Courts Commons^™

Sex And The Supremes: Towards A Legal Theory Of Sexuality, Elaine Craig

PhD Dissertations

This thesis examines how the Supreme Court of Canada, across legal contexts, has tended to conceptualize sexuality. It focuses primarily on areas of public law including sexual assault law, equality for sexual minorities, sexual harassment and obscenity and indecency laws. There were a number of trends revealed upon reviewing the jurisprudence in this area. First, the Court’s decisions across legal contexts reveal a tendency to conceptualize sexuality as innate, as a pre-social naturally occurring phenomenon and as an essential element of who we are as individuals. This is true whether one is speaking of the approach to gay and lesbian …

Israel, Palestine, And The Icc, Daniel Benoliel, Ronen Perry

Michigan Journal of International Law

In the wake of the Israel-Gaza 2008-09 armed conflict and recently commenced process at the International Criminal Court (ICC), the Court will soon face a major challenge with the potential to determine its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, either for the purposes of the Court itself, or perhaps even in general. The ICC, which currently has 113 member states, has not yet recognized Palestine as a sovereign state or as a member. Moreover, although the ICC potentially has the authority to investigate crimes which fall into its subject-matter …

Case For Overseas Article Iii Courts: The Blackwater Effect And Criminal Accountability In The Age Of Privatization, The, Alan F. Williams

University of Michigan Journal of Law Reform

A series of high-profile cases involving the alleged murders of Iraqi civilians by U.S. contractors operating overseas has highlighted the longstanding problem of how best to address crimes committed overseas by civilian employees, dependents, or contractors of the U.S. government. Among the most notorious of these incidents is the alleged killing of seventeen Iraqi civilians in Nisour Square in Baghdad on September 16, 2007 by employees of Blackwater Worldwide, a private corporation specializing in military operations that has subsequently renamed itself "Xe."2News reports of this incident prompted embarrassment and outrage as many Americans learned that U.S. civilian contractors like the …

Designing Bespoke Transitional Justice: A Pluralist Process Approach, Jaya Ramji-Nogales

Michigan Journal of International Law

Although many scholars agree that contemporary transitional justice mechanisms are flawed, a comprehensive and unified alternative approach to accountability for mass violence has yet to be propounded. Like many international lawyers, transitional justice theorists have focused their assessment efforts on the successes and failures of established institutions. This Article argues that before we can measure whether transitional justice is working, we must begin with a theory of what it is trying to achieve. Once we have a coherent theory, we must use it ex ante, to design effective transitional justice mechanisms, not just to assess their effectiveness ex post. Drawing …

Uniformity, Inferiority, And The Law Of The Circuit Doctrine, Martha Dragich

Faculty Publications

This Article considers whether Congress or the Supreme Court could reverse the law of the circuit doctrine. Part I explores the importance of uniformity in federal law. Part II considers the extent to which a desire for uniformity has shaped the structure of the federal court system. Part III considers how the evolution of the courts of appeals as independent regional adjudicatory bodies affects the uniformity objective. Part IV examines the attributes of superior and inferior courts, and applies these criteria to the current courts of appeals. Part V examines the tension between uniformity and inferiority as determinants of the …

Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma

Michigan Law Review First Impressions

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke[hereinafter Miller-El …

Reinventing The Eeoc, Nancy M. Modesitt

All Faculty Scholarship

The Equal Employment Opportunity Commission (EEOC) has struggled to be a meaningful force in eradicating employment discrimination since its inception. The primary reasons for this are structural in nature. The EEOC was designed to react to discrimination complaints by investigating and conciliating all of the thousands of complaints filed annually. The EEOC has never been able to investigate all these complaints despite using the vast majority of its resources attempting to do so. The devotion of resources to managing and investigating the huge volume of complaints prevents the EEOC from taking more effective steps to eliminate discrimination. This article proposes …

