Courts Commons^™

Developing A Positive Theory Of Decisionmaking On U.S. Courts Of Appeals, Tracey E. George

Vanderbilt Law School Faculty Publications

As the decisions of the United States Courts of Appeals become an increasingly important part of American legal discourse, the debate concerning adjudication theories of the circuit courts gain particular relevance. Whereas, to date, the issue has received mostly normative treatment, this Article proceeds systematically and confronts the positive inquiry: how do courts of appeals judges actually decide cases? The Article proposes theoretically, tests empirically, and considers the implications of, a combined attitudinal and strategic model of en banc court of appeals decision making. The results challenge the classicist judges, legal scholars, and practitioners' normative frameworks, and suggest positive theory's …

Breard And The Federal Power To Require Compliance With Icj Orders Of Provisional Measures, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Among the puzzling aspects of the Breard episode was the Clinton administration's claim that the decision whether or not to comply with the Order of the International Court of Justice requiring the postponement of Breard's execution lay exclusively in the hands of the Governor of Virginia. The ICJ's Order provided that"[t]he United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings." The Clinton administration argued that the Order was not binding, but it also took the position that, even if the order were binding, …

Night And Day: Coeur D’Alene, Breard, And The Unraveling Of The Prospective-Retrospective Distinction In Eleventh Amendment Doctrine, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Edelman v. Jordan has been read to establish a distinction between suits seeking prospective relief from a state official's violation of federal law (which are not barred by the Eleventh Amendment under Ex parte Young) and suits seeking retrospective relief from the state (which are barred by the Eleventh Amendment, even if the officer is the defendant). Commentators and the lower courts have long had difficulty understanding and applying the distinction. Until recently, the principal effect of the Edelman line of cases has been to bar suits seeking damages and similar monetary relief from …

Judicial Exclusivity And Political Instability, Neal Devins, Louis Fisher

Faculty Publications

No abstract provided.

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

Articles

One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …

Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman

Articles

In this paper, I will look at the problem of hearsay and confrontation through the lens offered by this symposium's theme of "truth and its rivals." I will ask: To what extent does the law of hearsay and confrontation aspire to achieve the goal of truth in litigation? To what extent does it, or should it, seek to achieve other goals, or to satisfy other constraints on the litigation system? And, given the ends that it seeks to achieve, what should the shape of the law in this area be? My principal conclusions are as follows: In most settings, the …

Confrontation: The Search For Basic Principles, Richard D. Friedman

Articles

The Sixth Amendment to the Constitution guarantees the accused in a criminal prosecution the right "to be confronted with the Witnesses against him."' The Confrontation Clause clearly applies to those witnesses who testify against the accused at trial. Moreover, it is clear enough that confrontation ordinarily includes the accused's right to have those witnesses brought "face-toface," in the time-honored phrase, when they testify.2 But confrontation is much more than this "face-to-face" right. It also comprehends the right to have witnesses give their testimony under oath and to subject them to crossexamination. 3 Indeed, the Supreme Court has treated the accused's …

Naked Politics, Federal Courts Law, And The Canon Of Acceptable Arguments, Michael Wells

Scholarly Works

In this Article, I argue that there is a wide gap between the aspirations and the actual operation of Federal Courts law. I maintain that, despite the conversational rule forbidding it, raw substance in fact wields significant influence in the resolution of Federal Courts issues. For example, the familiar argument that federal courts should be favored because they are more "sympathetic" to federal claims is really an appeal to naked politics. The empirical premise of this and other arguments of naked politics is that there are structural differences between federal and state courts which affect the outcomes of close cases, …

The Courts And The Congress: Should Judges Disdain Political History?, Peter L. Strauss

