Courts Commons^™

Extending The Civil Justice Reform Act Of 1990, Carl W. Tobias

Law Faculty Publications

The passage of the Judicial Amendments act of 1994 postponed several key implementation deadlines prescribed by the Civil Justice Reform Act (CJRA) of 1990. Perhaps most significantly, the new legislation extends for one year the mid-1995 date when the RAND Corporation, which is studying ten pilot districts' experimentation with cost and delay reduction procedures, must submit its conclusions to the Judicial Conference of the United States. Numerous compelling arguments supported congressional postponement of this deadline. Most importantly, the RAND Corporation can now capture much additional data, which are critical to assessing accurately the procedures' effectiveness in decreasing expense and delay, …

Incoming Drug Calls And Performative Words: They're Not Just Talking About It, Baron Parke!, Christopher B. Mueller

Publications

No abstract provided.

What's Quality Got To Do With It?: Constitutional Theory, Politics, And Education Reform, Phil Weiser

Publications

No abstract provided.

Youth Justice In A Unified Court: Response To Critics Of Juvenile Court Abolition, Janet Ainsworth

Faculty Articles

In this article, Professor Ainsworth argues that a unified criminal justice system is preferable to our present two-tiered adult-juvenile court system. In fact, she contends that the cultural and ideological assumptions that underpin the current two-tiered justice system not only engender many of the serious shortcomings of the juvenile justice system, but also serve to exacerbate the very policies and practices of the adult criminal justice system that make it so abhorrent to defenders of the juvenile court. Critics of juvenile court abolitionists thus miss the point when they argue that juveniles would be worse off than they are at …

On Comparing Apples And Oranges: The Judicial Clerkship Selection Process And The Medical Matching Model, Annette E. Clark

Faculty Articles

In this article, Professor Clark joins the debate over whether the federal judiciary should utilize the medical matching model to reform the judicial clerk selection process. She analyzes the medical experience with the residency match in order to detail the ways in which proponents of a judicial clerk match have overstated the benefits, underestimated the costs, and overlooked the differing and potentially conflicting interests of judges and clerkship applicants in the selection process. Professor Clark concludes that reform of the judicial clerk selection process should be guided by a realistic appraisal of the costs and benefits of a matching system.

Juvenile Detention Law In The District Of Columbia: A Practitioner’S Guide, Paul Holland, John Copacino, Milton Lee

Faculty Articles

On each and every day of the year (excluding Sundays), children are presented for an initial hearing in the Family Division, Juvenile Branch of the Superior Court of the District of Columbia. Because of unusually broad and often misapplied preventive detention laws, children charged with property offenses such as theft, or status offenses such as truancy and ungovernability, are subject to detention for an indefinite period of time through summary procedures which do not adequately ensure the reliability of the detention decision. Because the detention of juveniles has become routine in superior court, its potential harm to the child is …

Whatever Happened To The Right To Treatment: The Modern Quest For An Historical Promise, Paul Holland, Wallace Mlyniec

Faculty Articles

Since the creation of the first juvenile court in 1899, state training schools have been the primary place of confinement for children removed from their homes. In theory such places were supposed to be home-like and rehabilitative in their facilities and care. In reality they were usually impersonal, understaffed, unhealthy, and even dangerous institutions, devoid of rehabilitative programs. From the late 1960s to the early 1980s, advocates for children pursued legislative and other policy reforms. They argued that children in state institutions had both a statutory and constitutional €œright to treatment. In this context, the authors of this article reassess …

Common Sense And Other Legal Reforms, Carl W. Tobias

Law Faculty Publications

Enactment of Congress' proposed Common Sense Legal Reforms Act (CSLRA) would impose procedural and substantive reforms that could significantly affect much federal civil litigation and could have substantial systemic impacts on the civil justice process. For instance, the measure's advocates drafted and introduced the proposed legislation with little apparent appreciation for how it might conflict with a number of ongoing public and private reform initiatives, such as an earlier Congress's Civil Justice Reform Act of 1990 and the American Law Institute's efforts to adopt a Third Restatement of Torts governing products liability.

