Courts Commons^™

Privacy In The Age Of Tracking Technology: Why G.P.S. Technology Should Not Be Used To Track Process Servers, Talia E. Neri

Cardozo Public Law, Policy & Ethics Journal

The article argues that the expansion of GPS technology in the process service industry and workplace surveillance raises significant Fourth Amendment concerns, as it erodes privacy expectations and creates a chilling effect on personal autonomy. While courts have upheld the use of GPS in certain employment contexts, the author contends that such surveillance often outweighs its benefits, particularly when less intrusive alternatives are available. The analysis critiques the legal standards governing surveillance, particularly the "readily available" standard from United States v. Kyllo, and advocates for a more balanced approach that prioritizes privacy protections.

Failure Of A "Basic Assumption": The Emerging Standard For Excuse Under Mae Provisions, Nathan Somogie

Michigan Law Review

The onset of the current economic crisis has led many strategic and financial acquirers to reconsider the desirability of transactions to which they had previously agreed. Because many of these agreements contain substantial termination fees, buyers have increasingly sought to be excused from their contractual obligations by invoking Material Adverse Effect ("MAE") provisions. Reliance on MAE clauses as a basis for termination has historically been risky due to a lack of clarity in the case law regarding the standard for excuse under such provisions. A recent decision by the Delaware Chancery Court, Hexion v. Huntsman, the third in a …

In With The New, Out With The Old: Expanding The Scope Of Retroactive Amelioration, S. David Mitchell

Faculty Publications

The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism. Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to …

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

All Faculty Scholarship

Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …

Understanding Pleading Doctrine, A. Benjamin Spencer

Faculty Publications

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

The Stockley Verdict: An Explainer, Chad Flanders

All Faculty Scholarship

The purpose o f this document is to help explain some o f the existing Missouri law that Judge Wilson used in his opinion. It does not take a side on the opinion itself. At the end o f the day, the decision Judge Wilson made was based on his call on various disputed factual questions. The law was not, for the most part, at issue. I attempt only to describe the legal framework within with Judge Wilson decided the case; not to support or to criticize his verdict. Each person will ultimately have to make his or her own …

Supreme Court Of The United States, October Term 2009 Preview, Georgetown University Law Center, Supreme Court Institute, Amanda M. Boote

Supreme Court Overviews

No abstract provided.

Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman

Cornell Law Faculty Publications

In a symposium to honor Professor Richard Speidel, a giant in the field of contract and commercial law for over four decades, this contribution argues that Speidel may have been correct in asserting that, in limited circumstances, court adjustment of disrupted long-term contracts makes sense. I assert that nothing courts have decided or writers have analyzed since the ALCOA case proves that court adjustment is wrong-headed. But, as with so many policy issues, we may never identify the "best" judicial approach to disrupted long-term contracts because resolution depends on too many variables and unknowns.

The Legality And Practicality Of Remote Witness Testimony, Fredric Lederer

Popular Media

No abstract provided.

Remarks, More Remarks And A Grounds Of Decision: One Judgment Too Many? Tt Durai V Public Prosecutor, Unreported Magistrate's Appeal, S. Chandra Mohan

Research Collection Yong Pung How School Of Law

In May 2008, the High Court dismissed the appeal of former NKF CEO, T T Durai, against his conviction and sentence. What is little known is that one of Durai's six grounds of appeal was in fact upheld. The appellate judge subsequently devoted nine out of 12 paragraphs of his four-page Grounds of Decision, to explain is reasons for doing so. Although this ruling did not affect the final outcome of the Durai appeal, it has to some extent helped to settle a question that has vexed criminal law practitioners in recent years. This concerns the legality and propriety of …

Letter To Clerk Of Court Re: Ronald Jackson, Roger J. Miner '56

Correspondence

No abstract provided.

