Courts Commons^™

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

Good Faith And The Cooperative Antagonist (Symposium On Revised Article 1 And Proposed Revised Article 2 Of The Uniform Commercial Code), James J. White

Articles

One of Karl Llewellyn's most noted achievements in the Uniform Commercial Code was to impose the duty of good faith on every obligation under the Uniform Commercial Code.1 Some (I am one) have privately thought that imposition of this unmeasurable, undefinable duty was Llewellyn's cruelest trick, but no court, nor any academic writer, has ever been so bold or so gauche as to suggest that good faith should not attend the obligations of parties under the UCC. Notwithstanding this silent indorsement of the duty of good faith, the courts2 and commentators3 have had difficulty in determining what is and what …

Charles Alan Wright And The Fragmentation Of Federal Practice And Procedure, Carl W. Tobias

Law Faculty Publications

Memorial tribute to Professor Charles Alan Wright.

Jury Selection Errors On Appeal, William T. Pizzi, Morris B. Hoffman

Publications

No abstract provided.

The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

In 1801, when William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering Secretary of State James Madison to deliver his commission as justice of the peace, he initiated one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ at the time? The short answer is "yes." Rather than making an unsuccessful attempt to invoke the original jurisdiction of the United States Supreme Court, I have learned that he could have brought his suit in the then …

Court Fixing, Tracey E. George

Vanderbilt Law School Faculty Publications

This Article critically examines the existing social science evidence on the relative importance of various individual factors on judicial behavior and adds to that evidence by considering the influence of prior academic experience on judges. Researchers have not focused much attention on the importance of a judge's background as a full-time law professor and legal scholar, although more than thirteen percent of courts of appeals appointees were former law professors. Franklin Roosevelt and Ronald Reagan both viewed the federal judiciary (particularly the Supreme Court and the Courts of Appeals) as integral to their policy agendas, and both further believed that …

Supreme Court Monitoring Of The United States Courts Of Appeals En Banc, Tracey E. George, Michael E. Solimine

Vanderbilt Law School Faculty Publications

This article considers systematically whether the Supreme Court is more likely to review an en banc court of appeals decision than a panel decision. First, we consider Supreme Court review of en banc cases during the Rehnquist Court. Then, in a multivariate empirical analysis of a three-circuit subset of those cases, we control for other variables found to influence the Court's certiorari decision, such as Solicitor General or amicus curiae support for the certiorari petition, a dissent from the court of appeal's opinion, an outcome contrary to the Court's ideological composition, and an intercircuit conflict. The discussion is situated in …

Safeguarding Juror Privacy: A New Framework For Court Policies And Procedures, Paula Hannaford-Agor

Faculty Publications

This article briefly discusses the difficulty courts face in balancing the privacy of citizens summoned for jury service with the rights of litigants and the public to information about those individuals. I propose that focusing on the content of the information re­quested of prospective jurors and the purposes for which juror infor­mation is used by courts provides a more helpful analysis than the legal framework traditionally employed in case law. Specifically, I argue that distinguishing between information that is relevant and information that is not relevant to the fairness or im­partiality of prospective jurors should be the primary analytical framework …

W(H)Ither Zschernig?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The author argues here that a declaration of victory by the critics of the dormant foreign affairs doctrine would be premature. Notwithstanding the Court's citation of Ashwander v. TVA, the actual grounds of the decision in Crosby were in no meaningful sense less "constitutional" in nature than a decision based on the dormant foreign affairs power would have been. Moreover, even though the Court said that its decision was based on a straightforward application of "settled ... implied preemption doctrine," the Court's preemption analysis was anything but ordinary. Indeed, Crosby's version of preemption analysis is subject to the …

Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal …

Collusion And Collective Action In The Patent System: A Proposal For Patent Bounties, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Persistent commentary contends that the Patent Office is issuing patents that appropriate public domain concepts at an alarming frequency. Complaints of low patent quality enjoy growing resonance with regard to business methods, computer software, and other inventions for which patents were not traditionally sought. In this article, Professor Jay Thomas explains how the judiciary's lenient view of patentable subject matter and utility standards, along with miserly congressional funding policies, have rendered the Patent Office an increasingly porous agency. Professor Thomas next reviews existing proposals for improving patent quality, including the conventional wisdom that adoption of an opposition system will contribute …

Unocal Revisited: No Tiger In The Tank, Mark J. Loewenstein

Publications

No abstract provided.

Undoing Indian Law One Case At A Time: Judicial Minimalism And Tribal Sovereignty, Sarah Krakoff

Publications

No abstract provided.

The Unsettling Of The West: How Indians Got The Best Water Rights, David H. Getches

Publications

No abstract provided.

Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser

Publications

In this Article, Professor Weiser calls for a new conception of federal-state relations to justify existing political practice under cooperative federalism regulatory programs. In particular, Professor Weiser highlights how Congress favors cooperative federalism programs--that combine federal and state authority in creative ways--and has rejected the dual federalism model of regulation--with separate spheres of state and federal authority that current judicial rhetoric often celebrates. Given the increasing dissonance between prevailing political practice and judicial rhetoric, courts will ultimately have to confront three fault lines for current cooperative federalism programs: the legal source of authority for state agencies to implement federal law, …

The Exhausted Doctrine, Letitia Ness

American Indian Law Review

No abstract provided.

