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Full-Text Articles in Courts

A Uniform System For The Enforceability Of Forum Selection Clauses In Federal Courts, Ryan T. Holt Nov 2009

A Uniform System For The Enforceability Of Forum Selection Clauses In Federal Courts, Ryan T. Holt

Vanderbilt Law Review

In the early 1980s, a successful and ambitious Alabama businessman named Walter H. Stewart purchased a failing local copying business. Through the Stewart Organization, a corporation he controlled, Stewart sought to steer this troubled business to the realm of profitability. To do so, he entered into a dealership contract with Ricoh Corporation, a national manufacturer of copy machines that conducted its operations in New York. Unfortunately, their relationship soured. Stewart sued Ricoh in an Alabama federal district court, basing jurisdiction on diversity of citizenship. Ricoh did not want to litigate in Alabama, and the original dealership contract seemed to provide …

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Professor Robert E. Shepherd, Jr.: Tending To His Flock To Improve Its Lot, John P. Cunningham Nov 2009

Professor Robert E. Shepherd, Jr.: Tending To His Flock To Improve Its Lot, John P. Cunningham

University of Richmond Law Review

No abstract provided.

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In Memoriam: Robert E. Shepherd, Jr., John G. Douglass Nov 2009

In Memoriam: Robert E. Shepherd, Jr., John G. Douglass

University of Richmond Law Review

No abstract provided.

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Professor Robert E. Shepherd, Jr. September 22, 1937 - December 11, 2008, Hon. Walter S. Felton Jr. Nov 2009

Professor Robert E. Shepherd, Jr. September 22, 1937 - December 11, 2008, Hon. Walter S. Felton Jr.

University of Richmond Law Review

No abstract provided.

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Free Speech Federalism, Adam Winkler Nov 2009

Free Speech Federalism, Adam Winkler

Michigan Law Review

For decades, constitutional doctrine has held that the Constitution's guarantee of freedom of speech applies equally to laws adopted by the federal, state, and local governments. Nevertheless, the identity of the government actor behind a law may be a significant, if unrecognized, factor in free speech cases. This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments. Courts applying strict …

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A Look Back And A Look Forward: Legislative And Regulatory Highlights For 2008 And 2009 And A Discussion Of Juvenile Transfer, Andrew K. Block Nov 2009

A Look Back And A Look Forward: Legislative And Regulatory Highlights For 2008 And 2009 And A Discussion Of Juvenile Transfer, Andrew K. Block

University of Richmond Law Review

No abstract provided.

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The Structural Case For Vertical Maximalism, Tara Leigh Grove Nov 2009

The Structural Case For Vertical Maximalism, Tara Leigh Grove

Faculty Publications

Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …

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A Sea Of Confusion: The Shipowner's Limitation Of Liability Act As An Independent Basis For Admiralty Jurisdiction, Amie L. Medley Nov 2009

A Sea Of Confusion: The Shipowner's Limitation Of Liability Act As An Independent Basis For Admiralty Jurisdiction, Amie L. Medley

Michigan Law Review

The Shipowner's Limitation of Liability Act of 1851 allowed the owner of a vessel to limit his liability in the case of an accident to the value of the vessel and its cargo if he could show he had no knowledge of or participation in the negligent act that resulted in the loss. In 1911, the Supreme Court decided Richardson v. Harmon, a case which was interpreted for several decades to hold that the Limitation Act formed an independent basis for admiralty jurisdiction. In a 1990 case, the Supreme Court stated in a footnote that it would not reach …

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Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether Oct 2009

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether

Working Paper Series

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, …

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Supreme Court Of The United States, October Term 2009 Preview, Update: October 26, 2009, Georgetown University Law Center, Supreme Court Institute Oct 2009

Supreme Court Of The United States, October Term 2009 Preview, Update: October 26, 2009, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

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What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson Oct 2009

What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson

Faculty Publications

Section 411(a) of the Copyright Act of 1976 provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” In this case, a district court approved a class action settlement that purported to resolve both registered and unregistered copyright claims. The Supreme Court is being asked to decide whether that registration requirement is a limitation on federal court subject-matter jurisdiction.

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Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli Oct 2009

Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli

Cardozo Public Law, Policy & Ethics Journal

The article argues that courts misapply the First Amendment right of access by disclosing juror identities, which can lead to harassment. It advocates for concealing juror information to protect them, similar to how soldiers are protected after service. The solution proposed is to respect jurors' preferences regarding disclosure.

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Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear Oct 2009

Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear

UF Law Faculty Publications

This Article explores the contours of state regulatory power in the foreign injury context. The Supreme Court has long declined to question forum choice in domestic cases, apparently concluding that any other response would be inconsistent with our federalism. But move the injury offshore and the judicial deference to state regulatory supremacy evaporates. Federal judges subject forum choice in transnational tort actions to exacting scrutiny, routinely dismissing such claims on forum non conveniens grounds with no examination of the state interests at stake. This Article first considers whether the offshore nature of a foreign injury diminishes or even extinguishes traditional …

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Arkansas's Tradition Of Popular Constitutional Activism And The Ascendancy Of The Arkansas Supreme Court, Jerald A. Sharum Oct 2009

Arkansas's Tradition Of Popular Constitutional Activism And The Ascendancy Of The Arkansas Supreme Court, Jerald A. Sharum

University of Arkansas at Little Rock Law Review

No abstract provided.

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An Empirical Analysis Of Reversal Rates In The Eighth Circuit During 2008, Robert E. Steinbuch Oct 2009

An Empirical Analysis Of Reversal Rates In The Eighth Circuit During 2008, Robert E. Steinbuch

Law Faculty Scholarship

No abstract provided.

