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Articles 181 - 210 of 353
Full-Text Articles in Courts
Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin
Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin
Journal Articles
In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging …
Federal Courts Not Federal Tribunals, Lumen N. Mulligan
Federal Courts Not Federal Tribunals, Lumen N. Mulligan
Faculty Works
The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. - 1331 or Article III. Borrowing a phrase …
The Prop 8 Decision And Courtroom Drama In The Youtube Age: Why Camera Use Should Be Permitted In Courtrooms During High Profile Civil Cases, Matthew E. Feinberg
The Prop 8 Decision And Courtroom Drama In The Youtube Age: Why Camera Use Should Be Permitted In Courtrooms During High Profile Civil Cases, Matthew E. Feinberg
Cardozo Journal of Equal Rights & Social Justice
No abstract provided.
Good But Not Great: Improving Access To Public Records Under The D.C. Freedom Of Information Act, 13 D.C. L. Rev. 359 (2010), Margaret B. Kwoka, Melissa Davenport
Good But Not Great: Improving Access To Public Records Under The D.C. Freedom Of Information Act, 13 D.C. L. Rev. 359 (2010), Margaret B. Kwoka, Melissa Davenport
UIC Law Open Access Faculty Scholarship
No abstract provided.
Expert Witnesses: The Nevada Supreme Court Clarifies Adherence To Nrs 50.275 And Judicial Discretion, Expressly Declining To Embrace The Federal Daubert Approach, Jeffrey W. Stempel
Expert Witnesses: The Nevada Supreme Court Clarifies Adherence To Nrs 50.275 And Judicial Discretion, Expressly Declining To Embrace The Federal Daubert Approach, Jeffrey W. Stempel
Scholarly Works
No abstract provided.
Refocusing Away From Rules Reform And Devoting More Attention To The Deciders, Jeffrey W. Stempel
Refocusing Away From Rules Reform And Devoting More Attention To The Deciders, Jeffrey W. Stempel
Scholarly Works
The issue of judicial competence and integrity is particularly troubling in the wake of Caperton v. A.T. Massey Coal Co., where the U.S. Supreme Court vacated a state supreme court decision in which a justice—who had received at least $3 million in campaign support from a litigant—cast the deciding vote to relieve the litigant of a liability award of $50 million ($82 million with interest). The Court reached this result, one I view as compelled by common sense, through a 5-4 vote. The dissenters, led by Chief Justice Roberts and Justice Scalia, minimized the danger of biased judging presented by …
A Decision-Theoretic Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert
A Decision-Theoretic Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert
Faculty Publications
This article evaluates these approaches from the perspective of decision theory and, finding each lacking, proposes an alternative approach to structuring the rule of reason governing RPM. Part II sets forth the decision-theoretic perspective, which seeks to maximize the net benefits of liability rules by minimizing the sum of decision and error costs. Part III then evaluates, from the standpoint of decision theory, the proposed approaches to evaluating instances of RPM. Part IV proposes an alternative evaluative approach that is more consistent with decision theory’s insights.
China's Judicial System And Judicial Reform, Nicholas C. Howson
China's Judicial System And Judicial Reform, Nicholas C. Howson
Other Publications
The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …
Illinois Courts And The Law Of Miranda Waivers: A Policy Worth Preserving, 30 N. Ill. U. L. Rev. 429 (2010), Timothy P. O'Neill
Illinois Courts And The Law Of Miranda Waivers: A Policy Worth Preserving, 30 N. Ill. U. L. Rev. 429 (2010), Timothy P. O'Neill
UIC Law Open Access Faculty Scholarship
No abstract provided.
Informed Consent: No Longer Just What The Doctor Ordered - The Contributions Of Medical Associations And Courts To A More Patient Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17 (2010), Marc Ginsberg
UIC Law Open Access Faculty Scholarship
No abstract provided.
Adaptive Management In The Courts, J.B. Ruhl, Robert Fischman
Adaptive Management In The Courts, J.B. Ruhl, Robert Fischman
Vanderbilt Law School Faculty Publications
Adaptive management has become the tonic of natural resources policy. With its core idea of "learning while doing," adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending "adaptive" in front of "management" somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question, with …
The Future Of Disparate Impact, Richard A. Primus
The Future Of Disparate Impact, Richard A. Primus
Articles
The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.
