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Rule 23: Challenges To The Rulemaking Process (Symposium: The Institute Of Judicial Administration Research Conference On Class Actions), Edward H. Cooper

Articles

Three decades have elapsed since Rule 23 of the Federal Rules of Civil Procedure last underwent revision. Taking a cue from proposed amendments prepared by the Civil Rules Advisory Committee, Professor Cooper asks whether now is the appropriate time to revise Rule 23. In this Articl e he identifis three potential "big changes" to the Rule. subsantially curtailing class actions; accommodating the needs of mass-tort actions; and recognizing the class as an entity, distinct from Its representatives. After outlining and critiquing the Advisory Committee's draf4 Professor Cooper raises a host of questions about many aspects of Rule 23 and suggests …

Rights Of Subrogation In Letters Of Credit Transactions, James J. White

Articles

The past twenty years have seen more than a dozen cases, in which parties to letter of credit transactions have sought subrogation to the rights of the person they have paid or to the rights of the persons on behalf of whom, they have acted.' The most obvious case arises when the issuer of a standby letter of credit pays a beneficiary on a debt that is owed to the beneficiary by a bankrupt applicant. Having failed to take 'collateral from the applicant, the issuer seeks to be subrogated to the security interest of the beneficiary. Failing subrogation, the issuer …

New Certiorari And A National Study Of The Appeals Courts, Carl W. Tobias

Law Faculty Publications

Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition is a thought-provoking critique of the United States Courts of Appeals. Professors William Richman and William Reynolds maintain that dramatic increases in appellate filings have transformed the appeals courts during the last quarter-century, prompting systemic constriction of procedural opportunities, particularly for parties with few resources or little power. The authors find these changes profoundly troubling and propose that Congress radically expand the number of appellate judges.

Individuals and institutions, such as expert study committees, which have analyzed the federal courts, agree with much of the authors' descriptive assessment. …

A Sixth Circuit Story, Carl W. Tobias

Law Faculty Publications

At the May 4, 1994 regular meeting of the Judicial Council of the United States Courts for the Sixth Circuit, the Council voted to "suspend further review of local rules until it receives further guidance from Congress, the Judicial Conference of the United States or by case law on the question of whether provisions of the Civil Justice Reform Act take precedence over the Federal Rules of Civil Procedure. " By so doing, the Council was ostensibly discharging responsibilities assigned to it by the Judicial Improvements and Access to Justice Act (JIA) of 1988. The JIA requires that every circuit …

The Civil Justice Reform Act Amendment Act Of 1995, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

Four members of the Senate Judiciary Committee introduced the Civil Justice Reform Act Amendment Act of 1995 on February 23, 1995 as Congress was considering numerous aspects of the Contract With America, most relevantly the legal reforms in its ninth tenet. Senator Orrin Hatch (R-Utah), Chair of the Senate Judiciary Committee, Senator Charles Grassley (RIowa), Chair of the Subcommittee on Courts and Administrative Practice, Senator Joseph Biden (D-Del.), the ranking minority member of the Senate Judiciary Committee, and Senator Howell Heflin (D-Ala.), former Chair of the Courts and Administrative Practice Subcommittee, sponsored the legislation. Passage of the proposal by the …

The Supreme Court And Our Culture Of Irresponsibility, Mary J. Davis

Law Faculty Scholarly Articles

This article chronicles the Supreme Court's expansion of the “culture of irresponsibility,” where institutional defendants are freed from tort liability with no check on the abuse of such immunity. Professor Davis describes the Court's progression toward immunity in products liability decisions of the past decade including East River Steamship, Boyle, Cipollone, and Lohr. Noting the effect of the Court's decisions in promoting institutional irresponsibility, Professor Davis encourages the Court to use its “cultural influence” and reconsider its broad extension of immunity which has spread to situations and institutional defendants the Court never imagined.