Stages Of Judgment Citizen Court Experiment Report, Courtney Breese

Massachusetts Office of Public Collaboration Publications

Over the past several years, the Massachusetts Office of Dispute Resolution and Public Collaboration (MODR) has worked with the Kettering Foundation to establish a Public Policy Institute (PPI) for public deliberation at the University of Massachusetts Boston. In June 2008, the Kettering Foundation invited MODR to join other research partners across the country in a research experiment influenced by Daniel Yankelovich‟s Seven Stages of Public Understanding. The purpose of this experiment is to test how effectively a citizen court process model communicates public opinion on contentious public policy issues to public officials and the media.

MODR agreed to join in …

Civil Partnership: Your Questions Answered - A Comprehensive Analysis Of The Civil Partnership Bill, Fergus Ryan

Reports

The Civil Partnership Bill 2009 arguably represents the most momentous change in Irish Family Law in a generation. The Bill proposes a substantial new legal status for registered same-sex partners, as well as important changes to the law as it relates to cohabitants. This report addresses the provisions of the Bill as initiated, analysing the potential impact of the Bill in clear and accessible language. The Report also highlights potential difficulties with the Bill, and suggests possible enhancements to the Bill as initiated.

The Future For Collected Prosecutorial Evidence At The International Criminal Tribunal For Rwanda, Gerda Visser

Cardozo Public Law, Policy & Ethics Journal

The article focuses on the International Criminal Tribunal for Rwanda (ICTR) and its Office of the Prosecutor (OTP), emphasizing the need to balance the preservation of sensitive information with the public's right to access historical records. It highlights the ICTR's role in developing international criminal law standards and the challenges of managing its vast archive, particularly regarding witness protection, privacy, and future prosecutions. The article proposes establishing an international judicial archive with a legal reviewing body to oversee access to the OTP database, ensuring transparency while safeguarding sensitive data.

Toward A Coherent Test For Disparate Impact Discrimination, Jennifer L. Peresie

Indiana Law Journal

Statistics are generally plaintiffs' primary evidence in establishing a prima facie case of disparate impact discrimination. Thus, the use, or misuse, of statistics dictates case outcomes. Lacking a coherent test for disparate impact, courts choose between the two prevailing tests, statistical significance and the four-fifths rule, in deciding cases, and these tests frequently produce opposite results. Litigants thus face considerable uncertainty and the risk that a judge's preferred outcome will dictate which test is applied. This Article recognizes that the two tests perform complementary functions that both play a useful role in determining whether liability should be imposed. statistical significance …

The European Court Of Human Rights And The Freedom Of Expression, Jean-François Flauss

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Overcoming Soviet Legacy: Non-Enforcement Of The Judgments Of The European Court Of Human Rights By The Russian Judiciary, Yulia Dernovsky

Cardozo Journal of International and Comparative Law

The note examines the challenges Russia faces in its interactions with the European Court of Human Rights (ECtHR), highlighting the surge in complaints against Russia and the country's increasing resistance to the ECtHR's rulings. It explores the ECtHR's evolving role in interpreting the European Convention on Human Rights as a living instrument and the tensions arising from Russia's domestic legal framework and political hostility toward the Court. The analysis underscores the need for both internal reforms in Russia and external adjustments to the ECtHR's procedures to address the growing caseload and ensure compliance with human rights standards.

Making The Interests Of The Child Paramount: Representation For Children In The Hague Convention On The Civil Aspects Of International Child Abduction, Elizabeth Pitman

Cardozo Journal of International and Comparative Law

The Hague Convention on the Civil Aspects of International Child Abduction, while innovative in addressing child welfare, fails to ensure children's independent representation in proceedings, undermining their ability to voice their interests. This Note advocates for amending the Convention to require legal representation for children in all cases, aligning it with the United Nations Convention on the Rights of the Child (CRC), which guarantees children the right to express their views in judicial proceedings. The absence of such representation leads to incomplete records and inadequate protection of children's best interests, as highlighted by cases like Arianna Adan. Ensuring independent …

Batson, Empowerment And New Jury Models: The Case For ‘Open Inquiry’, Patrick C. Brayer

