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Full-Text Articles in Courts

Supreme Court Of The United States, October Term 2012 Preview, Georgetown University Law Center, Supreme Court Institute Jan 2012

Supreme Court Of The United States, October Term 2012 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

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Narrative And Drama In The American Trial, Robert P. Burns Jan 2012

Narrative And Drama In The American Trial, Robert P. Burns

Faculty Working Papers

This short essay summarizes an understanding of the trial as a medium in which law is realized or actualized, rather than imposed or enforced. It suggests that we should pay close attention to the actual practices that prevail at trial, its "consciously structured hybrid" of languages and practices, if we want to understand the nature of law.

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Why Mortgage "Formalities" Matter, David A. Dana Jan 2012

Why Mortgage "Formalities" Matter, David A. Dana

Faculty Working Papers

This Article argues that adherence to mortgage formalities regarding foreclosure is valuable for expressive reasons and also as a potential deterrent to future undesirable underwriting and securitization practices. The Article reviews how some courts have in effect written procedural requirements for foreclosure out of the law, and asks why these courts have done so and whether lenders' behavior might have been improved during this housing crisis had the state courts uniformly afforded equal respect to the legal rights of homeowners and those of lenders.

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The Multiple Roles Of International Courts And Tribunals: Enforcement, Dispute Settlement, Constitutional And Administrative Review, Karen J. Alter Jan 2012

The Multiple Roles Of International Courts And Tribunals: Enforcement, Dispute Settlement, Constitutional And Administrative Review, Karen J. Alter

Faculty Working Papers

This chapter is part of an upcoming interdisciplinary volume on international law and politics. The chapter defines four judicial roles states have delegated to international courts (ICs) and documents the delegation of dispute settlement, administrative review, enforcement and constitutional review jurisdiction to ICs based on a coding of legal instruments defining the jurisdiction of 25 ICs. I show how the design of ICs varies by judicial role and argue that the delegation of multiple roles to ICs helps explain the shift in IC design to include compulsory jurisdiction and access for nonstate actors to initiate litigation. I am interested in …

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Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich Jan 2012

Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich

Faculty Working Papers

Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only "Define" offenses that clearly already exist in international law, or does it have discretion …

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The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander Jan 2012

The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander

Faculty Working Papers

Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the "courts of law." Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief's authority as constitutionally benign. This Essay explores the origins of the Constitution's choice of the "courts" as the repository of appointment power. The decision was made against the backdrop …

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Volume 79 (2011-2012) Jan 2012

Volume 79 (2011-2012)

Tennessee Law Review

No abstract provided.

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After The Flood: The Legacy Of The "Surge" Of Federal Immigration Appeals, Stacy Caplow Jan 2012

After The Flood: The Legacy Of The "Surge" Of Federal Immigration Appeals, Stacy Caplow

Faculty Scholarship

No abstract provided.

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Veterans Court: Towards The Implementation Of A Collaborative Justice Model In San Luis Obispo County, Daniel Smee Jan 2012

Veterans Court: Towards The Implementation Of A Collaborative Justice Model In San Luis Obispo County, Daniel Smee

Continuing Education (CAPSTONE)

Veterans’ treatment courts represent an emerging trend across the country of collaborative justice designed to deal with criminal justice issues stemming from problems linked to military service. This approach places the veteran in VA (Veterans Affairs) treatment programs as a diversion from incarceration. There are few such courts in California (nine) largely in non-rural counties. This study investigated two rural counties, Tulare and Santa Barbara with Veterans courts to develop a model for such a court in San Luis Obispo County. Early recidivism data at the one-year point for Tulare County showed a zero percent rate of criminal behavior (12 …

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Fill The Bench And Empty The Docket: Filibuster Reform For District Court Nominations, Jeremy Garson Jan 2012

Fill The Bench And Empty The Docket: Filibuster Reform For District Court Nominations, Jeremy Garson

University of Michigan Journal of Law Reform Caveat

Judges are, without question, vital to our justice system. They interpret, adapt, and apply the law. They resolve disputes for the parties to the case at issue and provide guidance to others in analogous situations. They are the gears that keep the wheels of justice moving. Unfortunately, in the case of our federal courts, many of these gears are missing. Eighty-three of our 874 federal judgeships are vacant, including thirty-four that have been declared “judicial emergencies.” Our Constitution vests the President with the power to nominate federal judges and the Senate with the power to confirm or reject them, and …

