Courts Commons^™

Moral Character, Motive, And The Psychology Of Blame, Janice Nadler, Mary-Hunter Morris Mcdonnell

Faculty Working Papers

Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor's intentionality, causal proximity to harm, and the harm's foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage. In this Article we focus on two highly related motivational processes – the desire to …

If The Shoe Fits They Might Acquit: The Value Of Forensic Science Testimony, Jonathan Koehler

Faculty Working Papers

The probative value of forensic science evidence (such as a shoeprint) varies widely depending on how the evidence and hypothesis of interest is characterized. This paper uses a likelihood ratio (LR) approach to identify the probative value of forensic science evidence. It argues that the "evidence" component should be characterized as a "reported match," and that the hypothesis component should be characterized as "the matching person or object is the source of the crime scene sample." This characterization of the LR forces examiners to incorporate risks from sample mix-ups and examiner error into their match statistics. But how will legal …

The Dignity, Rights, And Responsibilities Of The Jury: On The Structure Of Normative Argument, Robert P. Burns

Faculty Working Papers

Many theorists follow an inevitably circular method in evaluating legal institutions and practices. "Considered judgments of justice" embedded in practices and institutions in which we have a high level of confidence can serve as partial evidence for the principles with which they are consistent, principles that can then have broader implications. Conversely, principles that we have good reason to embrace can serve as partial justification for institutions and practices with which they are consistent. This is the heart of Rawls' notion of "reflective equilibrium," where we "work at both ends" to justify institutions, practices, and principles. This method is applicable …

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Volume 78 (2010-2011)

Tennessee Law Review

No abstract provided.

Building The International Criminal Court, Anita Usacka

Global Business & Development Law Journal

No abstract provided.

Limiting Legislative Courts: Protecting Article Iii From Article I Evisceration, Kenneth G. Coffin

Barry Law Review

This article will analyze possible limitations on Congress’ Article I power, concluding that separation of powers jurisprudence offers a practical and appropriate manner in which to check Congressional overreach. Part I traces the development of Congress’ power to create Article I courts. Part II critically evaluates the Northern Pipeline opinions, ultimately finding neither Justice Brennan’s nor Justice White’s conflicting opinions satisfactory. Part III briefly discusses several possible limiting principles on Article I courts before concluding that separation of powers jurisprudence offers a meaningful and pragmatic solution to the problem. Part IV tests the practicality of this new separation of powers …

Special Court For Sierra Leone: Achieving Justice?, Charles Chernor Jalloh

Faculty Publications

The Sierra Leone war, which lasted between 1991 and 2002, gained notoriety around the world for “blood" or "conflict" diamonds and some of the worst atrocities ever perpetrated against civilians in a modern conflict. On January 16, 2002, the United Nations and the Government of Sierra Leone signed an historic agreement to establish the Special Court for Sierra Leone (SCSL). In setting up a new type of ad hoc criminal tribunal, the parties sought to achieve two key objectives. First, to dispense credible justice by enabling the prosecution of those bearing greatest responsibility for the wartime atrocities based on international …

Finding Access To The Federal Courts: How The Inconsistent Application Of Federal Jurisdiction In Cases With Significant Foreign Relations Implications Affects Mining And Agriculture Industries, Rebecca C. Griffin

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Pushing The Limits Of Global Governance: Trading Rights, Censorship And Wto Jurisprudence -- A Commentary On The China-Publications Case, Julia Ya Qin

Law Faculty Research Publications

For decades, China has maintained State import monopoly in cultural products. The opaque State trading operations ensure a maximum level of flexibility and efficacy in the government censorship of imports. The WTO judiciary held in the China-Publicationscase that this practice is inconsistent with China's trading rights commitments under its Accession Protocol and cannot be justified by the public morals exception of the General Agreement on Tariffs and Trade. To comply with the WTO ruling, China must restructure its censorship regime, which it apparently is not prepared to do. This article analyses the implications of the WTO decision and provides a …

The Reason Behind The Rules: From Description To Normativity In International Criminal Procedure, Noah Weisbord

Faculty Publications

As the International Criminal Court (ICC) continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined.

This article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure …

Judging Aggression, Noah Weisbord

Faculty Publications

One of the most polarizing debates in international law is how the goal of peace should figure into the work of international criminal tribunals. The freshly minted crime of aggression lands the judges of the International Criminal Court in the middle of the peace versus justice dilemma and will challenge the court to prove its value for advancing peace in appropriate circumstances while building the rule of law and maintaining its legitimacy.

This article, the final installment in the author's trilogy on the crime of aggression, explores the gaps, ambiguities and contradictions woven into the definition of the crime and …

The United States And The International Criminal Court Post-Bush: A Beautiful Courtship But An Unlikely Marriage, Megan A. Fairlie

Faculty Publications

The article focuses on the relationship status between the U.S. and the International Criminal Court (ICC) from being dormant due to being renewed. The renewal was evident from the U.S. representation at the 2009 ICC's Assembly of States Parties annual meeting and the 2010 ICC Review Conference. Using the Rome Statute, the ICC has been granted subject matter jurisdiction over war crimes, crimes against humanity and genocide.

The United States Court Of Appeals For Veterans Claims: Has It Mastered Chevron's Step Zero?, Linda Jellum

Articles

No abstract provided.