The bill's enactment, therefore, could additionally complicate the …

The Evolution Of American Probate Courts And Emerging Standards To Guide Their Progress, Thomas L. Hafemeister, Paula Hannaford-Agor

Faculty Publications

Courts with probate jurisdiction are an excellent example of the evolu­tion of American courts. Despite the fact that they are direct descendants of the English judicial system, the structure, jurisdiction, and procedures of the probate courts assumed a uniquely American flavor soon after their initial establishment in the colonies. From the beginning, American probate courts have shown considerable diversity from state to state. State courts exercising probate jurisdiction have continued to evolve over time in response to the various demands placed upon them. This article describes the historical evolution of American courts exer­cising jurisdiction over probate matters, with specific attention …

Intramural Reforms: How The U.S. Courts Of Appeals Have Helped Themselves, Thomas E. Baker

Faculty Publications

No abstract provided.

The Federal Judicial Center And The Administration Of Justice In The Federal Courts, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Court Reporters Board Of California, E. Finelli

California Regulatory Law Reporter

No abstract provided.

Criminal Fault As Per The Lamer Court And The Ghost Of William Mcintyre, Michael J. Bryant

Osgoode Hall Law Journal

Contrary to recent criticisms to the effect that the Supreme Court of Canada favours the rights of criminal defendants and shuns the interests of the community, the Lamer Court has in fact championed the moral requisites of the community in its constitutional jurisprudence on criminal fault. By viewing rights and responsibilities as inextricably linked, the Lamer Court implicitly borrows from natural law traditions espoused by the Dickson Court's most conspicuous dissenter on criminal fault issues-Mr. Justice William McIntyre. This article argues that the tradition or philosophy underlying criminal fault as per the Lamer Court contrasts with the individualist, rights-oriented tendency …

Letter To Rjm From John J.P. Howley, John P. Howley

Memos and Letters: Law Clerks

No abstract provided.

Disclosure Of Executive Illnesses Under Federal Securities Law And The Americans With Disabilities Act Of 1990: Hobson’S Choice Or Business Necessity?, Andrew K. Glenn

Cardozo Law Review

Since the enactment of the Securities Act of 1933 (the "Securities Act") and the Securities Exchange Act of 1934 (the "Exchange Act") (collectively, the "Securities and Exchange Acts"), the Securities and Exchange Commission ("SEC"), Congress, and federal courts have increased both the scope and quantity of information to be disclosed to the investing public. The duty of disclosure, however, is not without limitation or qualification. Substantively, an issuing corporation ("issuer") need only disclose information that is "material." Disclosures must be lucid, concise, and comprehensible to the average investor.

Revolution In Courtroom Technology Presents Opportunity And Risk, Fredric I. Lederer

Popular Media

No abstract provided.

Restrictions On Publication And Citation Of Judicial Opinions: A Reassessment, Robert J. Martineau

University of Michigan Journal of Law Reform

In response to the "crisis of volume," state and federal appellate courts have been restricting the opinions they write to those opinions which will: (1) establish a new. rule of law or expand, alter, or modify an existing rule; (2) involve a legal issue of continuing public interest; (3) criticize existing law; or (4) resolve a conflict of authority. All other opinions are limited to brief statements of the reasons for the decision, go unpublished, and generally carry a prohibition against their being cited as precedent. Recently, critics have alleged a number of faults with this practice, including the supposed …

Congressional Commentary On Judicial Interpretations Of Statutes: Idle Chatter Or Telling Response?, James J. Brudney

Michigan Law Review

There are two principal aspects of my thesis. First, it is desirable to consider seriously these legislative signals of approval and disapproval, because a blanket rejection, or even systematic hostility, imposes significant opportunity costs on Congress. If the judiciary refuses to consider these signals, Congress will have to expend extra resources to achieve the same ends. That expense will diminish the institution's ability to enact other laws and in some cases will alter the character of the other laws that it is able to enact. The consequent diminution or depletion of Congress's legislative authority is unhealthy from a democratic perspective …

Five Views Of Federalism: "Converse-1983" In Context, Akhil R. Amar

Vanderbilt Law Review

In 1987, I published an overly long article in the Yale Law Journal entitled Of Sovereignty and Federalism. In it, I advanced a "converse-1983" model of federalism-a model that highlighted the ways in which state laws can provide remedies when federal officials violate federal constitutional rights. For example, prior to the 1971 landmark of Bivens v. Six Unknown Federal Agents, citizens whose Fourth Amendment rights had been violated by federal officers had no clear federal cause of action; but state trespass law often provided a remedy, and enabled citizens to recover when their "persons, houses, papers, [or] effects" had been …