Presumed Guilty Until Proven Innocent: The Burden Of Proof In Wrongful Conviction Claims Under State Compensation Statutes, Daniel S. Kahn

University of Michigan Journal of Law Reform

Despite significant efforts to uncover and prevent wrongful convictions, little attention has been paid to the compensation of wrongfully convicted individuals once they are released from prison. State compensation statutes offer the best path to redress because they do not require the claimant to prove that the state was at fault for the wrongful conviction and because they are not susceptible to the same political influences as other methods of compensation. However, even under compensation statutes, too many meritorious claims are dismissed, settled for far too little, or never brought in the first place. After examining the current statutory framework, …

A Definite Claim On Claim Indefiniteness: An Empirical Study Of Definiteness Cases Of The Past Decade With A Focus On The Federal Circuit And The Insolubly Ambiguous Standard, Christa J. Laser

Law Faculty Articles and Essays

This empirical study of patent claim definiteness cases of the past decade makes several novel findings including: (1) slightly more than half of final Federal Circuit definiteness cases hold the asserted claims not indefinite; (2) the percentage of non-Federal Circuit definiteness cases holding claims not indefinite increased approximately 60 percentage points over the ten-year period focused on in this analysis;(3) the Federal Circuit more often held chemical claims not indefinite, but electrical claims indefinite; and (4) the Federal Circuit more often held claims with term clarity issues not indefinite, but claims with means-plus-function issues indefinite. These differences partially result from …

Frames Of Injustice: The Bias We Overlook, Adam Benforado

Indiana Law Journal

The Cultural Cognition Project (CCP) at Yale Law School and the Project on Law and Mind Sciences (PLMS) at Harvard Law School draw on similar research and share a similar goal of uncovering the dynamics that shape risk perceptions, policy beliefs, and attributions underlying our laws and legal theories. Nonetheless, the projects have failed to engage one another in a substantial way. This Article attempts to bridge that gap by demonstrating how the approach taken by PLMS scholars can crucially enrich CCP scholarship. As a demonstration, this Article engages the case of Scott v. Harris, 550 US. 372 (2007), the …

That Ain't Kosher, Robert Steinbuch, Brett Tolman

University of Arkansas at Little Rock Law Review

No abstract provided.

Further Empirical Insights And Findings On The Eighth Circuit, Robert E. Steinbuch

Law Faculty Scholarship

No abstract provided.

Unfettered Discretion: Criminal Orders Of Protection And Their Impact On Parent Defendants, David Michael Jaros

Indiana Law Journal

The last two decades have witnessed an astonishing increase in the use of the criminal justice system to police neglectful parents. Recasting traditional allegations of neglect as criminal charges of endangering the welfare of a child, prosecutors and the police have involved criminal courts in the regulation of aspects of the parent-child relationship that were once the sole province of family courts. This Article explores the legal implications of vesting judges in these cases with the unfettered discretion to issue protective orders that criminalize contact between a parent and her child.I argue that procedures for issuing protective orders that were …

"Why Rebottle The Genie?": Capitalizing On Closure In Death Penalty Proceedings, Jody L. Madeira

Indiana Law Journal

Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant's constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what …

Civil Judicial Subsidy, Brendan S. Maher

Indiana Law Journal

No abstract provided.

Facial Challenges And Separation Of Powers, Luke Meier

Indiana Law Journal

No abstract provided.

Oral Dissenting On The Supreme Court, Christopher W. Schmidt, Carolyn Shapiro

William & Mary Bill of Rights Journal

In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have …

Expanding The Role Of North Carolina State Courts In Resolving Public Housing Disputes, Nooree Lee

North Carolina Central Law Review

No abstract provided.

