Ideology Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article questions whether consistency in legal interpretation is truly a manifestation of the influence of law or instead a means to a preferred policy end. Part I of this Article discusses the legal interpretive tools of originalism and legislative history and how they might influence outcomes in cases. Part II discusses judicial decision-making in the U.S. Courts of Appeals and justifies their use in the analysis. Parts III and IV offer information on our data and methodology, as well as a discussion of the results. Finally, in Part V, we find that the use of legal interpretive strategies are …

Rethinking Judicial Deference To Legislation Fact-Finding, Caitlin E. Borgmann

Indiana Law Journal

It is traditionally assumed that the role of ascertaining and evaluating the social facts underlying a statute belongs to the legislatures. The courts in turn are tasked with deciding the law and must defer to legislative fact-finding on relevant issues of social fact. This simplistic formula, however, does not accurately describe the courts' confused approach to legislative fact-finding. Although the courts often speak in terms of deference, they follow no consistent or predictable pattern in deciding whether to defer in a given case. Moreover, blanket judicial deference to legislative fact-finding would not be a wise general rule. Because social fact-finding …

Reality Bites: The Illusion Of Science In Bite-Mark Evidence, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

Policentrism, Political Moblization, And The Promise Of Socioeconomic Rights, Brian E. Ray

Law Faculty Articles and Essays

There is an active and heated debate over whether socioeconomic rights should be included in modern constitutions because of their supposed "positive" character and the difficult separation-of-powers and institutional-competence concerns such rights raise. The controversy over the nature of socioeconomic rights and whether constitutions should include them is connected to the issue of how to enforce these rights when they are included. The South African Constitutional Court is the leading example of a court dealing with these enforcement issues, and its early decisions have been hailed by many, including Mark Tushnet and Cass Sunstein, as developing a uniquely effective approach …

Business, The Roberts Court, And The Solicitor General: Why The Supreme Court's Recent Business Decisions May Not Reveal Very Much, Sri Srinivasan, Bradley W. Joondeph

Faculty Publications

This essay presents an empirical examination of the full universe of the Roberts Court’s decisions affecting the interests of business from January 2006, when Justice Alito joined the Court, to January 2009. As a purely descriptive matter, we find that the Court tended to reach results favorable to business interests, and that it tended to adopt the positions urged by the Bush administration. Moreover, when those two positions diverged-most saliently, in cases where the United States and the United States Chamber of Commerce filed opposing amicus briefs-the Roberts Court overwhelmingly sided with the government.

While these findings are interesting, our …

An Essay On The Emergence Of Constitutional Courts: The Cases Of Mexico And Columbia, Miguel Schor

Indiana Journal of Global Legal Studies

This essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia undertook constitutional transformations designed to empower their respective national high courts in the 1990s to facilitate a democratic transition. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and maintenance.

These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas …

Midwestern Juvenile Drug Courts: Analysis & Recommendations, Nicole A. Kozdron

Indiana Law Journal

No abstract provided.

From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz

Articles

In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the U.S. Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder. Among its many surprises, NAMUDNO helps illuminate the Court’s fundamental error nine years ago. Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified …

Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson

Articles

In this Article, we explore the role of the New Deal Justices in enacting, defending, and interpreting the federal securities laws. Although we canvass most of the Court's securities law decisions from 1935 to 1955, we focus in particular on PUHCA, an act now lost to history for securities practitioners and scholars. At the time of the New Deal, PUHCA was the key point of engagement for defining the judicial view toward New Deal securities legislation. Taming the power of Wall Street required not just the concurrence of the legislative branch, but also the Supreme Court, a body that the …

The Michigan Supreme Court, Stare Decisis, And Overruling The Overrulings, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker

Articles & Book Chapters

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a …

Reforming Family Court: Getting It Right Between Rhetoric And Reality, Jane M. Spinak

Faculty Scholarship

What do we say about the reform work we do, and to what degree is what we say accurate? How does the way in which we talk about family court reform implicate our analysis of what we are achieving? How does our place or role within the system affect our perceptions of reform? What limits our willingness and ability to apply rigorous evaluative techniques to determine whether we are reaching our goals? And if we are failing, can we acknowledge failure and learn from it? Answering these questions may lead to a better understanding of why family court reform is …

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Justice On Appeal In Criminal Cases: A Twentieth-Century Perspective, Paul D. Carrington

Faculty Scholarship

Criminal appeals was a hot topic in the 1970s, reflecting the politics of the Great Society and the development of the constitutional requirements of due process. There was then widespread agreement that the function of the criminal appeal was to assure that the appropriate judges were giving visible attention to all convictions to assure that they were justified. This paper will pose the question: what has become of that vision of a former generation?

The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

Resolving Amicus Curiae Motions In The Third Circuit And Beyond, Carl W. Tobias

Law Faculty Publications

Amicus curiae briefs are deeply woven into the fabric of modern federal appellate practice. Indeed, amici curiae submit briefs in approximately ninety percent of the cases that the United States Supreme Court entertains, and the Justices deny a minuscule number of amicus requests to participate. Amicus practice is less ubiquitous in the United States Courts of Appeals. Amici seek to file comparatively few briefs, nearly all of which the appellate courts permit, while many tribunals have not developed a comprehensive jurisprudence for resolving amicus motions. Nonetheless, the United States Court of Appeals for the Seventh Circuit has articulated rather stringent …