The Criminal Defense Lawyer's Reliance On Bias And Prejudice, Eva Nilsen

Faculty Scholarship

This Article is divided into three parts. Part I examines both the many contexts in which criminal defense lawyers and clinical students encounter bias and prejudice,¹² and the commonly-raised objections to its exploitation. Part II looks at the way the tactical use of bias relates to a lawyer's duty of zealous advocacy. Here, the Article focuses on whether existing ethics rules provide guidance for a lawyer's use of bias and whether proposed rules aimed at eliminating such advocacy would improve or diminish justice. This article argues against such efforts because they impinge on legitimate lawyering, and they may distract …

A Study Of The Rhode Island Court System

Library Archive

This report contains general observations and eighty-one specific recommendations for strengthening the administration of the judicial system. It covers issues of governance, budgeting, personnel, purchasing, financial practices and staff support. Also included is an analysis of the fiscal year 1994 budget, as enacted, for the judiciary.

The Straits Of Stare Decisis And The Utah Court Of Appeals: Navigating The Scylla Of Under-Application And The Charybdis Of Over-Application, Paul W. Werner

BYU Law Review

No abstract provided.

“Now The Machine Runs Itself”: Carl Schmitt On Hobbes And Kelsen, David Dyzenhaus

Cardozo Law Review

Carl Schmitt claimed that the fundamental distinction of politics is the distinction between friend and enemy. That distinction, he said, has to be put on a substantive basis, which, in the era of the nation state, he supposed must amount to an idea of the homogeneity of the people. Since liberal democracy is opposed to this kind of substance, Schmitt argued that liberalism cannot make the distinction between friend and enemy. It thus cannot defend itself against its enemies. It is no wonder that he remains the leading theorist of fascism.

Presidential Power: Should Bill Clinton Be Immune From Lawsuits On Allegations Of Past Acts?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

When former Arkansas state employee Paula Jones filed her complaint against Bill Clinton she joined a small group of women who have publicly accused men in high-profile positions of sexual harassment.

A classic "he said, she said" story? We may never know, if the president is able to argue successfully that his office shields him from liability for actions occurring prior to assuming it. On June 27, his lawyer, Robert Bennett, asked a federal court to delay action, and said he would be filing a separate motion in August on the issue.

The defense is based on the 1982 case …

Justice Defined - It Takes More Than A Single Opinion To Understand How Legal Reasoning And Personal Experience Shape A 24-Year Career, Richard C. Reuben

Faculty Publications

With his retirement in June after participating in more than 800 cases - including his career-identifying 7-2 opinion in Roe v. Wade legalizing abortion - the definition of Harry Blackmun's tenure lies in the seeming contradiction of commitment and flexibility. Along with a steadfast defense of the right to abortion in Roe, 410 U.S. 113 (1973), and successive cases, Blackmun's significance was in the power of his vote. Often overlooked in the public's emphasis on Roe is an appreciation of Blackmun's reflective, methodical, if not occasionally pointed, jurisprudence.

The Partial Republican, John O. Mcginnis

Articles

No abstract provided.

Pushing The Law To Encompass The Reality Of Our Families: Protecting Lesbian And Gay Families From Eviction From Their Homes - Braschi'S Functional Definition Of Family And Beyond, Paris R. Baldacci

Articles

No abstract provided.

Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel

Faculty Scholarship

Presumptions and burdens of proof are used, among other purposes, to maintain legal stability and at the same time effect change. By imposing the burden of proof on the party asserting a certain outcome, courts can calibrate burdens of proof and substantive rules until experience points to rule retention or amendment. As agents of change, presumptions and burdens of proof are far more flexible and less brittle than rules.¹

This Article tells the story of presumptions and burdens of proof in litigation between corporate shareholders and managements. This litigation is replete with volatile presumptions and innovative burdens of proof, …

Regulation Of Water Use And Takings: A Growing Battlefield, Barton H. Thompson, Jr.

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

43 pages.

Contains references.

Management Approaches To Addressing Takings Issues: Endangered Species Protection, I. Michael Heyman

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

15 pages.

Contains footnotes.