Courts Commons^™

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 …

Conspicuous Logic: Using The Logical Fallacy Of Affirming The Consequent As A Litigation Tool, Stephen M. Rice

Barry Law Review

This article will address one of the specific logical fallacies known as the Fallacy of Affirming the Consequent, discuss the place of formal logic in legal reasoning, describe the Fallacy of Affirming the Consequent, demonstrate how courts have explicitly used the fallacy in deciding cases, and detail how litigators can use the Fallacy to win cases.

“Runaway Train”: Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl

Barry Law Review

This paper will argue that, in the absence of effective alternatives, the new law granting court-martial jurisdiction over civilians is a necessary step in effectively controlling crimes by private contractors and other civilians accompanying U.S. armed forces overseas if other measures are not effectuated. Part II will look at two important Supreme Court decisions that currently restrict the military’s ability to court-martial civilians, and it will also highlight the government’s attempts over the past 50 years to come up with a solution to the problem. Part III will examine three alternatives to the amendment to Article 2(a)(10) that could make …

In The Trenches Of Florida’S War On Gangs: A Framework For Prosecuting Florida’S Anti-Gang Sentence Enhancement Provision, Rodrigo M. Caruço

Barry Law Review

This article discusses how the State of Florida prosecutes under the new sentence enhancement provision of Florida’s anti-gang statute. Part I discusses the general history of the provision. Part II analyzes different state approaches to the enhancement provision. Finally, Part III concludes the article with two recommendations. First, a statutory response that provides all courts in the State with clear direction to implement this provision. Second, a judicial approach for Florida courts to consistently implement a provision that is essential to Florida’s war on criminal gangs.

Addict First, Criminal Second – Addiction Fueled Crimes Should Be Ineligible For The Three-Strikes Penalty, Scott Lindquist

Barry Law Review

The author of this article argues that drug addicts who finance their addiction through crime should be ineligible to receive a prison sentence under a recidivist statute like the three-strikes penalty. Part I introduces the problem, addiction and crime among current prisoners reported by the Department of Justice. Part II discusses Gary Ewing, an addict, a criminal, and a third strike offender. The story of Gary Ewing represents the injustices levied upon an addict/criminal by enhanced sentenced statutes like the three-strikes penalty. Part III is a discussion of the history of repeat offender statutes, primarily focusing on the inception of …

The 'Show' In The 'Show Trial': Contextualizing The Politicization Of The Courtroom, Awol K. Allo

Barry Law Review

Questioning the indifference of the law to its own normative correctness and its claim to legitimacy, this article explores the epistemological and ontological foundations upon which the concept and lexicon of show trial is predicated. By invoking the theory of performativity, the article distinguishes between the different models of show trials to allow for a more complex and nuanced reading of the particular nature of the show in judicial practices often called ‘show trials.’ By emphasizing the peculiarity of the ‘show’ in each ‘show trial’, the article seeks to reconceptualize the ambit of the criminal trial. Arguing against the emphasis …

Book Review: Bob Rains, True Tales Of Trying Times: Legal Fables For Today (2008), Erik M. Jensen

Nevada Law Journal

In this jewel of a book, Rains presents a collection of fifty-two fabulous "legal fables," each describing real judicial decisions from the last four or five years- in that respect, not fables at all. Unlike the typical law review article, his book actually deals with the law. And Rains's poetic commentary accompanies all the fables. Like much of Rains's work, the book has both rhyme and reason.

Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.

Does Monopoly Broth Make Bad Soup?, Daniel A. Crane

Articles

There is an oft-repeated maxim in U.S. antitrust law that a monopolist's conduct must be examined in its totality in order to determine its legality. Judges admonish that plaintiffs "should be given the full benefit of their proof without tightly compartmentalizating the various factual components and wiping the slate clean after scrutiny of each." As the U.S. Court of Appeals for the Seventh Circuit stated in much-quoted language, "It is the mix of various ingredients ... in a monopoly broth that produces the unsavory flavor."' In this article, I examine the use and misuse of monopoly broth theories. Reflecting a …

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar

Faculty Publications

This Article examines the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court's and individual Justices' rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions to the field of …

The Misuse Of Textualism: A Further Reply To Prof. Kahn, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

Because readers have already endured four articles, two by me and two by Prof. Douglas A. Kahn, debating the meaning of section 67(e)(1), I am reluctant to respond to Prof. Kahn’s rejoinder, which appeared in the January 18 issue of Tax Notes. Nevertheless, our disagreement implicates the judicial craft of two U.S. Supreme Court members, Chief Justice John Roberts and Justice Sonia Sotomayor. I therefore feel it important to answer Prof. Kahn’s latest contentions, recognizing my duty to be as brief as possible.

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Current Issues In Judicial Disqualifications Symposium 2011, Michael W. Martin

Faculty Scholarship

Public confidence in the judiciary's integrity is critical, and

E Pluribus Unum: Data And Operations Integration In The California Criminal Justice System, W. David Ball

Faculty Publications

This Article reflects some of the insights from the Stanford Criminal Justice Center's (SCJC's) year-long project on data and operations integration in California's criminal justice system. Part I lays out some of the benefits of an integrated system as a means of illustrating why law enforcement agencies across the state are actively pursuing data integration. Part II discusses three organizational and political obstacles to creating an integrated system: defining what we mean by  the criminal justice "system," drawing boundaries of relevant networks, and resolving tensions among state and local agencies with concurrent jurisdiction. Part III then discusses three ways in …

A Twilight Zone No More: The Arkansas Supreme Court Provides Tort Reform Drafting Tips While Distancing Itself From Deference To The General Assembly In Johnson V. Rockwell Automation, Inc., Jodie L. Hill

University of Arkansas at Little Rock Law Review

No abstract provided.

