Courts Commons^™

Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise

Cornell Law Faculty Publications

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take?

Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this …

Courts, Reasons, And Rules, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Modifying The Kentucky Rules Of Evidence—A Separation Of Powers Issue, Robert G. Lawson

Law Faculty Scholarly Articles

How do you modify laws that simultaneously exist as statutes and rules of court? For reasons that are described elsewhere and need not be repeated here, the Kentucky Rules of Evidence (K.R.E.) came into existence through concurrent enactment by the General Assembly and Kentucky Supreme Court and thus are endowed with all the attributes of both statutes and rules of court. So, how do you change them when the inevitable need to do so arises, a question made both interesting and difficult by the fact that there is no institutional mechanism for concurrent lawmaking by the General Assembly and supreme …

What The Jury Must Hear: The Supreme Court’S Evolving Seventh Amendment Jurisprudence, Margaret L. Moses

Faculty Publications & Other Works

No abstract provided.

Sovereign Immunity, Due Process, And The Alden Trilogy, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Alden v. Maine, the Court held that the principle of sovereign immunity protects states from being sued without their consent in their own courts by private parties seeking damages for the states' violation of federal law. The Court thus rejected the "forum allocation" interpretation of the Eleventh Amendment, under which the Amendment serves merely to channel suits against the states based on federal law into the state courts, which are required by the Supremacy Clause to entertain such suits. The Court held instead that the Eleventh Amendment protects the states from being subjected to private damage liability by …

Filling The Federal Appellate Openings On The 9th Circuit, Carl W. Tobias

Law Faculty Publications

Throughout much of the 1990s, the United States Court of Appeals for the 9th Circuit has operated with fewer than the court's complete complement of 28 active judges. Since 1995, when Republican senators representing states of the Pacific Northwest instituted a serious campaign to divide the 9th Circuit, the court has essentially functioned absent one-fourth of its membership. The large number of openings and their protracted nature, as well as a steadily expanding docket, have demanded that the 9th Circuit depend on many appellate and district court judges who are not active members of the 9th Circuit when staffing three-judge …

Prejudice, Confusion, And The Bifurcated Civil Jury Trial: Lessons From Tennessee, Steven S. Gensler

Faculty Articles

No abstract provided.

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …

Special Division Agonistes, John Q. Barrett

Faculty Publications

When the independent counsel law sank, the casualties included a special "division" of the United States Court of Appeals for the District of Columbia Circuit. This division was the special court that Congress had created "for the purpose of appointing independent counsels." The now-expired 1994 independent counsel statute had, like its three predecessors, directed the Chief Justice of the United States to appoint three judges from the Supreme Court and/or the federal Courts of Appeals to serve on the special court for two-year terms. This independent counsel court, which was located for administrative purposes in the United States Court of …

A Generation Spent Studying The U.S. Courts Of Appeals: A Chronology, Thomas E. Baker

Faculty Publications

No abstract provided.

[1999 Developments Concerning] International Courts And Tribunals, Roger P. Alford, Peter H.F. Bekker, Mark B. Rees

Journal Articles

The most significant developments in 1999 regarding international courts and tribunals are reviewed herein, particularly events relating to the International Court of Justice, the United Nations Compensation Commission, the Iran-U.S. Claims Tribunal, the Claims Resolution Tribunal for Dormant Accounts in Switzerland, and the International Commission on Holocaust Era Insurance Claims. Other significant developments relating to the creation of the permanent International Criminal Court, the International Criminal Tribunal for former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Tribunal for the Law of the Sea, and the World Trade Organization Dispute Settlement Mechanism are detailed in other reports in this …

A Market-Based Solution To The Judicial Clerkship Selection Process, Edward S. Adams

Maryland Law Review

No abstract provided.

Protecting Native Americans: The Tribe As Parens Patriae, Cami Fraser

Michigan Journal of Race and Law

This Note argues that Tribes have parens patriae standing to protect their citizens through litigation on their behalf, even if not all of their citizens are engaged in the litigation. Part I examines the current requirements of parens patriae standing, as articulated by the Supreme Court. Part II briefly examines the nature of tribal sovereignty within American jurisprudence and concludes that parens patriae standing is a retained right of the Tribes. Part III examines the way in which the Federal District Courts have incorrectly handled tribal parens patriae standing. This section argues for a reexamination of Supreme Court doctrine when …

Tort Suits For Injuries Sustained During Illegal Abortions: The Effects Of Judicial Bias , Gail D. Hollister

