Courts Commons^™

Constitutional Precedents In Japan: A Comment On The Role Of Precedent, Shigenori Matsui

All Faculty Publications

Japan is a civil law country, and the precedent of the Supreme Court is not binding on either the Supreme Court itself or lower courts. Judges are supposed to return to the text of the statute for each legal dispute and apply the rules to specific cases. Judicial decisions are not law to be applied by the courts. However, since judges have followed the precedent of the Supreme Court most of the time, these precedents have a de facto binding power even though they are not legally binding. In this Comment, the author focuses on constitutional law precedents to illustrate …

Revitalizing Motive And Opportunity Pleading After Tellabs, Marvin Lowenthal

Michigan Law Review

Congress passed the Private Securities Litigation Reform Act of 1995 ("PSLRA") to prevent frivolous lawsuits that had been draining resources from businesses. This legislation included provisions for heightening the pleading requirements for the scienter, or state of mind, requirement for securities law violations. Many circuit courts debated whether the motive and opportunity test for scienter, applied initially by the Second and Third Circuits, survived the passage of the PSLRA. This Note argues that while the motive and opportunity test has been discounted by numerous circuits, it not only remains viable for pleading scienter under the PSLRA, but it accomplishes the …

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers can be excluded without …

The Case For Rebalancing Antitrust And Regulation, Howard A. Shelanski

Michigan Law Review

The continued growth of forensic DNA databases has brought about greater interest in a search method known as "familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …

Super Deference, The Science Obsession, And Judicial Review As Translation Of Agency Science, Emily Hammond Meazell

Michigan Law Review

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …

Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger

Michigan Law Review

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …

The Demise Of Class Actions Will Not Be Televised, Benjamin Sachs-Michaels

Cardozo Journal of Conflict Resolution

As evidenced by two recent Cardozo Journal of Conflict Resolution articles, class action waivers in arbitration clauses are currently a hot topic in the field of conflict resolution. With increasing frequency, arbitrators and courts are presented with class action waivers in compulsory arbitration agreements prohibiting the aggregation of claims. This Note argues that some courts have reversed course in their treatment of class action waivers contained in arbitration clauses. There is a new movement to find class waivers, and the arbitration clauses that harbor them, unenforceable. This Note further argues that while plaintiffs uniformly oppose class action waivers, defendants widely …

Alternative Dispute Resolution Expands Into Pre-Trial Practice: An Introduction To The Role Of E-Neutrals, Allison O. Skinner

Cardozo Journal of Conflict Resolution

Alternative dispute resolution is a viable tool for case management. The use of a third party neutral for resolving discovery disputes and related pre-trial issues offers litigants an alternative for managing the pre-trial phase of a lawsuit in an efficient manner. Alternative dispute resolution is expanding into pre-trial practice in response to two forces: 1) Judicial budgetary constraints; and 2) E-discovery. Both factors require litigants to approach discovery in a manner that meets Federal Rule of Civil Procedure 1-"just, speedy and inexpensive determination of every action and proceeding"-and Federal Rule of Civil Procedure 37-"Failure to Make Disclosures or to Cooperate …

Religious Freedom, Church-State Separation, And The Ministerial Exception, Thomas C. Berg, Kimberlee Wood Colby, Carl H. Esbeck, Richard W. Garnett

Journal Articles

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

Beyond Principal-Agent Theories: Law And The Judicial Hierarchy, Pauline Kim

Scholarship@WashULaw

This Essay critically examines the commonplace use by judicial politics scholars of principal-agent models to describe the federal judicial hierarchy. It argues that agency models are useful in highlighting certain aspects of the interaction between upper and lower courts - specifically, the existence of value conflicts and informational asymmetries - but that in other ways traditional principal-agent models fit poorly the relationship between the lower federal courts and the Supreme Court. As a consequence, these models tend to obscure important normative questions about the relationship between lower and upper courts, as well as to distort the role that law plays …

Congress, The Supreme Court, And Judicial Review: Testing A Constitutional Separation Of Powers Model, Stefanie A. Lindquist, Jeffrey A. Segal, Chad Westerland