Supreme Court Institute Annual Report, 2010-2011, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the 2010-2011 academic year--corresponding to the U.S. Supreme Court’s October Term (OT) 2010--the Supreme Court Institute (SCI) provided moot courts for advocates in over 93% of the cases heard by the Court this Term; sponsored a range of programming related to the Supreme Court; and hosted delegations of lawyers and judges visiting from Britain, Rwanda, Kosovo, Korea, China, and Germany. A list of all SCI moot courts held in OT 2010, listed by sitting and date of moot and including the name and affiliation of each advocate and the number of student observers, follows the narrative portion of this …

The Gender Jurisprudence Of The Special Court For Sierra Leone: Progress In The Revolutionary United Front Judgments, Valerie Oosterveld

Law Publications

No abstract provided.

2010 Trademark Law Decisions Of The Federal Circuit, Susan B. Flohr, Emily J. Barnhart, John Paul Oleksiuk

American University Law Review

No abstract provided.

Differentiating The Federal Circuit, Elizabeth I. Winston

Scholarly Articles

In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished. Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit’s structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction – the very essence of the court sets it apart …

When Will Race No Longer Matter In Jury Selection?, Bidish Sarma

Michigan Law Review First Impressions

We are coming upon the twenty-fifth anniversary of the Supreme Court's opinion in Batson v. Kentucky, which made clear that our Constitution does not permit prosecutors to remove prospective jurors from the jury pool because of their race. The legal question in Batson-when, if ever, can governmental race discrimination in jury selection be tolerated?-was easy. The lingering factual question, however-when will prosecutors cease to discriminate on the basis of race?-has proven far more difficult to answer. The evidence that district attorneys still exclude minorities because of their race is so compelling that it is tempting to assume that race will …

Teva V. Eisai: What's The Real Controversy, Grace Wang

Michigan Telecommunications & Technology Law Review

This Note examines the changing role of declaratory judgment actions in challenging patents upon generic entry and evaluates alternative regulatory schemes to the FDA's current system of patent enforcement in the drug approval setting. Part I reviews the Federal Circuit's recent decisions regarding generic drug entry, focusing on how the courts justify declaratory judgments in the current system and when a "controversy" exists to create Article III jurisdiction. Part II examines the complex system of regulating generic drug entry and how attempts to stop the exploitation of loopholes have resulted in a patchwork of regulation by various parties. It challenges …

Successes And Failures In International Human Trafficking Law, Luis Cdebaca

Michigan Journal of International Law

Professor Carr yesterday remarked that human trafficking is too often discussed only in theoretical or academic ways. I've spent most of my career in the field, where interactions with victims, traffickers, and defense attorneys are anything but theoretical. But as keynote speaker for an academic symposium this morning, I'm going to try to lay out a bit of the conceptual state of play from my current vantage point. The title of this symposium, "Successes and Failures in International Human Trafficking Law," is a bit binary. Perhaps, in the best diplomatic tradition, we can temper that to "Limitations and Opportunities in …

Legislative Intent And Legislative History In Michigan, Kincaid C. Brown

Law Librarian Scholarship

Determining legislative intent is one of the key roles that the judicial system plays in Michigan, and legislative history can be a useful tool for evaluating the intent of the legislature when enacting a law. However, legislative history resources can be difficult to gather and some resources may not be persuasive in Michigan courts. This article provides a brief description of the Michigan legislative process, the court’s view of using legislative history to determine legislative intent, and a list of Michigan legislative history resources.

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth G. Thornburg, Camille Cameron

Faculty Journal Articles and Book Chapters

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

Articles

Enforcing federalism is most commonly thought to involve the search for a constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution's commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress has exceeded its authority in reenacting the Voting Rights Act's preclearance requirements. …

Untangling The Twists Of Habeas Corpus, Larry Yackle

Faculty Scholarship

Take it from me. The one job you don't want is sorting out federal habeas corpus. By all accounts, existing arrangements are an unrelieved disaster. Yet now come Nancy King and Joseph Hoffmann with a valiant effort to set things in order. Their book describes habeas corpus as the writ currently stands, offers explanations of why and how we have come to this pass, and, most important, advances a definite plan of action for habeas in criminal cases-a way to fix what so desperately needs fixing. This is a good book, a valuable book. It is informative, essentially accurate in …

Fueling Controversy, Randy Beck

Scholarly Works

In a recent Yale Law Journal article, Linda Greenhouse and Reva Siegel question the received wisdom that the Supreme Court’s decision in Roe v. Wade generated a political backlash, inflaming conflict over abortion and damaging the political process. The evidence they highlight shows that political conflict over abortion predated the Roe opinion, spurred by the Catholic Church and by Republican Party strategists seeking to foster party realignment. This enriched picture of the political and social landscape at the time of the decision undermines any simplistic suggestion that Roe served as “the sole cause of backlash” or “single-handedly caused societal polarization …

Responses To The Ten Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Ask And What Shall Ye Receive? A Guide For Using And Interpreting What Jurors Tell Us, Barbara O'Brien, Samuel R. Sommers, Phoebe C. Ellsworth

Articles

We review the extensive body of studies relying on jurors' self-reports in interviews or questionnaires, with a focus on potential threats to validity for researchers seeking to answer particularly provocative questions such as the influence of race in jury decision-making. We then offer a more focused case study comparison of interview and questionnaire data with behavioral data in the domain of race and juror decision-making. Our review suggests that the utility of data obtained from juror interviews and questionnaire responses varies considerably depending on the question under investigation. We close with an evaluation of the types of empirical questions most …

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

All Faculty Scholarship

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

Reverse Incorporation Of State Constitutional Law, Joseph Blocher

Faculty Scholarship

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to …