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Full-Text Articles in Courts

The Role Of Courts In "Making" Law In Japan: The Communitarian Conservatism Of Japanese Judges, John O. Haley Jan 2013

The Role Of Courts In "Making" Law In Japan: The Communitarian Conservatism Of Japanese Judges, John O. Haley

Vanderbilt Law School Faculty Publications

Professor Haley is an outstanding international and comparative law scholars, widely credited with having popularized Japanese legal studies in the United States. In 1969, Haley received a fellowship from the University of Washington and was in one of the first classes to graduate from the Asian Law Program, now, the Asian Law Center. After working for several years in law firms in Japan, he joined the law faculty at the University of Washington, where he remained for nearly twenty-six years during which time he directed the Asian and Comparative Law Program. In June 2012, Professor Haley was awarded The Order …

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The Judge, He Cast His Robe Aside: Mental Health Courts, Dignity And Due Process, Michael L. Perlin Jan 2013

The Judge, He Cast His Robe Aside: Mental Health Courts, Dignity And Due Process, Michael L. Perlin

Articles & Chapters

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is …

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Sanctions: Where Law And Justice Collide: Kraze Entertainment (S) Pte Ltd V Marina Bay Sands Pte Ltd [2013] Sghc 39, Denise Huiwen Wong Jan 2013

Sanctions: Where Law And Justice Collide: Kraze Entertainment (S) Pte Ltd V Marina Bay Sands Pte Ltd [2013] Sghc 39, Denise Huiwen Wong

Research Collection Yong Pung How School Of Law

This is a cautionary tale for litigation practitioners and their claimant clients. The decision emanates from the High Court of Singapore, but is equally applicable to any jurisdiction in which security for costs can be sought against the claimant in an action. In Singapore, the Rules of Court set out the procedural rules governing all civil proceedings in the High Court and Subordinate Courts. Unlike the Civil Procedure Rules (CPR), the Singapore Rules of Court do not expressly articulate an overriding objective of timely and proportionate justice. However, the courts have consistently prioritised robust case management and “an uncompromising but …

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First, Do No Harm: On Addressing The Problem Of Implicit Bias In Juror Decision Making, Jennifer K. Elek, Paula Hannaford-Agor Jan 2013

First, Do No Harm: On Addressing The Problem Of Implicit Bias In Juror Decision Making, Jennifer K. Elek, Paula Hannaford-Agor

Faculty Publications

Courts have extremely limited opportunities to educate jurors about the pernicious effects of complex psychological phenom­ena like implicit bias and how these implicit forms of bias may distort jurors' interpretation of trial evidence. This article focuses on several of these interventions and the factors that may increase or undermine their effectiveness. Most Americans are aware of the existence of explicit bias and its effects on decision making generally, but implicit bias is still a relatively new concept about which many people in the justice system are unaware. The first section of this article discusses the difference between explicit bias and …

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The Gravitational Force Of Originalism, Randy E. Barnett Jan 2013

The Gravitational Force Of Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies …

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Undue Burdens In Texas, Jennifer S. Hendricks Jan 2013

Undue Burdens In Texas, Jennifer S. Hendricks

Publications

No abstract provided.

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When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl Jan 2013

When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

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Prison Is Prison, Brooke Coleman Jan 2013

Prison Is Prison, Brooke Coleman

Faculty Articles

Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and …

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A Twice-Told Tale: Plausibility And Narrative Coherence In Judicial Storytelling, Chris Rideout Jan 2013

A Twice-Told Tale: Plausibility And Narrative Coherence In Judicial Storytelling, Chris Rideout

Faculty Articles

What makes the stories told in court believable, and thus convincing? Part of the answer, this article suggests, lies in narrative coherence. Stories “make sense” and are plausible, not because they necessarily correspond in a direct way to “what really happened,” but rather because they seem structurally whole, consistent, and complete. They have achieved narrative coherence. After considering the role of narrative coherence in the plausibility of narratives, the article presents a typology for narrative coherence, breaking it down into external and internal coherence, with further component parts to each one. The article then turns to the Supreme Court case …

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Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts Jan 2013

Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts

Faculty Articles

Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not – and should not – be assumed. Rather, policymakers should do what they can to avoid such embitterment. This article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror …

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Full Disclosure: Cognitive Bias, Informants, And Search Warrant Scrutiny, Mary Bowman Jan 2013

Full Disclosure: Cognitive Bias, Informants, And Search Warrant Scrutiny, Mary Bowman

Faculty Articles

This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a …

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Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel Jan 2013

Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel

All Faculty Publications

This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional …

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Untold Stories Or Miraculous Mirrors? The Possibilities Of A Text-Based Understanding Of Socio-Legal Transcript Research, Emma Cunliffe Jan 2013

Untold Stories Or Miraculous Mirrors? The Possibilities Of A Text-Based Understanding Of Socio-Legal Transcript Research, Emma Cunliffe

All Faculty Publications

Austin Sarat has described legal understandings of the transcript as “the verbatim record of a present soon to become past, a mirror/a record/a voice machine in which the “author” exercises no authorial presence.” In this paper I argue that when seeing a transcript as an authorless mirror of court proceedings, lawyers and socio-legal scholars risk overlooking the ways in which the technology of transcripts influences the record that is produced. Paying attention to the laws and practices governing transcript production allows those who engage in transcript research to appreciate how the transcript is defined in relation to the spoken proceedings …

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Dogs And Tails: Remedies In Administrative Law, Cristie Ford Jan 2013