A Structural Vision Of Habeas Corpus, Eve Brensike Primus
A Structural Vision Of Habeas Corpus, Eve Brensike Primus
Articles
As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …
The Doctrinal Side Of Majority Will, Corinna Barrett Lain
The Doctrinal Side Of Majority Will, Corinna Barrett Lain
Law Faculty Publications
What is the Supreme Court's relationship with public opinion? Barry Friedman's answer in The Will of the People scours some 200 years of history to provide a distinctly political view of the Court, and the story he tells is compelling. Yet it is also incomplete. The Will of the People presents a largely external account of the law; it sees the influence of majority will as a force that moves outside the jurisprudence we lawyers spend so much of our time researching, writing, and talking about. By this account, there is what the Justices say is driving their decisionmaking-legal …
The Functions Of Ethical Originalism, Richard A. Primus
The Functions Of Ethical Originalism, Richard A. Primus
Articles
Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …
Against Secret Regulation: Why And How We Should End The Practical Obscurity Of Injunctions And Consent Decrees (Symposium: Rising Stars: A New Generation Of Scholars Looks At Civil Justice), Margo Schlanger
Articles
Every year, federal and state courts put in place orders that regulate the prospective operations of certainly hundreds and probably thousands of large government and private enterprises. Injunctions and injunction-like settlement agreements-whether styled consent decrees, settlements, conditional dismissals, or some other more creative title-bind the activities of employers, polluters, competitors, lenders, creditors, property holders, schools, housing authorities, police departments, jails, prisons, nursing homes, and many others. The types of law underlying these cases multiply just as readily: consumer lending, environmental, employment, anti-discrimination, education, constitutional, and so on. Injunctive orders, whether reached by litigation or on consent, suffuse the regulatory environment, …
Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld
Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld
Articles
Article I, Section 8 and Article Ill, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the …
Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer
Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer
Faculty Publications
Rule 4 of the Federal Rules of Civil Procedure limits the territorial jurisdiction of federal district courts to that of the courts of their host states.T his limitation is a voluntary rather than obligatory restriction, given district courts' status as courts of the national sovereign. Although there are sound policy reasons for limiting the jurisdictional reach of our federal courts in this manner, the limitation delivers little benefit from a judicial administration or even a fairness perspective, and ultimately costs more to implement than is gained in return. The rule should be amended to provide that district courts have personal …
Prosecution Of Genocide V. The Fair Trial Principle: Comments On Brown And Others V. The Government Of Rwanda And The Uk Secretary Of State For The Home Department, Mark A. Drumbl
Scholarly Articles
The article examines the 2009 decision of the United Kingdom High Court of Justice to deny the extradition of four genocide suspects to Rwanda owing to fair trial and partiality concerns with the Rwandan judiciary. It begins by reviewing the relevant UK extradition legislation, the pertinent facts and the rationale for the judgment and proceeds to situate this decision within the broader transnational judicial scepticism about the extradition or transfer of genocide suspects to Rwanda. While this scepticism arises from valid concerns regarding the contemporary state of human rights in Rwanda, it nevertheless contributes to the perpetuation of impunity surrounding …
Compelling The Courts To Question Gonzalez V. O Centro: A Public Harms Approach To Free Exercise Analysis, Ari B. Fontecchio
Compelling The Courts To Question Gonzalez V. O Centro: A Public Harms Approach To Free Exercise Analysis, Ari B. Fontecchio
Richmond Public Interest Law Review
Part I will set forth the analytical framework established by the Supreme Court in the RFRA and RLUIPA contexts before 0 Centro." This Part will provide a brief background to RFRA and RLUIPA and set forth the definition of "compelling interest" before 0 Centro. Part II will focus on the decision in 0 Centro; specifically, how the Supreme Court's redefinition of "compelling interest" significantly elevates the government's burden. Part III will compare the government's chance of winning on a "compelling interest" argument before 0 Centro" with the chance of winning in its wake. This Part will discuss the merits, flaws, …
Judges And Their Editors, Douglas E. Abrams
Judges And Their Editors, Douglas E. Abrams
Faculty Publications
This essay discusses the roles of personal law clerks, central staff clerks, and Reporters of Decisions in editing judges’ opinions at the drafting stage. “The overarching lesson [is] that by submerging pride of authorship during an opinion’s gestation and by weighing editorial input with an open mind, judges secure in their craft advance the interests of justice.” The essay also discusses the constraints imposed by the ABA Model Code of Judicial Conduct on the circle of persons a judge may consult without giving the parties advance notice. The essay is adapted from Prof. Abrams’ address to the international meeting of …
Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg
Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg
Faculty Publications
In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …
Prosper Team, Inc. V. Workforce Appeals Board, Department Of Workforce Services, And Matt Davis : Brief Of Petitioner, Utah Court Of Appeals
Prosper Team, Inc. V. Workforce Appeals Board, Department Of Workforce Services, And Matt Davis : Brief Of Petitioner, Utah Court Of Appeals
Utah Court of Appeals Briefs (2007– 2019)
PETITION FOR REVIEW FROM THE SEPTEMBER 30, 2010 DECISION OF THE UTAH WORKFORCE APPEALS BOARD, DEPARTMENT OF WORKFORCE SERVICES' AWARD OF UNEMPLOYMENT BENEFITS
The Application Of Network Analysis To The Study Of Trial Courts, Salmon A. Shomade, Roger E. Hartley
The Application Of Network Analysis To The Study Of Trial Courts, Salmon A. Shomade, Roger E. Hartley
Political Science Faculty Publications
In the late 1960s, scholars began studying trial courts as organizations. Since the last large wave of these studies in the 1990s, there have been reforms that purport to alter state court institutions. The literature on trial courts has not yet addressed how reforms, like specialized courts, alter trial courts as organizations. Studies of trial courts could also profit from the application of other methods for analyzing organizations. This article explores the use of network analysis to examine the organizational linkages and structure of trial courts. After reviewing the literature on trial courts and recent court reforms, we make a …
Error Correction, Chad M. Oldfather
Liberty Lost: The Moral Case For Marijuana Law Reform, Eric Blumenson, Eva Nilsen
Liberty Lost: The Moral Case For Marijuana Law Reform, Eric Blumenson, Eva Nilsen
Indiana Law Journal
Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This Essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700, 000 people are arrested annually for simple marijuana possession, a small but significant proportion of the 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. We put forward two arguments corresponding to the two distinct liberty concerns implicated by laws …
Engagement's Possibilities And Limits As A Socioeconomic Rights Remedy, Brian E. Ray
Engagement's Possibilities And Limits As A Socioeconomic Rights Remedy, Brian E. Ray
Law Faculty Articles and Essays
This Article first analyzes the Constitutional Court of South Africa's three engagement decisions. It then divides engagement into two different categories--litigation engagement and political engagement--and offers suggestions for transforming the process into a more effective remedy in each category. Drawing on the work of Charles Epp, this Article argues that political engagement, if structured correctly, offers the greatest potential as an effective mechanism for enforcing socioeconomic rights. Realization of that potential will require a sustained commitment by civil society organizations active in socioeconomic rights issues and a shift from using engagement as a litigation tactic to using it as a …
Residents Of Joe Slovo Community V Thubelisha Homes And Others: The Two Faces Of Engagement, Brian E. Ray
Residents Of Joe Slovo Community V Thubelisha Homes And Others: The Two Faces Of Engagement, Brian E. Ray
Law Faculty Articles and Essays
The Constitutional Court of South Africa's "engagement remedy," at its core, is a simple requirement that government consult with residents before evicting them, as engagement offers a creative and flexible tool for advocates of socio-economic rights to enforce these provisions through both political and legal channels. Absent adequate court oversight, engagement can easily turn into nothing more than a requirement that government inform residents of its redevelopment plans. The Constitutional Court in Joe Slovo recognised these two ‘faces' of engagement and strengthened the remedy by adding components that increase the transparency of the process and enhance court control. This note …
Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute, Matt A. Vega
Michigan Journal of International Law
In the process of applying the ATS to foreign bribery, this Article will examine several unresolved issues surrounding this statutory grant. It will seek to (1) determine what constitutes a "violation of the law of nations," (2) refute the proposition that private defendants may be prosecuted under the ATS for only the most shocking and egregious jus cogens violations, (3) determine when and to what extent state action is required in ATS litigation, and (4) examine the limitations of the fundamental principles of international law on ATS litigation.
The Use Of Article 31(3)(C) Of The Vclt In The Case Law Of The Ecthr: An Effective Anti-Fragmentation Tool Or A Selective Loophole For The Reinforcement Of Human Rights Teleology?, Vassilis P. Tzevelekos
The Use Of Article 31(3)(C) Of The Vclt In The Case Law Of The Ecthr: An Effective Anti-Fragmentation Tool Or A Selective Loophole For The Reinforcement Of Human Rights Teleology?, Vassilis P. Tzevelekos
Michigan Journal of International Law
In Part I the Article will briefly introduce the question of the fragmentation of international law, and will more extensively delineate the role that the ILC attributed to Article 31(3)(c) and the ILC's expectations regarding its success in this role. Next, Part II will give an overview of the special elements of the ECHR socio-normative environment, which gave rise to the case law into which Article 31(3)(c) came into force. The Article will argue that, in addition to benefiting from the very special nature of the ECHR, the Strasbourg Court also has a significant number of interpretative tools that allow …