Scholarship@WashULaw

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current …

Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh

Faculty Publications

Culturally based litigation practices are central to the policies of federal courts. Unlike the Federal Rules of Civil Procedure, cultural based practices are neither uniform nor explicitly defined among the federal courts. These practices are specifically tailored to ensure judicial efficiency, and in turn, they heavily influence practice and procedure in federal courts. This Article examines the significance of cultural litigation practices and their influence on amending or establishing new Federal Rules of Civil Procedure. The author proposes that rulemaking must compliment cultural practices in order to be successful and concludes that when conflict exists between these practices and rulemaking, …

Passive-Voice References In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

The Supreme Court regularly references grammar rules when interpreting statutory language. And yet grammar references play a peculiar role in the Court's statutory cases—often lurking in the background and performing corroborative work to support a construction arrived at primarily through other interpretive tools. The inevitable legisprudential question triggered by such references is, why does the Court bother? If grammar rules provide merely a second, third, or fourth justification for an interpretation reached through other interpretive canons, then what does the Court gain—or think it gains—by including such rules in its statutory analysis?

This essay examines these questions through the lens …

A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution, Vartges Saroyan

Cardozo Journal of Conflict Resolution

This Note proceeds in five parts. Part I provides a historical background of the events prior to and during the Armenian Genocide, and the claims arising out of the Genocide. Part II discusses the status of Genocide restitution and the roadblocks that continue to prevent widespread recovery. Part III explains the timeline of the Holocaust restitution movement and how advocates for restitution were finally able to have some success. Part IV proposes that Genocide-era claims be sought not only by filing lawsuits, but also by creating momentum through negotiation and other principles of ADR. Part V concludes by reiterating the …

After The Ecj's West Tankers: The Clash Of Civilizations On The Issue Of An Anti-Suit Injunction, Grace Gunah Kim

Cardozo Journal of Conflict Resolution

This Note argues that the ECJ's West Tankers decision to ban an anti-suit injunction in Europe, coupled with the recent European Commission's reform proposals to govern arbitration within the jurisdictional framework of the Brussels Regulation No. 44/ 2001 ("Brussels Regulation"), directly clash with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") and practically amount to a blanket rule that bars English courts from upholding arbitration agreements.

Orphaned Art Consignors: Confusion In The Courts And The Ucc, Michael Madigan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

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 …

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 …

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

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 …

The American "Rule": Assuring The Lion His Share, James Maxeiner

All Faculty Scholarship

Court costs in American civil procedure are allocated to the loser (“loser pays”) as elsewhere in the world. When American civil procedure took shape in the 1840s, American lawyers thought that losing parties ought to indemnify winning parties against all expenses of lawsuits. Yet today, attorneys’ fees – the lion’s share of expenses in the words of the General Report – are not allocated this way. By practice – and not by legal rule – attorneys’ fees fall on the parties that incur them. Those fees are not set by statute or court decision, but by agreement between parties and …

Administrative Change, Randy J. Kozel, Jeffrey A. Pojanowski

Journal Articles

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

The Use Of The Intent Doctrine To Expand The Rights Of Intended Homosexual Male Parents In Surrogacy Custody Disputes, Perri Koll

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the expansion of parental rights for homosexual male couples through surrogacy by promoting the intent doctrine and amending existing laws. It highlights the inconsistency in legal approaches across states and suggests that recognizing intended parenthood, regardless of sexual orientation, is essential for equality. The proposed solutions include adopting the intent doctrine nationwide and revising the Uniform Parentage Act to include same-sex couples.

Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin

Akron Law Faculty Publications

This Article advocates that the Supreme Court recalibrate the avoidance canon used in Erie cases in which Federal Rules are in potential conflict with state law. The Article examines the Court’s historical use of avoidance in Erie cases, observing that contemporary jurists inappropriately conflate the purposes of pre- and post-Hanna avoidance when they conclude that avoidance in both periods protected state interests. Avoidance in the post-Hanna period has been premised on protecting important state interests and regulatory policies, but pre-Hanna avoidance attempted, with mixed success, to protect the Federal Rules. The Article also reveals that the Court’s post-Hanna federalism focus …

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.

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 …

Is The "Post" In Post-Racial The "Blind" In Colorblind?, Ian F. Haney López

Cardozo Law Review

No abstract provided.

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 …