Dogs And Tails: Remedies In Administrative Law, Cristie Ford

All Faculty Publications

Administrative law in Canada, as in many other Commonwealth countries, centers around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose. This chapter seeks to provide a broader overview of administrative law remedies as a whole, including not only judicial …

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Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui Jan 2013

Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui

All Faculty Publications

The Supreme Court of Japan, despite its well-known passive and conservative stance towards constitutional adjudication, occasionally shows quite a creative and liberal attitude. Recently, the Supreme Court of Japan has shown this attitude in its development of pro-consumer jurisprudence involving consumer loan cases. This development is still more noteworthy because the Supreme Court of Japan ignored the legislature's intent to overturn its previous judgments and practically wiped out a statutory provision enacted by the legislature. As a result of this development, millions of consumers could demand refunds from consumer loan companies, and consumer loan companies went into serious financial troubles, …

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Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger Jan 2013

Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger

Articles

The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …

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The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer Jan 2013

The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer

Articles

First, I will briefly summarize the state of the art of equality law in Germany today. A distinct dimension of this story from a European Union member state is that we are not just theorizing postnational constitutionalism these days, but that we live it already, since law is not anymore isolated as national but needs to be seen in the context of transnational migration and multinational regimes. Second, I turn to a key feature and key challenge in and to equality law today. It is what I have called the triangle of fundamental rights, referring to the three most prominent …

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Rethinking Critical Mass In The Federal Appellate Courts., Laura Moyer Jan 2013

Rethinking Critical Mass In The Federal Appellate Courts., Laura Moyer

Faculty and Staff Scholarship

This article draws from critical mass studies of gender in other political institutions to inform an application to the US Courts of Appeals. The results demonstrate the utility of considering court-level aspects of diversity. As mixed-sex panels become more common within a circuit, both male and female judges increasingly support plaintiffs in civil rights claims, though the magnitude of the effect is larger for women. The presence of a female chief judge is also positively associated with pro-plaintiff decisions by men and women in sex discrimination cases.

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Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz Jan 2013

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

Articles

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …

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A Cure Worse Than The Disease?, Ellen D. Katz Jan 2013

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

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Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent Jan 2013

Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent

Faculty Scholarship

The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …

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What Was Wrong With The Record?, Ellen D. Katz Jan 2013

What Was Wrong With The Record?, Ellen D. Katz

Articles

Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.

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Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel Jan 2013

Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel

Faculty Scholarship

This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.

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On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi Jan 2013

On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi

Articles

In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising throughout the post-arrest justice process, extending beyond the …

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Real Judicial Restraint, Joel Alicea Jan 2013

Real Judicial Restraint, Joel Alicea

Scholarly Articles

The conservative legal movement has long stood simultaneously for originalism and judicial restraint. But in the past few years, the tension between a commitment to interpreting the Constitution as its authors intended and deferring to the will of legislators and the executive has become painfully clear. Does originalism demand judicial restraint, or is the Constitution undermined by such restraint?

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Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor Jan 2013

Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor

Journal of Business & Technology Law

No abstract provided.

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Innovation And Litigation: Tensions Between Universities And Patents And How To Fix Them, Jacob H. Rooksby Jan 2013

Innovation And Litigation: Tensions Between Universities And Patents And How To Fix Them, Jacob H. Rooksby

Law Faculty Publications

Universities that own patents have a problem. While nearly all are keen to enhance their revenue generated from patents, few are eager or prepared to enforce them in court, alone or with their exclusive licensees, should a third party deploy a product or process covered by a university-owned patent. Yet strict prudential standing requirements imposed by the United States Court of Appeals for the Federal Circuit (“CAFC”) effectively require university participation as plaintiffs in enforcement lawsuits over their exclusively licensed patents, regardless of a university’s effective ability or enthusiasm to participate in a given action. Supported by forty years of …

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Tips For Capturing 2014 Federal Court Clerkships, Carl W. Tobias Jan 2013

Tips For Capturing 2014 Federal Court Clerkships, Carl W. Tobias

Law Faculty Publications

Now is a perfect moment for analyzing 2014 clerkships because law students across the country have completed their productive summer employment and are poised to commence their final year. Below are ideas which could help aspirants secure those coveted positions that start during next August.

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Textualism And Obstacle Preemption, John D. Ohlendorf Jan 2013

Textualism And Obstacle Preemption, John D. Ohlendorf

Georgia Law Review

Commentators, both on the bench and in the academy,
have perceived an inconsistency between the Supreme
Court's trend, in recent decades, towards an increasingly
formalist approach to statutory interpretation and the
Court's continued willingness to find state laws preempted
as "obstacles to the accomplishment and execution of the
full purposes and objectives of Congress'"--so-called
"obstacle preemption." This Article argues that by giving
the meaning contextually implied in a statutory text
ordinary, operative legal force, we can justify most of the
current scope of obstacle preemption based solely on
theoretical moves textualism already is committed to
making.
The Article first sketches …

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A Reliance Approach To Precedent, Hillel Y. Levin Jan 2013

A Reliance Approach To Precedent, Hillel Y. Levin

Georgia Law Review

Why and when should courts presumptively defer to their
own past precedents? The doctrine of precedent lies at the
core of American jurisprudence and legal practice, but the
source of its normative force remains unclear.
Consequently, its application is confused and contested.
In this Article, I argue that precedent matters because
and to the extent that it generates reliance interests on the
part of the public. Although I am not the first to suggest
that reliance is the foundational justification for deference
to precedent, this Article represents the first sustained effort
to defend the reliance approach in deontological terms and …

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