Protecting Nominative Fair Use, Parody, And Other Speech-Interests By Reforming The Inconsistent Exemptions From Trademark Liability, Samuel M. Duncan

University of Michigan Journal of Law Reform

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for "speech-interests" are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are "protected" by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor …

Inherent Jurisdiction And Its Application By Nova Scotiacourts: Metaphysical, Historical Or Pragmatic?, William H. Charles

Dalhousie Law Journal

The author explores the concept of inherent jurisdiction in the context of its use and application by the courts of Nova Scotia. A general in-depth discussion ofthe nature and source(s) of the concept is followed by an examination of three recent Court of Appeal decisions in an effort to determine that court's understanding of inherent jurisdiction. The Court of Appeal's understanding and sense of the concept is then contrasted with its use and application by the trial courts of Nova Scotia over a period of 150 years. The approach of the two levels of court to inherent jurisdiction is compared …

Unlv Magazine, Tony Allen, Shane Bevell, Donna Mcaleer, Ched Whitney, Cate Weeks

UNLV Magazine

No abstract provided.

New Pleading, New Discovery, Scott Dodson

Faculty Publications

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintiffs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

Two Paths To Judicial Power: The Basic Structure Doctrine And Public Interest Litigation In Comparative Perspective, Manoj Mate

San Diego International Law Journal

This Article analyzes two key critical moments in the empowerment of the Supreme Court of India--the assertion of the basic structure doctrine, in which the Court asserted that constitutional amendments may be held unconstitutional on substantive grounds, and the development of the Public Interest Litigation (PIL) regime, through which the Court sought to protect and promote the rule of law and assume an expanded role in governance. I argue, in this article, that these two moments are exemplars of two types of moments that capture distinct aspects of the role of courts in different polities--"constitutional entrenchment" and "judicialization of governance" …

Filling The Criminal Liability Gap For Private Military Contractors Abroad: U.S. V. Slough And The Civilian Extraterritorial Jurisdiction Act Of 2010, Missye Brickell

Legislation and Policy Brief

To ensure that all contractors who commit crimes in Iraq and Afghanistan can be prosecuted effectively in the United States, Congress must pass legislation to update Federal criminal law and fill the gaps that may leave certain types of contractors free from any criminal liability. The Civilian Extraterritorial Jurisdiction Act of 2010 (CEJA) attempts to do just that, and while it may deter some PMCs from participating in the U.S. military and security contracting market, the benefits of having a fully accountable U.S. legal system outweigh the drawbacks for individual contracting companies.

“Bring[Ing] Our Enemies To Justice”: Terrorism And The Court, Anna Elazan

Legislation and Policy Brief

This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments …

Supreme Court Of The United States, October Term 2010 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Tipsy/Waukell Dave Feud, Susie Van Kirk

Susie Van Kirk Papers

Newspaper references from the Daily Humboldt Times and the Del Norte Record and historical analysis of the feud between Tipsy Frank and Waukel Dave in the late 1800s.

"DHT (1 Jan. 1887) From Alex Dewar, who has just returned from the Klamath country, we learn of the killing of an Indian bearing the sobriquet of 'Tipsy Frank.' During the past four or five years this Indian has killed several of his brethren and has been considered as a very hard character. Recently he stole a horse from another Indian called 'Waukel Dave.' Dave did not relish the idea of losing …

Taking Out The Context: A Critical Analysis Of Associated Press V. Canterbury, Kevin Gillen

West Virginia Law Review

No abstract provided.

Insterstitial Exclusivities After Association For Molecular Pathology, Mary Mitchell, Dana A. Remus

Michigan Law Review First Impressions

The high profile cases Bilski v. Kappos and Association for Molecular Pathology v. United States Patent and Trademark Office have renewed public debate about the proper scope of patentable subject matter. The subject matter inquiry has traditionally been treated as a threshold inquiry in patent law, serving a gate-keeping function by defining the types of inventions that are eligible for patent protection. The Patent Office and courts have approached the subject matter inquiry both by determining whether an invention falls into a statutory category-processes, machines, manufactures, or compositions of matter-as well as by determining whether an invention falls into a …