Courts Commons^™

Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss

Articles by Maurer Faculty

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using …

The Saucier Qualified Immunity Experiment: An Empirical Analysis, Nancy Leong

Faculty Publications

No abstract provided.

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, …

The Decline And Fall Of The American Judicial Opinion, Part Ii: Back To The Future From The Roberts Court To Learned Hand – Segmentation, Audience, And The Opportunity Of Justice Sotomayor, Jeffrey A. Van Detta

Barry Law Review

No abstract provided.

Foreward: The Most Confusing Branch, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

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 …

How Much Does It Matter Whether Courts Work Within The "Clearly Marked" Provisions Of The Bill Of Rights Or With The "Generalities" Of The Fourteenth Amendment?, Yale Kamisar

Articles

We know that it really mattered to Justice Hugo Black. As he made clear in his famous dissenting opinion in Adamson v. California] Black was convinced that the purpose of the Fourteenth Amendment was to apply the complete protection of the Bill of Rights to the states.2 And, as he also made plain in his Adamson dissent, he was equally convinced that working with the "specific" or "explicit" guarantees of the first Eight Amendments would furnish Americans more protection than would applying the generalities of the Fourteenth Amendment.3

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 …

The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar

Faculty Publications

This Article explores an underappreciated legacy of the Supreme Court's (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion—which declares that the "spirit" of a statute should trump its "letter"—and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion's lengthy second half. In that second half, the Court tells a detailed narrative about the country's …

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

We Can Work It Out: Entertaining A Dispute Resolution System Design For Bankruptcy Court, Elayne E. Greenberg

Faculty Publications

On October 2, 2009, dispute resolution scholars and bankruptcy court jurists courageously began the difficult conversation about the feasibility of an expanded dispute resolution system design for bankruptcy court. This commentary distills that conversation through a dispute resolution system design lens. Dispute resolution system design offers a framework for organizations to more effectively manage and resolve recurring conflicts. The design of a dispute resolution system requires clarifying ideas, elucidating values, prioritizing goals, considering options and incorporating that information into a more workable process to respond to conflict. All the while, the stakeholders and dispute resolution designers work together to clarify, …

A New Look At Judicial Impact: Attorney's Fees In Securities Class Actions After Goldberger V. Integrated Resources, Inc., Theodore Eisenberg, Geoffrey Miller, Michael A. Perino

Faculty Publications

Political scientists have long been interested in what impact judicial decisions have on their intended audiences. Compliance has been defined as the lower court's proper application of standards the superior court has enunciated in deciding all cases raising similar or related questions. Most studies find widespread compliance in lower courts, with only rare instances of overt defiance.

This Article attempts to address three questions in the extant judicial impact literature. First, existing studies use rather insensitive measures of compliance and thus may fail to identify instances of subtle resistance to higher court rulings. Second, judicial impact literature has a restrained …

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.

Don't Get Enough Credit: The Need For An Impartial Consumer Credit Report Appeal Tribunal In Ontario, Kent Glowinski

Journal of Law and Social Policy

Reviews the regulatory history of credit bureaus in Ontario, the interplay of privacy and consumer law vis-a-vis consumer credit reporting, case law and credit bureau liability, and discuss the policy rationale for a Credit Report Appeal Tribunal.

Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent

Faculty Scholarship

This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the …

Class Action Arbitration, William H. Baker

Cardozo Journal of Conflict Resolution

Class action arbitrations are a relatively recent phenomenon in the United States, but the number of such arbitrations is expanding at a rapid rate. As of August 2008, the American Arbitration Association ("AAA") has administered 246 class action arbitrations and Judicial Arbitration and Mediation Services, Inc. ("JAMS"), another major U.S. arbitral institution, has also administered a substantial number of class arbitrations.

Business Courts And The Future Of Arbitration, Christopher R. Drahozal

Cardozo Journal of Conflict Resolution

This article examines the extent to which competition from business courts is likely to impact the future of arbitration. Part II provides a brief overview of the growth of business courts in recent years. Part III sets out a structural comparison of arbitration with business courts, highlighting the similarities and differences between the two. Part IV provides empirical evidence on the relationship between the availability of business courts and the use of arbitration clauses. Overall, the evidence provides little indication that parties are switching from arbitration to business courts. The evidence is far from definitive, however, and highlights the need …

State Regulation Of Arbitration Proceedings: Judicial Review Of Arbitration Awards By State Courts, Stephen K. Huber