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De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke Oct 2009

De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke

San Diego International Law Journal

The Military Commissions Act of 2006 (MCA) marked the high tide and endgame for hiding torture. It's unraveling did more to uncover the Bush administration's secret interrogation practices than did the political change in Washington. International and domestic backlash against the government's embrace of harsh interrogation techniques, frequently rising to the level of torture, also played a role. However, the Supreme Court's decisions ending in Boumediene v. Bush played the decisive role. Boumediene, and the Supreme Court decisions that led up to it, made inevitable that which politics had left contingent and reversible. It also provided legal and political cover.

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"Knock And Talk" And The Fourth Amendment, Craig M. Bradley Oct 2009

"Knock And Talk" And The Fourth Amendment, Craig M. Bradley

Indiana Law Journal

No abstract provided.

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In Defense Of Ideology: A Principled Apporach To The Supreme Court Confirmation Process, Lori A. Ringhand Oct 2009

In Defense Of Ideology: A Principled Apporach To The Supreme Court Confirmation Process, Lori A. Ringhand

William & Mary Bill of Rights Journal

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court Justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to rethink the role of the Supreme Court and, consequently, the process by which we select Supreme Court Justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …

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Retribution's Role, John Bronsteen Oct 2009

Retribution's Role, John Bronsteen

Indiana Law Journal

Two main types of principle, retributive and consequentialist, have long been identified as the main approaches to justifying criminal punishment. Retributivists deem punishment justified by the wrongdoing of the offender, whereas utilitarians deem it justified by its good consequences such as deterring future crime. Over the past fifty years, each has spent decades as the dominant theory, and many hybrid theories have also been advanced. But few, if any, of the hybrid approaches have valued heavily both retributive and consequentialist considerations while locating the particular justificatory role each category plays. This Article points in that direction by reframing the central …

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Foreword, Deanna Coleman Oct 2009

Foreword, Deanna Coleman

North Carolina Central Law Review

No abstract provided.

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The Fair Sentencing Act: Exploring Solutions To Unintended Interpretations Of Law, Jessica Floyd Oct 2009

The Fair Sentencing Act: Exploring Solutions To Unintended Interpretations Of Law, Jessica Floyd

North Carolina Central Law Review

No abstract provided.

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Blurring The Lines: How State V. Bowden Accurately Interprets The Meaning Of Life Sentence, Sidney Minter Oct 2009

Blurring The Lines: How State V. Bowden Accurately Interprets The Meaning Of Life Sentence, Sidney Minter

North Carolina Central Law Review

No abstract provided.

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Privacy In The Age Of Tracking Technology: Why G.P.S. Technology Should Not Be Used To Track Process Servers, Talia E. Neri Oct 2009

Privacy In The Age Of Tracking Technology: Why G.P.S. Technology Should Not Be Used To Track Process Servers, Talia E. Neri

Cardozo Public Law, Policy & Ethics Journal

The article argues that the expansion of GPS technology in the process service industry and workplace surveillance raises significant Fourth Amendment concerns, as it erodes privacy expectations and creates a chilling effect on personal autonomy. While courts have upheld the use of GPS in certain employment contexts, the author contends that such surveillance often outweighs its benefits, particularly when less intrusive alternatives are available. The analysis critiques the legal standards governing surveillance, particularly the "readily available" standard from United States v. Kyllo, and advocates for a more balanced approach that prioritizes privacy protections.

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Understanding Pleading Doctrine, A. Benjamin Spencer Oct 2009

Understanding Pleading Doctrine, A. Benjamin Spencer

Faculty Publications

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

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Failure Of A "Basic Assumption": The Emerging Standard For Excuse Under Mae Provisions, Nathan Somogie Oct 2009

Failure Of A "Basic Assumption": The Emerging Standard For Excuse Under Mae Provisions, Nathan Somogie

Michigan Law Review

The onset of the current economic crisis has led many strategic and financial acquirers to reconsider the desirability of transactions to which they had previously agreed. Because many of these agreements contain substantial termination fees, buyers have increasingly sought to be excused from their contractual obligations by invoking Material Adverse Effect ("MAE") provisions. Reliance on MAE clauses as a basis for termination has historically been risky due to a lack of clarity in the case law regarding the standard for excuse under such provisions. A recent decision by the Delaware Chancery Court, Hexion v. Huntsman, the third in a …

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In With The New, Out With The Old: Expanding The Scope Of Retroactive Amelioration, S. David Mitchell Oct 2009

In With The New, Out With The Old: Expanding The Scope Of Retroactive Amelioration, S. David Mitchell

Faculty Publications

The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism. Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to …

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The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt Oct 2009

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

All Faculty Scholarship

Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …

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In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand Oct 2009

In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand

Scholarly Works

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …

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The Stockley Verdict: An Explainer, Chad Flanders Sep 2009

The Stockley Verdict: An Explainer, Chad Flanders

All Faculty Scholarship

The purpose o f this document is to help explain some o f the existing Missouri law that Judge Wilson used in his opinion. It does not take a side on the opinion itself. At the end o f the day, the decision Judge Wilson made was based on his call on various disputed factual questions. The law was not, for the most part, at issue. I attempt only to describe the legal framework within with Judge Wilson decided the case; not to support or to criticize his verdict. Each person will ultimately have to make his or her own …

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Supreme Court Of The United States, October Term 2009 Preview, Georgetown University Law Center, Supreme Court Institute, Amanda M. Boote Sep 2009

Supreme Court Of The United States, October Term 2009 Preview, Georgetown University Law Center, Supreme Court Institute, Amanda M. Boote

Supreme Court Overviews

No abstract provided.

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