Faculty Works

This 2009 article recommends the practice technique of “open inquiry,” which encourages attorneys and courts to ask jurors to openly identify their race, gender, and ethnicity during voir dire for purposes of appellate review under Batson v. Kentucky and related holdings. An open inquiry helps protect the rights of all jurors to sit. It thus creates a greater chance that juries are more diverse and promotes more voices and experiences during deliberation. The open inquiry method also promotes individual juror participation and increases the group's receptiveness toward individual voices during deliberations. Most importantly, open inquiry forces practitioners to rethink how …

Imbree V Mcneilly: A View From Singapore, Yihan Goh

Research Collection Yong Pung How School Of Law

In Imbree v. McNeilly, the High Court of Australia ruled that a learner driver is no longer to be held to the standard of a reasonable but unqualified (and inexperienced) driver in negligence claims. It is the modest aim of this case note to show that Imbree, while a decision on a narrow point, in fact hints at a larger difficulty in the ascertainment of the standard of care in individual cases. It is in this context that it will be suggested that, when the time comes for Singapore courts to consider the applicability of Imbree, this difficulty should be …

From The Chair, Lela P. Love

Articles

No abstract provided.

Standing Still In The Roberts Court, Jonathan H. Adler

Faculty Publications

In 2007, The New York Times reported "limiting the ability of plaintiffs to bring or appeal lawsuits" had emerged as an early "theme" of the Roberts Court. The Wall Street Journal concurred, reporting "the biggest change under Chief Justice Roberts might not involve who wins on the merits" but "who gets through the courthouse door in the first place." An early consensus is emerging... that one effect of the Roberts Court is to make it more difficult for prospective plaintiffs to have their day in federal court.

Because standing decisions are more insulated from legislative revision than other sorts of …

Xilinx And The Arm's-Length Standard, Reuven S. Avi-Yonah

Articles

On May 7 the Ninth Circuit decided Xilinx v. Commissioner. By a 2-1 majority, the panel reversed the Tax Court and held that costs of employee stock options must be included in the pool of costs subject to a tax-sharing agreement. The Xilinx decision is important for three reasons. First, cost sharing is probably the key element in current transfer pricing law because it is the principal way in which profits from intangibles get shifted from the United States to low-tax jurisdictions. Moreover, informed observers agree that the allocation of income from intangibles is the most important problem in transfer …

Sunshine In Litigation Act Of 2009: Hearing Before The Subcomm. On Commercial And Administrative Law Of The H. Comm. On The Judiciary, 111th Cong., June 4, 2009 (Statement Of Sherman L. Cohn, Prof. Of Law, Geo. U. L. Center), Sherman L. Cohn

Testimony Before Congress

I urge that the issue before the Congress in the proposed “Sunshine in Litigation Act of 2009” is really one of social values and a choice to be made among various values and that that is a substantive matter rather than a mere matter of procedure. It is a choice among values that Congress, the legislative arm of the federal government, is charged with making and in this case should make.

Corruption In Our Courts: What It Looks Like And Where It Is Hidden, Stratos Pahis

Faculty Scholarship

No abstract provided.

Islamic Headscarves And Slippery Slopes, Murat Borovali

Cardozo Law Review

No abstract provided.

Beyond Borders: Disassembling The State-Based Model Of Federal Forum Fairness, Jamelle C. Sharpe

Cardozo Law Review

No abstract provided.

Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann

Vanderbilt Law School Faculty Publications

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that …

Wyeth V. Levine And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court’s decision in Wyeth v. Levine sharply limited the availability of implied preemption as a defense in pharmaceutical cases. In this Analysis & Perspective, attorney Brian Wolfman discusses the decision and its implications for prescription drug litigation as well as litigation in other areas that are regulated by the federal government.

After Wyeth, Wolfman says, a defendant in a prescription drug case must demonstrate a ‘‘tight fit between the labeling change proposed by the manufacturer (and rejected by the FDA) and the labeling change that the plaintiff contends would have prevented her injuries.’’ Moreover, he says, …

Letter To Clerk Of Court Re: Harold Harris, Roger J. Miner '56

Correspondence

No abstract provided.