Improving Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

Review of Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (2006).

International Criminal Courts And The Making Of Public International Law: New Roles For International Organizations And Individuals, Kenneth S. Gallant

Law Faculty Scholarship

Judicial decisions of the International Criminal Court and other international criminal tribunals now serve as instances of practice and statements of opinio juris for the formation of customary international criminal law and customary international human rights law related to criminal law and procedure. In these areas of law and others, they are no longer “subsidiary” sources as that word is used in the International Court of Justice Statute, Art. 38. In the same fields of customary international law, other binding acts of international organizations, such as the UN Security Council, are also used as practice, and the statements of these …

Cooperative Interbranch Federalism: Certification Of State-Law Questions By Federal Agencies, Verity Winship

Vanderbilt Law Review

When an unresolved state-law question arises in federal court, the court may certify it to the relevant state court. The practice of certification from one court to another has been widely adopted and has been touted as "help[ing] build a cooperative judicial federalism." This Article proposes that states promote cooperative interbranch federalism by allowing federal agencies to certify unresolved state-law questions to state courts. It draws on Delaware's recent expansion of potential certifying entities to the Securities and Exchange Commission to argue that this innovation should be extended to other states and other federal agencies. Certification from federal agencies to …

"Objection: Your Honor Is Being Unreasonable!"--Law And Policy Opposing The Federal Sentencing Order Objection Requirement, Benjamin K. Raybin

Vanderbilt Law Review

"I think you ought to object, counselor," boomed the judge.' One could not help but to be taken aback: this instruction was not directed towards a pro se defendant, nor was it addressing an action by an opposing party. Instead, the judge had actually suggested-with a straight face and a hint of irony-that an attorney object to the sentence the judge had just imposed. Unlike the attorney, the judge had been following the development of a quirk in the circuit's sentencing law. In United States v. Vonner, the Sixth Circuit had recently held that a party must object to a …

Wrongful Convictions In Singapore: A General Survey Of Risk Factors, Siyuan Chen, Eunice Chua

Research Collection Yong Pung How School Of Law

This article seeks to raise awareness about the potential for wrongful convictions in Singapore by analysing the factors commonly identified as contributing towards wrongful convictions in other jurisdictions, including institutional failures and suspect evidence. It also considers whether the social conditions in Singapore are favourable to discovering and publicising wrongful convictions. The authors come to the conclusion that Singapore does well on a number of fronts and no sweeping reforms are necessary However there are areas of risk viz the excessive focus on crime control rather than due process, which require some tweaking of the system.

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Journal Articles

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …

Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson

Articles

In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of the new …

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, …

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 …

Defending Juveniles Facing Life Without Parole In Michigan, Kimberly A. Thomas

Articles

In Graham v. Florida, the United State Supreme Court held that life without parole could not be imposed on a juvenile offender for a non-homicide crime. This article discusses the challenges, under the Eighth Amendment and the Michigan Constitution, to the sentence of life without parole imposed on someone 17 years old or less.

Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane

Articles

The Federal Trade Commission’s (“FTC’s”) unprecedented enforcement action against Intel raises profound issues concerning the scope of the FTC’s powers to give a construction to Section 5 of the FTC Act that goes beyond the substantive reach of the Sherman Act. While I have urged the FTC to assert such independence from the Sherman Act, this is the wrong case to make a break. Indeed, if anything, Intel poses a risk of seriously setting back the development of an independent Section 5 power by provoking a hostile appellate court to rebuke the FTC’s effort and cabin the FTC’s powers in …

A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn

Vanderbilt Journal of Transnational Law

Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system. This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic …

Substantive Canons And Faithful Agency, Amy Coney Barrett

Journal Articles

Federal courts have long employed substantive canons of construction in the interpretation of statutes. For example, they apply the rule of lenity, which directs that ambiguous criminal statutes be interpreted in favor of the defendant, and the avoidance canon, which directs that statutes be interpreted in a manner that prevents the court from having to address serious constitutional questions. They also apply so-called “clear statement” rules — for example, absent a clear statement from Congress, a federal court will not interpret a statute to abrogate state sovereign immunity. While some commentators have attempted to rationalize these and other substantive canons …

A Fourth Circuit Photograph, Carl W. Tobias

Law Faculty Publications

The Commission on Structural Alternatives for the Federal Courts of Appeals issued a report and proposals after carefully evaluating the appellate system for a year, while the data have minimally changed since the report's issuance. The Commission's principal focus was the Ninth Circuit, as Congress had instructed, yet the Commission assembled much useful information on each circuit court of appeals and found that all operate efficaciously. Because how the Fourth Circuit addresses a large docket is critical to appellate justice, the Commission's analysis of the tribunal and the court itself merit scrutiny, which this Article undertakes.

Part I of this …