Thou Shall Not Strike: Religion-Based Peremptory Challenges Under The Washington State Constitution, Justin Dolan

Seattle University Law Review

This Comment will first define the peremptory challenge and discuss its history and normative values. It will then examine the United States Supreme Court's treatment of the peremptory challenge, focusing on how the peremptory challenge has changed from a litigation device that lawyers could exercise without explanation to one that at times requires an explanation for it to survive constitutional challenge. Next, this Comment will discuss state courts' independent interpretation of fundamental rights, Washington courts' decisions in harmony with this principle, and State v. Gunwall, the guide to independent constitutional interpretation in Washington. This Comment will show that under …

Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross

Articles

In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …

State Constitutional Restrictions On Legislative Procedure: Rethinking Analysis Of Original Purpose, Single Subject, And Clear Title Challenges, Martha Dragich

Faculty Publications

Recognizing that state courts are beginning to review procedural challenges more rigorously, this Article attempts to provide guidance for the resolution of such cases. Part I examines the history, purposes, and standards of original purpose, single subject, and clear title restrictions, using Missouri's provisions as examples. Part I also identifies paradigmatic cases of each of the procedural violations with the hope of more sharply differentiating the three claims. Parts II through V present a case study of ten Missouri cases decided since 1994, supplemented with notable cases from other states. Part II begins with a brief description of the Missouri …

The Bush Administration And Appeals Courts Nominees, Carl W. Tobias

Law Faculty Publications

On May 9, President George H.W. Bush announced his first set of nominees for the United States Courts of Appeals. With a White House ceremony which chief executives traditionally reserve for United States Supreme Court designees, the president introduced eleven individuals whom he proposed for vacancies on the federal intermediate appellate courts. Submitting a package of appeals court nominees might seem to be a relatively mundane exercise. However, the developments that led to Bush's recommendations, the staging of this event, and the candidates tendered actually reveal much about contemporary judicial selection, which is a critical feature of constitutional governance. For …

Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

Equity And The Article I Court: Is The Tax Court's Exercise Of Equitable Powers Constitutional?, Leandra Lederman

Articles by Maurer Faculty

Article I courts are the other federal courts, infrequently studied despite their important role in the judiciary. This article focuses on the United States Tax Court, an Article I court that hears approximately 95 percent of litigated federal tax cases. The article argues that the Tax Court's current tendency to apply equitable doctrines when necessary to avoid harsh outcomes dictated by statute lacks constitutional authority. First, the article examines the role of Article I courts in the federal judicial system and under the Constitution. Next, it considers the historical and modern meanings of equity and equitable powers in the context …

Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova

Faculty Scholarship

No abstract provided.

Calling Children To Account: The Proposal For A Juvenile Chamber In The Special Court For Sierra Leone, Diane Marie Amann

Scholarly Works

In a unique proposal to the United Nations Security Council, U.N. Secretary-General Kofi Annan recommended that a Juvenile Chamber of the Special Court have authority to try defendants as young as fifteen. The plan sparked immediate controversy. Sierra Leoneans wanted the worst perpetrators punished regardless of age, while human rights organizations argued that juvenile prosecutions would weaken rehabilitative efforts. The Security Council subsequently diluted the proposal; nevertheless, it merits examination, given the increasing use, in Africa and around the world, of children in combat.

Legal Rights In The Supreme Court Of Canada In 2000: Seeing The Big Picture, Janine Benedet

All Faculty Publications

In 2000, the Supreme Court of Canada decided four cases which raised claims concerning some of the legal rights provisions of the Charter. Two of the cases were criminal: R. v. Darrach, [2000] 2 S.C.R. 443; R. v. Morrisey, [2000] 2 S.C.R. 90. The other two cases involved a human rights investigation (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307), and a child protection proceeding (Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519). This comment focuses on two of these decisions (Blencoe and Darrach) where the SCC considered claims under section 7 of the …

Stalking Secret Law: What Predicts Publication In The United States Courts Of Appeals, Deborah J. Merritt, James J. Brudney

Vanderbilt Law Review

For more than a quarter century, the United States Courts of Appeals have maintained two bodies of law. One is published, widely disseminated, and fully precedential. The other, now encompassing nearly 80% of all dispositions on the merits,' is unpublished, erratically distributed, and rarely precedential. What distinguishes these two sets of cases? Is it possible to predict why judges publish opinions in some cases while resolving others through unpublished opinions, memoranda, or judgment orders?

Each court has formal rules governing the publication of opinions, but those standards fail to account for variations in publication. Despite substantial overlap among circuit rules, …

They Toil Not, Neither Do They Spin: Civil Liability Under The Oregon Securities Law, Keith A. Rowley

Scholarly Works

Under Oregon law, persons who sell securities in violation of statutory registration requirements, or by means of some misrepresentation or omission of material fact, may be liable to any person or entity who buys securities from or through them. Likewise, persons who buy securities by means of some misrepresentation or omission of material fact may be liable to any person or entity who sells securities to or through them. In addition to, or in lieu of, suing the person who committed the material misrepresentation or omission, a plaintiff may sue one or more persons or entities who might be vicariously …

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

Scholarly Works

One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

Publicly Financed Judicial Elections: An Overview, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.