Reflections Of Judicial Adr And The Multi-Door Courthouse At Twenty: Fait Accompli, Failed Overture, Or Fledgling Adulthood, Jeffrey W. Stempel

Scholarly Works

Like any trend, ADR has its skeptics and even some opponents. Considerable debate exists regarding the degree to which the increasing ADRization of traditionally judicial activity amounts to triumph or tragedy, a point well-illustrated by the past Schwartz Lectures. In the 1993 Schwartz Lecture, Professor Laura Nader described the ADR movement as a byproduct of society's attempt to suppress or conceal uncomfortable conflicts. In the 1994 Lecture, Professor Judith Resnik essentially concluded that the modern ADR movement has brought a regrettable de facto closing of the court house (or at least raised barriers to entry) and replaced reflective decision-making about …

Autonomy And Death, Annette E. Clark

Faculty Articles

In this article, Professor Clark explores the contours of the current debate over physician-assisted death. She begins by focusing on the legal issues raised by statutory attempts to either legalize or criminalize physician-assisted death, with particular emphasis on the constitutional questions that are currently before the United States Supreme Court. She then examines physician-assisted death from both medical and societal perspectives. Professor Clark uses a thought experiment in which assisted death is facilitated by persons other than physicians, and in doing so, questions whether physicians are the proper persons in whom to wrest power over assisted death. She points out …

Cooperating With The Prosecutor: How Many Motions Does It Take To Secure A Sentence That Is Less Than The Mandatory Minimum Provided By Statute?, Jimmy Gurulé

Journal Articles

A preview of Melendez v. United States, a 1996 Supreme Court case in which a convicted cocaine dealer appealed his mandatory 10 year sentence under the federal statutes on the grounds that he had cooperated with the prosecutor. While the United States Congress has authorized courts to impose sentences below the mandatory minimum set by the statutes and the Federal Sentencing Guidelines for defendants who provide substantial cooperation with the prosecution, courts can only do so at the request of the prosecutor. At issue in this case, where the prosecutor requested a sentence lower than the Guidelines minimum but not …

Dissent At The Federal Circuit And Supreme Court Review, Helen Wilson Nies

American University Law Review

No abstract provided.

Christianson V. Colt Industries Operating Corp: The Application Of Federal Question Precedent To Federal Circuit Jurisdiction Decisions, John Donofrio, Edward C. Donovan

American University Law Review

No abstract provided.

Government Contract Cases In The United States Court Of Appeals For The Federal Circuit: 1995 In Review, Thomas F. Williamson, Stacey L. Valerio, Stephanie P. Gilson

American University Law Review

No abstract provided.

The Standard Of Review Of Applied By The United States Court Of Appeals For The Federal Circuit In International Trade And Customs Cases, Herbert C. Shelley, Alicia A. Kipel, Anne Talbot, Keith R. Marino

American University Law Review

No abstract provided.

Congress Considers Bill To Split Ninth Circuit, Carl W. Tobias

Law Faculty Publications

Late last year, the Senate Judiciary Committee approved a measure that would divide the U.S. Court of Appeals for the Ninth Circuit. The proposal, Senate Bill 956, would create a new Twelfth Circuit comprised of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington, leaving California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit. The Judiciary Committee vote is significant because no bill to split the Ninth Circuit has ever received floor debate. The second session of the 104th Congress could well divide the court.

The Proposal To Split The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

Individuals and organizations concerned about natural resources should be aware of the recent controversial proposal to divide the United States Court of Appeals for the Ninth Circuit. During the first session of the 104th Congress in the fall of 1995, the United States Senate Judiciary Committee approved Senate Bill 956, a measure that would establish a new Twelfth Circuit consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington, and that would leave California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit. The Judiciary Committee vote was important for two reasons: the circuit's division could substantially affect …

The Sounds Of Silence: Charter Application When The Legislature Declines To Speak, Dianne Pothier

Dianne Pothier Collection

On first impression, the title of the Simon and Garfunkle hit classic hit "The Sounds of Silence" may seem like an oxymoron. But it does not take too much reflection to realize that silence can indeed be very expressive and therefore quite telling. While that can be true in any number of contexts, for the specific purpose of this article, I will examine only one: legislative silence. What is the legal significance of the legislature declining to speak on one particular aspect of a legal issue otherwise addressed in the legislation? More specifically, can the Charter be engaged to challenge …

The Victim-Plaintiff In Criminal Trials And Civil Law Responses To Sexual Violence, Alexandra Goy