Faculty Scholarship

In an earlier article in these pages, Professor John Manning argued that the use of legislative materials by courts in effect permits Congress to engage in delegation of its authority to subunits of the legislature, in violation of the separation of powers. Professor Strauss, acknowledging that the previous generation of courts may have excessively credited the minutiae of legislative history, responds that judicial attention to the political history of legislation is required, not forbidden, by considerations of constitutional structure. Only awareness of that history will promote interpretation reflective of the context and political moment of Congress's action. Our history of …

Sovereign Indignity? Values, Borders And The Internet: A Case Study, Eric Easton

All Faculty Scholarship

This article focuses on the publication ban issued by a Canadian court in a notorious murder trial, and the popular reaction to the publication ban, as a case study of the new global communications environment. Part I reconstructs the factual circumstances that provoked the ban, as well as the responses of the media, the legal establishment, and the public. Part II examines the ban itself, the constitutional challenge mounted by the media, and the landmark Dagenais decision. Part III reflects on the meaning of the entire episode for law, journalism, and national sovereignty.

The Dagenais decision demonstrates the continued independence …

Catch Me If You Can! Resolving The Ethical Tragedies In The Brave New World Of Jury Selection, José F. Anderson

All Faculty Scholarship

Since the Supreme Court's opinion in Batson v. Kentucky, the rules and tools available to lawyers for selecting juries have changed dramatically from what they had been for decades in American courtrooms. The Court's well intentioned effort in Batson to attempt to eliminate racial discrimination from the process of jury selection set in motion a series of modifications in lawyer decision making which have changed how lawyers fill the jury box. Prior to Batson, the sacrosanct tool known as the peremptory challenge had been virtually unassailable as a jury selection weapon. Abuses by prosecutors, particularly in the southern United States, …

Dear Justice White, Carl W. Tobias

Law Faculty Publications

Addressing Supreme Court of the United States Justice Justice Byron T. White, Chair of the Commission on Structural Alternatives for the Federal Courts of Appeals, Prof. Tobias offers advice on examining the problems confronting the courts and devising recommendations that address these problems within the Commission's statutory mandate.

Fostering Balance On The Federal Courts, Carl W. Tobias

Law Faculty Publications

During the 1992 presidential election campaign, Governor William Jefferson Clinton pledged to increase the numbers and percentages of women and minorities on the federal bench while appointing judges who are highly intelligent, demonstrate balanced judicial temperament, and exhibit a commitment to enforcing constitutional rights. The record of judicial selection that President Clinton compiled in his first term as Chief Executive shows that he honored these campaign commitments. President Clinton chose federal judges who make the judiciary's composition more closely resemble the American populace and who possess excellent qualifications.

The Clinton Administration named unprecedented numbers and percentages of very capable female …

The Judicial Conference Report And The Conclusion Of Federal Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

The Civil Justice Reform Act (CJRA) of 1990 instituted a nationwide experiment with procedures for decreasing expense and delay in federal civil litigation. Congress required all ninety-four federal district courts to adopt civil justice expense and delay reduction plans and to apply cost and delay reduction measures for at least four years.Congress correspondingly prescribed considerable evaluation of the experimentation which the federal districts undertook. The 1990 legislation mandated that each court annually assess the efficacy of the procedures which the district employed. Moreover, Congress required that an “independent organization with expertise in the area of Federal court management” conduct a …

How Judges View Civil Juries, Paula Hannaford-Agor, B. Michael Dann, G. Thomas Munsterman

Faculty Publications

In any given case, the judge's view of the jury may mani­fest itself as a complex and subtle mixture of respect, gratitude, con­cern, pride, impatience, and even frustration. But more revealing than what judges say about juries is what judges do to prepare jurors for their roles in civil cases. This paper explores the various indicators of judges' views of the civil jury, including the social and institutional factors and contemporary jury reform efforts that affect judges' views about the civil jury.

This abstract has been taken from the authors' introduction.

The Independence Of The Judicial Branch In The New Republic, Charles G. Geyh, Emily Field Van Tassel

Articles by Maurer Faculty

No abstract provided.

