Courts Commons^™

Kate Chase, The "Sphere Of Women's Work," And Her Influence Upon Her Father's Dissent In Bradwell V. Illinois, Richard Aynes

Akron Law Faculty Publications

Kate Chase was said to be the most beautiful and the most intelligent woman of her age. Her father, Salmon P. Chase, is remembered today as Lincoln’s secretary of the treasury and as a chief judge of the U. S. Supreme Court. In his own time, Chase was considered one of the nation’s political giants; Abraham Lincoln described him as “one and a half times bigger than any other man” he had ever known. Carl Schurz’s summary still echoes today: “More than anyone else he looked the great man. Tall, broad-shouldered, and proudly erect, . . . he was a …

Conjugal Disputes At The Jewish Court Of 18th Century Altona, Noa Shashar

Early Modern Workshop: Resources in Jewish History

Disputes between married couples in 18th century were sometimes brought before the Jewish court ( the Beit-Din). Analysis of protocols of session which dealt with such disputes reveals facts about tensions caused by contemporary family structure and marriage customs as well as about the means which the court applied to enforce policy. The texts presented here are excerpts from one of the protocol books of the Jewish court of Altona. Altona, at the time subject to the Danish King, shared institutions with the neighboring Jewish communities in Hamburg and Wandsbeck, a union which produced several kinds of documents covering a …

Brief Amicus Curiae Of The American Center For School Choice In Support Of Petitioners, Richard W. Garnett, John E. Coons

Court Briefs

Nos. 09-987, 09-991
Arizona Christian School Tuition Organization v. Kathleen M. Winn, Gale Garriott v. Kathleen M. Winn

On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Introduction and Summary of the Argument

We agree entirely with Petitioners that the panel below misapplied this Court’s relevant doctrines and decisions – including Zelman – and that the ruling under review is neither required by, nor consistent with, the First Amendment to our Constitution. Arizona’s tax-credit program does not impermissibly “establish” or “endorse” religion. Instead, it is an entirely permissible (and promising) policy experiment …

Brief Of Amici Curiae Intellectual Property Law Professors In Support Of Appellant/Cross-Appellee New Life Art, Inc. And Daniel A. Moore And Affirmance In Part, Mark Mckenna, Michael T. Sansbury

Court Briefs

No. 09-16412-AA, 10-10092-A
Board of Trustees of the University of Alabama v. New Life Art

Appeal from the United States District Court for the Northern District of Alabama, Western Division Civil Action No. CV-05-00585

The District Court properly held that New Life Art’s (“New Life”) creative works do not infringe the University of Alabama’s (“the University”) rights in the trade dress of its football uniforms, including the their crimson and white colors. First, New Life’s realistic depiction of the University’s football games is not likely to confuse consumers about the source of New Life’s goods, or as to the University’s …

Addressing Truancy Is A Complex Challenge, Barbara A. Babb, Gloria Danziger

All Faculty Scholarship

No abstract provided.

No Good Deed Goes Unpublished: Precedent-Stripping And The Need For A New Prophylactic Rule, Edward Cantu

Faculty Works

This paper addresses the “open secret” that federal appellate courts often strip their opinions of precedential value as a means to forgo fair, principled and/or thorough adjudication of issues raised in appeals. Is there a basis in contemporary constitutional doctrine for a presumption that appellants suffer constitutional injury when courts dispose of their appeals using non-precedential opinions? The author answers “yes.” The argument centers on case law establishing so-called “constitutional prophylactic rules,” which work to “overprotect” a given core right - that is, to create a presumption of constitutional injury without proof of it - when such is the only …

The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson

University of Michigan Journal of Law Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing" or "assisting") and works directly for the court system itself.

The huissier's report remains alien to the American lawyer, who is steeped in notions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation for litigation is …

Forward: Symposium On Broke And Broken: Can We Fix Our State Indigent Defense System?, Rodney J. Uphoff

Faculty Publications

The Symposium presenters and commentators, most of whom had worked at some point in their career as a public defender, brought a wealth of experience to the discussion. While the presentations and comments made that day, together with the articles that follow in this Symposium issue, do not provide any quick fix or easy solution, they do offer some important lessons for lawmakers to consider as states struggle to improve the plight of indigent defenders and their clients.