Cardozo Journal of Equal Rights & Social Justice

The article examines the role of the victim-plaintiff in German criminal trials, particularly in cases involving sexual violence. It highlights the unique procedural rights granted to victim-plaintiffs, such as the ability to participate actively in trials and present evidence. However, the analysis reveals significant practical and systemic barriers that limit the effectiveness of this institution, including restrictive evidentiary rules, financial challenges, and gender biases within the judiciary. The article argues that while the victim-plaintiff institution offers opportunities for victims to seek justice, its impact is undermined by these obstacles, raising concerns about the protection of sexual autonomy and gender equality …

Using The American Courts To Prosecute International Crimes Against Women: Jane Doe V. Radovan Karadzic And S. Kadic V. Radovan Karadzic, Rachel Bart

Cardozo Journal of Equal Rights & Social Justice

The note examines the use of the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA) to prosecute international crimes against women, focusing on the *Karadzic* cases. It argues that these cases represent a significant expansion of U.S. federal jurisdiction over human rights abuses, particularly gender-based violence, committed abroad. The Second Circuit's decision to reverse the district court's dismissal and the Supreme Court's denial of certiorari affirmed the applicability of ATCA and TVPA to non-state actors and clarified their role in enforcing international human rights standards.

Victim Reparations In The Inter-American Human Rights System: A Critical Assessment Of Current Practice And Procedure, Jo M. Pasqualucci

Michigan Journal of International Law

Part II of this article analyzes the statutory authority for reparations in the Inter-American system in light of the legislative history of the American Convention's reparations provision and compares that authority with that provided for in the European human rights system. Part III sets forth the Inter-American Court's procedures for determining reparations once State responsibility has been established. Part IV evaluates the parties who may receive reparations. Part V analyzes the types of reparations provided generally under international law and specifically in the Inter-American system. Part VI criticizes the Court's determination to grant only a small share of the reparations …

Novak V. Commonwealth: Are Virginia Courts Providing Special Protection To Virginia's Juvenile Defendants?, Ellen R. Fulmer

University of Richmond Law Review

On March 9, 1991, Shawn Paul Novak was charged with the murder of two young boys, Daniel Grier, age nine, and Christopher Weaver, age seven. The boys had disappeared on March 4 and their bodies were found the next day after an extensive search. The police inquiry into the murders led to the questioning of a number of people, including Shawn, then age sixteen. Shawn was questioned on four separate occasions. At no time prior to, during, or after any of these questioning sessions was Shawn read his Mirandawarnings which specify the rights to which he was entitled under the …

West Valley City V. Lynn Poulsen : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (1996–2006)

No abstract provided.

Enterprise Zones In The Courts: Legal Challenges To State Economic Redevelopment Legislation, Patrick J. Skelley Ii

University of Richmond Law Review

The declining state of our nation's cities has been, and continues to be, a frequent source of news and fodder for political debate. Unemployment, urban blight, crime, and economic dislocation are just a few of the inner-city's afflictions which occupy the American mind. A multitude of theories have been advanced in order to explain the persistence of urban deterioration, accompanied by an array of governmental attempts to reverse, or at least stem, the trend of inner-city decay.

The International Trial Of The Century? A Cross-Fire" Exchange On The First Case Before The Yugoslavia War Crimes Tribunal, Michael P. Scharf, Valerie Epps

Faculty Publications

This Article is an expanded version of a presentation delivered at the Conference of International Law Journals on March 29, 1996, in Washington, D.C.

Constitutional Fictions And Meritocratic Success Stories, Robin West

Georgetown Law Faculty Publications and Other Works

L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells …

Rule 405: Methods Of Proving Character

Touro Law Review

No abstract provided.

Rule 407: Subsequent Remedial Measures

Touro Law Review

No abstract provided.

Rule 412: Sex Offense Cases; Relevance Of Alleged Victim's Past Sexual Behavior Or Alleged Sexual Disposition

Touro Law Review

No abstract provided.

Rule 608: Evidence Of Character And Conduct Of Witnesses

Touro Law Review

No abstract provided.

Rule 702: Testimony By Experts

Touro Law Review

No abstract provided.

Rule 704: Opinion On Ultimate Issue

Touro Law Review

No abstract provided.