The Phoenix And The Perils Of The Second Best: Why Heightened Appellate Deference To Tax Court Decisions Is Undesirable, Steve R. Johnson

Articles by Maurer Faculty

In our judicial structure, both courts of general jurisdiction and specialized courts are empowered to adjudicate federal income tax controversies. A proper relationship among those courts has proved difficult to forge and maintain. Absent an enduring intellectual and political consensus, institutional arrangements have been subject to recurring question and challenge.

Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan

Faculty Scholarship

Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design, …

Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler

Faculty Scholarship

Constitutional rights are conventionally thought to be "personal" rights. The successful constitutional litigant is thought to have a valid claim that some constitutional wrong has or would be been done "to her"; the case of "overbreadth," where a litigant prevails even though her own conduct is permissibly regulated, is thought to be unique to the First Amendment. This "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars.

In this Article, I argue that the conventional view is incorrect. Constitutional rights, I claim, are rights against …

Section 1500 And The Jurisdictional Pitfalls Of Federal Government Litigation , Paul Frederic Kirgis

American University Law Review

No abstract provided.

Unjust Laws, Robert F. Utter

Cardozo Law Review

No abstract provided.

Relation Back Of "John Doe" Complaints In Federal Court: What You Don't Know Can Hurt You, Steven S. Sparling

Cardozo Law Review

No abstract provided.

Risk-Utility Balancing In Design Defect Cases, David G. Owen

University of Michigan Journal of Law Reform

Design defectiveness is generally defined in terms of a risk-utility balance, the form of liability test adopted by the Restatement (Third) of Torts: Products Liability. However, confusion abounds in how courts formulate such balancing tests. A national survey of recent appellate court decisions reveals that courts generally define the balance in terms of the product's risks and utility, a formulation which appears to call for weighing the product's global costs against the product's global benefits. So defined, the design defect test is incorrect. What appellate courts mean for juries to decide, and what juries ordinarily do in fact decide, …

A Question Of Intent: Aiding And Abetting Law And The Rule Of Accomplice Liability Under § 924©, Tyler B. Robinson

Michigan Law Review

Firearms are common tools of the violent-crime and drugtrafficking trades. Their prevalence is reflected in the frequency with which federal prosecutors charge, juries apply, and courts review 18 U.S.C. §924(c). That provision imposes heavy penalties for either the use or carrying of a firearm "during and in relation to any crime of violence or drug trafficking crime," in addition to the punishment provided for the underlying violent or drug-related offense. A conviction under section 924(c) carries at the very least a mandatory, consecutive five-year sentence, even when the underlying crime already provides enhanced punishment for use of a dangerous weapon …

Moral Dilemmas For The Judiciary At The Millennium: Partial-Birth Abortion And Physician-Assisted Suicide, Laura L. Hirschfeld

Cardozo Law Review

No abstract provided.

Inequities Of The Drug War: Legislative Discrimination On The Cocaine Battlefield, Andrew N. Sacher

Cardozo Law Review

No abstract provided.

On The Admissibility Of Expert Testimony In Kansas, Mark D. Hinderks, Steve Leben

Faculty Works

No abstract provided.

The Supreme Court, 1996 Term: Leading Cases, Dana Brakman Reiser

Faculty Scholarship

No abstract provided.

Congress Authorizes Appellate Study Panel, Carl W. Tobias

Law Faculty Publications

In mid-November, the first session of the 105th Congress passed a measure authorizing a national commission to study the federal appeals courts. On November 26, President Clinton signed the legislation. The Commission on Structural Alternatives for the Federal Courts of Appeals has a historic opportunity to analyze carefully the federal appellate system and make valuable suggestions for improvement, thereby charting the destiny of the intermediate appeals courts for the 21st century.

Rescuing Multidistrict Litigation From The Altar Of Expediency, Carter G. Phillips, Gene C. Schaerr, Anil K. Abraham

BYU Law Review

No abstract provided.