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Session I: The Legacy Of Justice Arthur Goldberg, 29 J. Marshall J. Computer & Info. L. 285 (2012), Samuel R. Olken, Gerald Berendt, Gilbert A. Cornfield, Gilbert Feldman, David Stebenne, Milton I. Shadur Jan 2012

Session I: The Legacy Of Justice Arthur Goldberg, 29 J. Marshall J. Computer & Info. L. 285 (2012), Samuel R. Olken, Gerald Berendt, Gilbert A. Cornfield, Gilbert Feldman, David Stebenne, Milton I. Shadur

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

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Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Mckinley Brennan Jan 2012

Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Mckinley Brennan

Working Paper Series

This is my Introduction to Legal Affinities: Explorations in the Legal Form of Thought (forthcoming 2012) (co-edited with H. Jefferson Powell and Jack Sammons), a volume of essays dedicated to exploring the work of Joseph Vining. The Introduction introduces Vining’s phenomenology of law and surveys the themes and topics developed by the volume’s eight authors: Joseph Vining, Judge John T. Noonan, Jr., Rev. John McCausland, H. Jefferson Powell, Jack Sammons, Steve Smith, James Boyd White, and Patrick Brennan.

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Lower Court Constitutionalism: Circuit Court Discretion In A Complex Adaptive System, Doni Gewirtzman Jan 2012

Lower Court Constitutionalism: Circuit Court Discretion In A Complex Adaptive System, Doni Gewirtzman

American University Law Review

While federal circuit courts play an essential role in defining what the Constitution means, one would never know it from looking at most constitutional scholarship. The bulk of constitutional theory sees judge-made constitutional law through a distorted lens, one that focuses solely on the Supreme Court with virtually no attention paid to other parts of the judicial hierarchy. On the rare occasions where circuit courts appear on the radar screen, they are treated either as megaphones for communicating the Supreme Court’s directives or as tools for implementing the theorist’s own interpretive agenda. Both approaches would homogenize the way circuit courts …

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2011 International Trade Law Decisions Of The Federal Circuit, Gregory J. Spak, Forrest R. Hansen, Daniel J. Hickman Jan 2012

2011 International Trade Law Decisions Of The Federal Circuit, Gregory J. Spak, Forrest R. Hansen, Daniel J. Hickman

American University Law Review

No abstract provided.

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Changing Voices In A Familiar Conversation About Rules Vs. Standards: Veterans Law At The Federal Circuit In 2011, James D. Ridgway Jan 2012

Changing Voices In A Familiar Conversation About Rules Vs. Standards: Veterans Law At The Federal Circuit In 2011, James D. Ridgway

American University Law Review

No abstract provided.

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Qualified Immunity: Protecting All But The Plainly Incompetent (And Maybe Some Of Them, Too), 45 J. Marshall L. Rev. 1023 (2012), Susan Bendlin Jan 2012

Qualified Immunity: Protecting All But The Plainly Incompetent (And Maybe Some Of Them, Too), 45 J. Marshall L. Rev. 1023 (2012), Susan Bendlin

UIC Law Review

No abstract provided.

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On Locating The Rights Of Lost, 45 J. Marshall L. Rev. 1051 (2012), Ricardo A. Sunga Iii Jan 2012

On Locating The Rights Of Lost, 45 J. Marshall L. Rev. 1051 (2012), Ricardo A. Sunga Iii

UIC Law Review

No abstract provided.

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Victim Participation At The International Criminal Court And The Extraordinary Chambers In The Courts Of Cambodia: A Feminist Project, Susana Sacouto Jan 2012

Victim Participation At The International Criminal Court And The Extraordinary Chambers In The Courts Of Cambodia: A Feminist Project, Susana Sacouto

Michigan Journal of Gender & Law

The question this Article poses is whether victim participation--one of the most recent developments in international criminal law--has increased the visibility of the actual lived experience of survivors of sexual and gender-based violence in the context of war, mass violence, or repression. Under the Rome Statute, victims of the world's most serious crimes were given unprecedented rights to participate in proceedings before the Court. Nearly a decade later, a similar scheme was established to allow victims to participate as civil parties in the proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC or Extraordinary Chambers), a court created …

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Sources Of Law, Sources Of Authority: The Failure Of The Philippines' Code Of Muslim Personal Laws, Gregory M. Chiarella Jan 2012

Sources Of Law, Sources Of Authority: The Failure Of The Philippines' Code Of Muslim Personal Laws, Gregory M. Chiarella

