Courts Commons^™

Fictions Of Omniscience, Karen Petroski

Kentucky Law Journal

Recent studies of the legislative process have questioned the rationales for many principles of statutory interpretation. One of those traditional rationales is the so-called fiction of legislative omniscience, thought to underlie many judicial approaches to statutory decisions. This Article presents the first comprehensive analysis of judicial assertions about legislative awareness and proposes a different way of understanding them. The proposed perspective compares fictions of legislative omniscience with similar but more widely accepted imputations of knowledge in other areas of law; it also draws on recent findings from other disciplines on the use and comprehension of statements about fictional situations. The …

The Many Lanes Out Of Court: Against Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Maryland Law Review

No abstract provided.

Problem-Solving Courts And Pragmatism, Richard C. Boldt

Maryland Law Review

No abstract provided.

Citizen Participation In Criminal Trials In Japan: The Saiban-In System And Victim Participation In Japan In International Perspectives, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.

Ice Cube Bonds: Allocating The Price Of Process In Chapter 11 Bankruptcy, Edward J. Janger, M. B. Jacoby

Faculty Scholarship

No abstract provided.

The Critical Nature Of Verbal Leaks And Nonverbal Signals During Bargaining Interactions, Charles B. Craver

Cardozo Journal of Conflict Resolution

When individuals negotiate, they communicate with each other in person, over the telephone, or through e-mail and text exchanges. Proficient negotiators carefully prepare for such interactions, and they endeavor to choose their words carefully to convey the precise messages they intend to communicate. Despite these efforts, however, they frequently include inadvertent modifiers that undermine what they appear to be saying. Persons who listen carefully for such "verbal leaks" can gain a significant bargaining advantage.

Moral Touchstone, Not General Deterrence: The Role Of International Criminal Justice In Fostering Compliance With International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This article contends that international criminal justice provides minimal general deterrence of future violations of international humanitarian law (IHL). Arguments that international courts and tribunals deter future violations – and that such deterrence is a primary objective – assume an internally inconsistent burden that the processes cannot bear, in essence setting international criminal justice up for failure. Moreover, the inherently limited number of proceedings, the length of time required, the dense opinions generated, the relatively light sentences and the robust confinement conditions all erode whatever limited general deterrence international criminal justice might otherwise provide. Bluntly stated, thousands of pages of …

Around The Nation, Calen Weiss

Criminal Law Practitioner

No abstract provided.

From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender

SJD Dissertations

In response to what he perceived as the challenges associated with republican governance in the later portions of the nineteenth century, Michigan’s Thomas McIntyre Cooley penned his treatise concerning constitutional limitations on legislative power. In it, Cooley offered a vision of government where courts would check government power and would raise constitutional barriers against the impact of improper influences on legislators. As a student of history, Cooley grounded his beliefs and doctrines in experience, not philosophical reflections. Believing that “the fruits of speculative genius in government are of little value,” Cooley submitted that governing structures and law “must be the …

Give Ghosts A Chance: Why Federal Courts Should Cease Sanctioning Every Legal Ghostwriter, Blake G. Tanase

Georgia Law Review

For decades, federal judges have punished attorneys who draft documents for pro se litigants. Meanwhile, many states and the American Bar Association have come to accept this practice as beneficial for low-income litigants and the legal system at large. The Second Circuit recently broke from the federal tradition and found that an attorney's so-called "ghostwriting"of litigation documents for pro se litigants was not sanctionable conduct. That court noted the changes taking place at the state level and rejected other federal courts' justifications for sanctioning legal ghostwriting, but did not elaborate as to why legal ghostwriting should be considered acceptable attorney …

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Georgia Law Review

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …

The Danger Of Nonrandom Case Assignment: How The Southern District Of New York's "Related Cases" Rule Shaped Stop-And-Frisk Rulings, Katherine A. Macfarlane

Michigan Journal of Race and Law

The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen …

Recognition And Enforcement Of Foreign Judgments In U.S. Courts: Problems And Possibilities, S. I. Strong

Faculty Publications

The United States is currently facing a period of intense interest in transnational litigation. Not only has the U.S. Supreme Court become increasingly active in this field, but the American Law Institute (ALI) is also in the process of revising and drafting a number of Restatements concerning international law. The United States also recently signed The Hague Convention on Choice of Court Agreements (COCA), although the instrument has not yet been ratified.