The Plea Jury, Laura I. Appleman

Indiana Law Journal

This Article argues that it is time to reform the much-criticized plea-bargaining process by restoring the Sixth Amendment jury trial right back to criminal adjudication. My proposal would incorporate the local community into the guilty-plea procedure through the use of a plea jury, thus solving a multitude of problems within the criminal justice system. In a plea jury, a lay panel of citizens would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders. My goal is to return the Sixth Amendment community-jury right to its proper …

When Is An Alternative Forum Available? Rethinking The Forum Non Conveniens Analysis, Joel H. Samuels

Indiana Law Journal

No abstract provided.

Interventions At The Supreme Court Of Canada: Accuracy, Affiliation, And Acceptance, Benjamin R. D. Alarie, Andrew J. Green

Osgoode Hall Law Journal

Interveners make submissions in about half of the cases heard by the Supreme Court of Canada, but the motivations for and consequences of the practice are not clearly understood. Considered broadly, there are at least three functions that the practice of intervention might perform. The first possibility is that hearing from interveners might provide objectively useful information to the Court (i.e., interveners might promote the "accuracy" of the Court's decision making). A second possibility is that the practice of intervention allows interveners to provide the "best argument" for certain partisan interests that judges might want to "affiliate" with. A third …

Inferiorizing Judicial Review: Popular Constitutionalism In Trial Courts, Ori Aronson

University of Michigan Journal of Law Reform

The ongoing debates over the legitimacy of judicial review-the power of courts to strike down unconstitutional statutes-as well as the evolving school of thought called "popular constitutionalism, " are characterized by a preoccupation with the Supreme Court as the embodiment of judicial power This is a striking shortcoming in prevailing constitutional theory, given the fact that in the United States, inferior courts engage in constitutional adjudication and in acts of judicial review on a daily basis, in ways that are importantly different from the familiar practices of the Supreme Court. The Article breaks down this monolithic concept of "the courts" …

Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Martin H. Redish, Peter Julian, Samantha Zyontz

Faculty Scholarship

Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …

The Fifth Amendment & The Endangered Species Act: An Examination Of Regulatory Takings & The California Water Crisis, Wesley Lawrence Carlson

Agribusiness

This study was conducted to determine if reductions in water deliveries to farmers in the San Joaquin Valley due to enforcement of the Endangered Species Act has resulted in a compensable Fifth Amendment taking of property. A case study of the California Water Crisis is examined. The subject of this case study is the Westlands Water District.

The details of the California Water Crisis were outlined. The necessary elements of a takings investigation were identified for the case study. These elements were applied to takings criteria that has been established by the courts. Using prior court rulings as a guide …

The Unblinking Eye Turns To Appellate Law: Cameras In Trial Courtrooms And Their Effect On Appellate Law, Mary E. Adkins

UF Law Faculty Publications

Over the past twenty years, most American courthouses have been wired with audio and video recording equipment to enhance security and economize on court reporting costs. These in-house alterations have an overlooked consequence for appeals. The mere existence of these recordings of all courtroom occurrences will unavoidably change the way appeals are handled and reviewed.

Appellate courts will need to make new types of decisions on whether to accept the audio-video recordings as appellate records or continue the reliance on transcripts and items entered into evidence. If the appellate courts do not accept audio-video recordings as appellate records, or if …

Sex, Drug Courts, And Recidivism, Doria Nour Dandan

UNLV Theses, Dissertations, Professional Papers, and Capstones

Research studies have identified gender differences in the drug abusing patterns and treatment needs of men and women. Even so, studies on the drug court model have not assessed drug court effectiveness across sex. Using secondary data collected from the Ada County Drug Court, the recidivism rates of drug court participants (n=259) and probationers (n=235) were analyzed. Drug court participants were found to be less likely to recidivate compared to probationers, which supports previous research on drug court effectiveness. Regression analyses failed to find an interaction between group membership and sex, thereby indicating that the effect of the drug court …

Improving Federal Judicial Selection, Carl Tobias

University of Richmond Law Review

Part I descriptively analyzes the volume. Part II evaluates the many insights Wittes contributes to readers' appreciation of contemporary federal judicial selection. Part III details numerous recommendations.