Washington International Law Journal

The Code of Muslim Personal Laws of the Philippines (“CMPL”) was established in 1977 as part of an effort to quell longstanding violence between Christians and Muslims in the predominantly Christian country. This codification of Islamic laws in the areas of marriage, divorce, and inheritance provided for a system of Shari‛a courts that would operate within the larger framework of the legal system of the Philippines. Three and a half decades later, the CMPL has had little effect. The Shari‛a courts are understaffed and underutilized, accounting for less than 0.1% of the caseload in the Philippines. The CMPL is plagued …

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Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben Jan 2012

Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben

Faculty Publications

The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …

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Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong Jan 2012

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Publications

This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …

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Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera Jan 2012

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

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The Ideological Divide: Conflict And The Supreme Court's Certiorari Decision , Emily Grant, Scott A. Hendrickson, Michael S. Lynch Jan 2012

The Ideological Divide: Conflict And The Supreme Court's Certiorari Decision , Emily Grant, Scott A. Hendrickson, Michael S. Lynch

Cleveland State Law Review

This Article bridges a gap in existing literature by evaluating, from an empirical perspective, the impact of conflict among the lower courts on the Supreme Court’s decision to grant or deny a petition for a writ of certiorari. Specifically, this Article looks at the political ideology of the lower courts involved in a split of authority on federal law and compares those positions to the political ideology of the Supreme Court itself. This Article concludes that the ideological content of lower court opinions in a conflict case impacts the Supreme Court’s certiorari decisions in a statistically significant way, and thus …

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Custody Rights Of Lesbian And Gay Parents Redux: The Irrelevance Of Constitutional Principles, Nancy Polikoff Jan 2012

Custody Rights Of Lesbian And Gay Parents Redux: The Irrelevance Of Constitutional Principles, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

Disputes over custody and visitation can arise when a marriage ends and one parent comes out as gay or lesbian. the heterosexual parent may seek custody or may seek to restrict the activities of the gay or lesbian parent, or the presence of the parent's same-sex partner, during visitation. A gay or lesbian parent's assertion of constitutional rights has not been an effective response to such efforts. that is not likely to change. Advocates for gay and lesbian parents have argued forcefully for a nexus text, permitting consideration of a parent's sexual orientation only when there is evidence of an …

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Film Review: Mississippi Innocence And The Prosecutor’S Guilt, Angela J. Davis Jan 2012

Film Review: Mississippi Innocence And The Prosecutor’S Guilt, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Film review of Mississippi Innocence. A documentary film by Joe York. Media and Documentary Projects at the University of Mississippi (2011)

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"Bad Juror" Lists And The Prosecutor's Duty To Disclose, Ira Robbins Jan 2012

"Bad Juror" Lists And The Prosecutor's Duty To Disclose, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Prosecutors sometimes use what are known as "bad juror" lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant's right to be tried by a jury of his or her peers, but it also violates potential jurors' rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts. This Article addresses the prosecutor's duty to disclose bad-juror lists. It reviews the federal …

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A Crisis In Federal Habeas Law, Eve Brensike Primus Jan 2012

A Crisis In Federal Habeas Law, Eve Brensike Primus

Reviews

Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …

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Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus Jan 2012

Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus

Reviews

Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system.

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An Explicit Policy Lever For Patent Scope, Anna B. Laakmann Jan 2012

An Explicit Policy Lever For Patent Scope, Anna B. Laakmann

Michigan Telecommunications & Technology Law Review

Since its inception in 1982, the Federal Circuit has declined to take an overt role in setting patent policy. Dan Burk and Mark Lemley have observed that the court instead implicitly engineers patent policy through selective application of its patentability rules, which operate as "policy levers." Recent decisions on the patentability of diagnostic and therapeutic methods illustrate a significant problem with this approach. By maintaining a façade of adjudicative rule formalism while tacitly manipulating its rules to approximate policy goals, the court perpetuates empirical uncertainty about the patent law's practical effects. This Article proposes that the Federal Circuit use the …

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The Tangled Thicket Of Health Care Reform: The Judicial System In Action, Gene Magidenko Jan 2012

The Tangled Thicket Of Health Care Reform: The Judicial System In Action, Gene Magidenko

University of Michigan Journal of Law Reform Caveat

On March 23, 2010, after a lengthy political debate on health care reform, President Barack Obama signed the Patient Protection and Affordable Care Act (PPACA) into law. A week later, he signed the Health Care and Education Reconciliation Act of 2010, which amended certain provisions of PPACA. But far from ending the intense national debate on the issue, these enactments opened a new front of battle in the federal courts that will almost certainly make its way to the United States Supreme Court. Much of this litigation focuses on § 1501 of PPACA, which contains the controversial individual mandate requiring …

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