The United States can and should reconsider U.S. law concerning the recognition and enforcement of foreign judgments immediately and unilaterally. Although this may appear to be a daunting …

The U.S. Supreme Court Fellows Program; The Opportunity Of A Lifetime, S. I. Strong

Faculty Publications

One reason why the Supreme Court Fellowship is one of the best-kept secrets in Washington, D.C., is its size. Unlike the White House Fellows program, which invites 12 people to join its ranks each year, and the Congressional Fellows program, which has over 30 participants annually, the Supreme Court accepts only four extremely talented individuals into its Fellows program each year. Every fall, these fortunate few begin a 12-month journey that offers them an unparalleled opportunity to observe and participate in the work of the federal judiciary at the highest levels.

Technology, Ethics, And Access To Justice: Should An Alogrithm Be Deciding Your Case?, Anjanette H. Raymond, Scott J. Shackelford

Michigan Journal of International Law

At a time of U.S. budget cuts, popularly known as the “sequester,” court systems across the nation are facing financial shortfalls. Small claims courts are no exception. Among the worst hit states is California, which is suffering staffing cutbacks that result in long delays prompting consideration of the old maxim, “justice delayed is justice denied.” Similar problems, albeit on a larger scale, are evident in other nations including India where the Law Commission has argued that the millions of pending cases combined with the lagging uptake of technological best practices has impeded judicial productivity, leading to “disappointment and dissatisfaction among …

Functional Elements In Patent Claims, As Construed By The Patent Trial And Appeal Board (Ptab), 13 J. Marshall Rev. Intell. Prop. L. 251 (2014), Tom Brody

UIC Review of Intellectual Property Law

Claims in patents include both structural elements and functional elements. Functional elements occur in various categories: (1) Functional elements that mandate a particular range of structures that are able to perform the required function; (2) Functional elements that mandate a particular cooperation between structures; (3) Compound noun/function functional elements, (4) Active-type functional elements; (5) “Capable of”-type functional elements, (6) Single-word structural elements that are typical nouns, but that are also functional elements, e.g., “plasticizer,” and (7) Quasi-functional elements that lack any patentable weight. This article discloses which of these types of functional elements confers the broadest claim scope, and which …

What Reversals And Close Cases Reveal About Claim Construction: The Sequel, 13 J. Marshall Rev. Intell. Prop. L. 525 (2014), Thomas Krause, Heather Auyang

UIC Review of Intellectual Property Law

This article updates and elaborates on last year’s What Close Cases and Reversals Reveal About Claim Construction at the Federal Circuit. Like the previous article, this article provides empirical insight into claim construction at the Federal Circuit, by approaching the question with two unique and distinct subsets of data: (1) “reversals” of all district court claim construction decisions since Phillips v. AWH, and (2) “close cases,” or post-Markman claim construction cases that had dissents in which a currently-active judge participated. The past year’s reversals data once again confirms that district courts persistently favor narrow claim interpretations in cases in which …

The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment's "rule requiring notice."

Congress authorized these "sneak and peek" warrants in the USA Patriot Act of 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5601 in 2012, suggesting that "sneak and peek" searches are becoming alarmingly common. In fact, it is not at all clear whether true "sneak …

Religious Law (Especially Islamic Law) In American Courts, Eugene Volokh

Oklahoma Law Review

No abstract provided.

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Faculty Publications By Year

No abstract provided.