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical Justice, Evangeline A. Zimmerman

University of Michigan Journal of Law Reform

In 1984 the Sentencing Reform Act was passed, ending fully discretionary sentencing by judges and allowing for the creation of the Federal Sentencing Guidelines ("FSG" or "Guidelines"). This Note proposes that the Guidelines failed not only because they ran afoul of the Sixth Amendment, as determined by the Supreme Court in 2005, but also because they lacked a clear underlying purpose, had a misplaced trust in uniformity, and were born of political compromise. Moreover, the effect of the FSG was to blindly shunt discretionary decisions from judges, who are supposed to be neutral parties, to prosecutors, who are necessarily partisan. …

The Impact Of Civilian Aggravating Factors On The Military Death Penalty (1984-2005): Another Chapter In The Resistance Of The Armed Forces To The Civilianization Of Military Justice, Catherine M. Grosso, David C. Baldus, George Woodworth

University of Michigan Journal of Law Reform

In 1984, the U.S. Armed Forces amended its capital punishment system for death eligible murder to bring it into compliance with Furman v. Georgia. Those amendments were modeled after death penalty legislation prevailing in over thirty states. After a brief period between 1986 and 1990, the charging decisions of commanders and the conviction and sentencing decisions of court martial members (jurors) transformed the military death penalty system into a dual system that treats two classes of death eligible murder quite differently. Since 1990, a member of the armed forces accused of a killing a commissioned officer or murder with a …

The Managerial Judge Goes To Trial, Elizabeth G. Thornbug

University of Richmond Law Review

No abstract provided.

Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max Minzner

BYU Law Review

No abstract provided.

Bombed Away: How The Second Circuit Destroyed Fourth Amendment Rights Of U.S. Citizens Abroad, Carla Crandall

BYU Law Review

No abstract provided.

Terrorism And The Law: Show Trials And Why The Show Must Go On, Ibpp Editor

International Bulletin of Political Psychology

The author discusses the nature and meaning of terrorism trials during the United States’ war on terror.

The Ripple Effect: Guantanamo Bay In The United Kingdom's Courts, C.R.G. Murray

Pace International Law Review Online Companion

The human rights abuses suffered by detainees held at Guantánamo Bay have dominated many of the cases before the United Kingdom’s courts. The Human Rights Act of 1998, still relatively new to the statute book, played a central role in the detainees’ arguments. The ultimate court decisions, however, often relegate such factors to the background of the case. This article examines why the deciding courts declined to develop the law of diplomatic protection on the basis of human rights concerns, and why such arguments continue to be employed by detainees. Furthermore, the article assesses why the English courts have shown …

National Security Courts: A European Perspective, Mindia Vashakmadze

Pace International Law Review Online Companion

No abstract provided.

Jurisdictional Discovery In United States Federal Courts, S. I. Strong

Faculty Publications

The article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes …

The Language Of Supreme Court Briefs: A Large-Scale Quantitative Investigation, Brady Coleman, Quy Phung

The Journal of Appellate Practice and Process

No abstract provided.

Using Legislative History In Arkansas To Determine Legislative Intent: An Examination Of Cases And Review Of The Sources, Kathryn C. Fitzhugh, Melissa M. Serfass

University of Arkansas at Little Rock Law Review

This article summarizes the legislative process in Arkansas. It lists and provides descriptions of Arkansas's primary sources of legislation, including print and online resources. An examination of case law focuses on this question: what do Arkansas appellate courts mean when they say they consider legislative history in determining the intent of the legislature; specifically, what types of information will the courts consider? A brief discussion of several general rules of statutory construction in Arkansas precedes an examination of specific sources the courts have relied on. These sources include House and Senate Journals, act titles, preambles, emergency clauses, official commentary, executive …

State Supreme Court Opinions As Law Development, Victor Eugene Flango

The Journal of Appellate Practice and Process

No abstract provided.