Cardozo Journal of Conflict Resolution

The thesis of this Article can be stated simply and concisely: States possess the power to adopt standards for the conduct of arbitration proceedings and review of arbitration awards that are significantly different from federal law standards. The major objective of this Article is to explore the most important possibilities for reform of arbitration law and practice at the state level. State law standards will be of increasing importance in the reformation of arbitration practice. This Article focuses on the standards of review of arbitration awards employed by state courts, because the power to vacate an arbitration award is the …

Judges Gone Wild: Why Breaking The Mediation Confidentiality Privilege For Acting In "Bad Faith" Should Be Reevaluated In Court-Ordered Mandatory Mediation, Samara Zimmerman

Cardozo Journal of Conflict Resolution

This Note focuses on the reasons why a good faith requirement or a bad faith exception for breaking mediation confidentiality is objectionable and offers an alternative for the Florida court system that, if implemented, could mitigate such disadvantages. I will discuss "the intersection between [a] court-ordered mediation, the confidentiality of which is mandated by law ... and the power of a court to control proceedings," and persons who appear before it by sanctioning conduct that taking place in mediation. Part II of this Note will begin by providing a background to the Doe v. Francis civil case. It will highlight …

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 …

The Demise Of The Law-Finding Jury In America And The Birth Of American Legal Science: History And Its Challenge For Contemporary Society, Jonathon Lahn

Cleveland State Law Review

This paper proceeds in two parts. The first part is devoted to an historical argument that juries in early American legal systems possessed a broad power to decide questions of law, which corresponded to a conception of the law as emerging from, and intimately bound up with, the experiences and beliefs of the members of a given community--a power that was taken from them in a relatively short period of time due to a variety of social pressures, none of which would have been sufficient to cause the change absent the emergence of a new ideology of law as an …

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Judicial And Arbitral Proceedings And The Outer Limits Of The Continental Shelf, John E. Noyes

Vanderbilt Journal of Transnational Law

This Article explores when international third-party dispute settlement forums may hear cases concerning the outer limits of a continental shelf beyond 200 nautical miles from baselines. The 1982 Convention on the Law of the Sea articulated determinate rules for establishing those limits and created an institution--the Commission on the Limits of the Continental Shelf--to make recommendations concerning them. Limits set by coastal states "on the basis of" such recommendations "shall be final and binding." Yet the Law of the Sea Convention's third-party dispute settlement system may also apply to outer limits questions concerning the Arctic Ocean and other oceans.

International …

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 …

Pangloss Responds, Daniel A. Crane

Articles

I am afraid that William Shieber and I are speaking past each other. I agree wholeheartedly with his assertion that anyone who believes that political appointees do not exert a considerable influence over the antitrust agencies is naïve. However, Technocracy and Antitrust does not advance the Panglossian view that the antitrust agencies are apolitical, if by that we mean that robotic machines devoid of human perspective or ideological commitment churn out scientifically predetermined antitrust results.

Negligence Per Se And Res Ipsa Loquitur: Kissing Cousins, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, James E. Coleman, Angela Davis, K.C. Johnson, Lyrissa Lidsky

Faculty Publications

The genesis of this panel is an essay I wrote arguing that the single moniker "Duke lacrosse controversy" encapsulates a broad, multi-faceted legal, political, and social controversy that more accurately consists of five related seriatim sub-controversies. Initially, it was a sexual assault case. An African-American woman, hired as an exotic dancer at a party thrown by members of the Duke University men's lacrosse team, reported to Durham police that she had been sexually assaulted by several white team members. The allegations quickly became a national story, tinged with issues of race, class, gender, privilege, and at some level, the role …

Rwandan Genocide: Taking Notes From The Holocaust Reparations Movement, Yael Weitz

Cardozo Journal of Equal Rights & Social Justice

The note examines the failure to provide adequate reparations to rape victims of the Rwandan genocide, drawing parallels with the Holocaust reparations movement. It argues that while international law has advanced in recognizing rape as a grave crime, the existing mechanisms, such as the International Criminal Tribunal for Rwanda (ICTR), have failed to deliver reparations. The International Criminal Court (ICC) is proposed as a potential solution, despite jurisdictional limitations, through cooperation with the ICTR to address the urgent needs of Rwandan rape victims.

Super Bowl Hero To Bank Account Zero, Scott Hollander

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Crossing The Fair Use Line: The Demise And Revival Of The Harry Potter Lexicon And Its Implications For The Fair Use Doctrine In The Real World And On The Internet, Shira Siskind

Cardozo Arts & Entertainment Law Journal

No abstract provided.