The Punishment Agenda In The Courts, Debra Parkes

All Faculty Publications

This paper critically examines the potential of prisoner litigation in Canada to shed light on what U.S. Supreme Court Justice Anthony Kennedy has called “the hidden world of punishment.” It considers whether prisoner’s rights litigation can act as a meaningful legal check on the growing punishment agenda in Canada. The paper begins with a brief description of some aspects of the punishment agenda before moving on to consider case law under the section of the Canadian Charter of Rights and Freedoms which speaks directly to punishment and its limits, the section 12 right to be free from “cruel and unusual …

Taking Section 10(B) Seriously: Criminal Enforcement Of Sec Rules, Steve Thel

Faculty Scholarship

The Supreme Court has determined the scope of federal securities laws in a series of cases in which it has read section 10(b) of the Securities Exchange Act as either prohibiting certain misconduct or authorizing the SEC to regulate that conduct and only that conduct. Judging by the language, structure and history of the Exchange Act, the Court’s reading is wrong. Section 10(b) does not prohibit anything, and it neither grants the SEC rulemaking power nor limits the rulemaking power granted to the SEC elsewhere in the Exchange Act. Instead, section 10(b) simply triggers criminal sanctions for certain rule violations. …

Doctrinal Conversation: Justice Kagan's Supreme Court Opinions, Laura K. Ray

Indiana Law Journal

In her first two terms on the Supreme Court, Justice Elena Kagan has crafted a distinctive judicial voice that speaks to her readers in a remarkably conversational tone. She employs a variety of rhetorical devices: invocations to “remember” or “pretend”; informal and even colloquial diction; a diverse assortment of similes and metaphors; and parenthetical interjections that guide the reader’s response. These strategies engage the reader in much the same way that Kagan as law professor may well have worked to engage her students, and in the context of judicial opinions they serve several purposes. They make Kagan’s opinions accessible to …

Justice Scalia's Truthiness And The Virtues Of Judicial Center, Allen K. Rostron

Indiana Law Journal

Antonin Scalia is by far the Supreme Court’s greatest wit and most colorful personality. When I choose audio clips from the Court’s oral arguments to play in my constitutional law classes, I would like to offer a balanced sample of views from the left and right sides of the Court. But I cannot resist loading up on Scalia sound bites, because in almost every major case he serves up the sharpest questioning and most imaginative hypotheticals. His judicial opinions are also remarkably passionate and frank. If he thinks a lawyer’s or even a fellow Justice’s argument is nonsense, he will …

Introduction: Invited Essays On The Implications Of Windsor And Perry

Indiana Law Journal

No abstract provided.

Lost In Translation: Statistical Inference In Court, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

A Failure To Supervise: How The Bureaucracy And The Courts Abandoned Their Intended Roles Under Erisa, Lauren R. Roth

Scholarly Works

This Article addresses how courts failed to adequately supervise employers administering pension plans before ERISA. Relying on a number of different legal theories — from an initial theory that pensions were gratuities offered by employers to the recognition that pension promises could create contractual rights — the courts repeatedly found ways to allow employers to promise much and provide little to workers expecting retirement security. In Section III, this Article addresses how Congress failed to create an effective structure for strong bureaucratic enforcement and the bureaucratic agencies with enforcement responsibilities failed to fulfill those functions. Finally, in Section IV, this …

Reflections On The Indictment Of Sitting Heads Of State And Government And Its Consequences For Peace And Stability And Reconciliation In Africa, Charles Chernor Jalloh

Articles

In these remarks, the author considers the most recent challenge to the application of international criminal justice in Africa: Kenya's controversial November 2013 proposal to amend the Rome Statute of the International Criminal Court to temporarily exempt from prosecution sitting presidents accused of involvement with international crimes. He examines several legal and practical reasons why such a proposal is untenable. Instead, citing the principle of complementarity and urging the principled use of judicial and prosecutorial discretion, he contends that much of the African Union's current concerns about the Kenya Situation can be addressed within the confines of existing Rome Law. …

The Erie-Ness Of The Rules, Sergio J. Campos

Articles

No abstract provided.

Civil Procedure—Reassessing Personal Jurisdiction In Arkansas And The Eighth Circuit After Goodyear Dunlop Tires Operations V. Brown, 131 S. Ct. 2846 (2011) And J. Mcintyre Machinery, Ltd. V. Nicastro, 131 S. Ct. 2780 (2011)., Kathy Mccarroll

University of Arkansas at Little Rock Law Review

No abstract provided.