Faculty Scholarship

Most courts hold that, by agreeing to have an illegal abortion, a woman forfeits her right to recover for injuries tortuously inflicted during that abortion. Nevertheless, most courts do permit suits by those injured in the course of committing other crimes, and they usually do so without considering whether plaintiff's criminal conduct should prevent recovery. Part II of this Article explores and discredits the reasons offered for prohibiting recovery in abortion suits. 21 Part III analyzes, on a chronological basis, each state's decisions prohibiting such recovery. Part IV discusses possible explanations for the abortion decisions, noting that these women's claims …

Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker

Articles

The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means …

Contract Reading' In Labor Arbitration, Theodore J. St. Antoine

Articles

A quarter century ago, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the "contract reader," it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator's award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: "What the arbitrator says this contract means is exactly what we meant …

License To Copyright: The Ongoing Dispute Over The Ownership Of James Bond, Keith Poliakoff

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The White Commission And The Federal Circuit, Carl W. Tobias

Law Faculty Publications

The Commission on Structural Alternatives for the Federal Courts of Appeals, or White Commission, ("the Commission") recently issued a report and recommendations for Congress and the President after studying the appellate courts for a year. The Commission investigation emphasized the United States Court of Appeals for the Ninth Circuit, as Congress had instructed. The centerpiece of the Commission's recommendations was a divisional arrangement for the Ninth Circuit and the remaining appellate courts as their caseloads increase. Notwithstanding this focus on the Ninth Circuit, the commissioners compiled a substantial amount of objective empirical data and some subjective information on the other …

Taking Regulatory Takings Personally: The Perils Of (Mis)Reasoning By Analogy, Michael Allan Wolf

Law Faculty Publications

In a troublesome area of the law, it is hard for a legal academic to resist the temptation to attempt to "enlighten" the judiciary. It has not been the author's practice to date, in ruminating on the profound puzzle of regulatory takings, to instruct judges concerning the errors of their ways. Because only an insider can be truly familiar with the nuances of a specific legal challenge and owing to a deep respect for the judicial craft, this writer has resisted the urge to preach. It has been a sufficiently provocative challenge to interpret the meanings and implications of decisions …

The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe

Osgoode Hall Law Journal

Chief Justice Brian Dickson played a central role in the elaboration of the fundamental values of the Canadian Constitution. He took a balanced approach to federalism, favouring neither federal nor provincial claims and inviting cooperation through overlapping jurisdiction. Dickson transformed the rule of law from a background value to an operative constitutional principle. His judgments on the rights of minorities reflect a remarkable empathy for the plight of the disadvantaged. Democracy informed all aspects of his constitutional thinking. Dickson rejected the contention that judicial review is anti-democratic, and his constitutional legacy reflects a sustained effort to harmonize all four fundament …

Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins

Faculty Publications

No abstract provided.

The Annihilation Of Sea Turtles: Wto Intransigence And U.S. Equivocation, Lakshman Guruswamy

Publications

No abstract provided.

Delaware As Demon: Twenty-Five Years After Professor Cary's Polemic, Mark J. Loewenstein

Publications

No abstract provided.

Courtroom Technology, A Judicial Primer, Fredric I. Lederer

Faculty Publications

No abstract provided.

Why Should The Prosecutor Get The Last Word?, John B. Mitchell

Faculty Articles

This article examines reasons the prosecutor should make the closing arguments in the United States. It also examines the importance of closing arguments; the advantages of going first and the scientific bases of primacy; and the advantages of rebuttal.

Strategic Voting On Multimember Courts, Evan H. Caminker

Articles

In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment. In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court.

Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier

Articles

The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …

Larry B. Rentmeister V. June R. Desilvia, James Howard Rentmeister, Donald Neil Rentmeister, Trustees Of The Estate Of Della Zillah C. Rentmeister : Brief Of Respondent, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Appeal from the Judgment of the District Court of Weber County, Honorable Calvin Gould, Judge

Sterling B. Cannon, George H. Maxwell, Dave Davis, Art Van Luyx, And Terry Teeples V. Stevens Schools Of Business, Inc. : Response To Petition For Rehearing, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Appeal from a Judgment of the District Court of Salt Lake County Honorable Stewart M. Hanson, Sr., Judge

Cardozo The [Small R] Realist, Richard D. Friedman

Reviews

In Part I of this Review, I will discuss aspects of Cardozo's life and character. In Part II, I will discuss Cardozo's jurisprudential theory as revealed in his lectures and essays. In Part IlI, I will suggest how we gain a better perspective on his judicial opinions by understanding not only that theory but also the man and his life.