Courts Commons^™

Judicial Independence In Excess: Reviving The Judicial Duty Of The Supreme Court, Paul D. Carrington, Roger C. Cramton

Cornell Law Faculty Publications

Independence from extrinsic influence is, we know, indispensable to public trust in the integrity of professional judges who share the duty to decide cases according to preexisting law. But such independence is less appropriate for those expected to make new law to govern future events. Indeed, in a democratic government those who make new law are expected to be accountable to their constituents, not independent of their interests and unresponsive to their desires. The Supreme Court of the United States has in the last century largely forsaken responsibility for the homely task of deciding cases in accord with preexisting law …

Neglected Justices: Discounting For History, G. Edward White

Vanderbilt Law Review

The category of "neglected Justices" presupposes meaningful baselines for evaluating judicial reputations. A Justice cannot be deemed "neglected" except against the backdrop of some purported consensus about that Justice's reputation and the reputations of other Justices. Moreover, when the category of "neglected Justices" encompasses the performance of Justices who served in different time periods, it also presupposes that evaluative baselines for Justices can retain their integrity in the face of historical change and historical contingency.

This Article argues that when one discounts for history in the process of evaluating judicial reputations, the effects of history are sufficiently powerful to throw …

The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year

This Article …

The Supreme Court's Controversial Gvrs - And An Alternative, Aaron-Andrew P. Bruhl

Michigan Law Review

This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year. This Article …

Causation Or Correlation? The Impact Of Lulac V. Clements On Section 2 Lawsuits In The Fifth Circuit, Elizabeth M. Ryan

Michigan Law Review

Under section 2 of the Voting Rights Act, illegal vote dilution exists when an electoral standard, practice, or procedure results in a denial or abridgement of the right to vote on account of race or color Plaintiffs demonstrate vote dilution by introducing evidence regarding a variety of objective factors, including whether voting in the jurisdiction in question is polarized along racial lines. In 1993, the Fifth Circuit adopted a new standard for section 2 plaintiffs trying to prove racially polarized voting. The Fifth Circuit held that demonstrating a mere correlation between race and vote was insufficient to establish racially polarized …

Should Brian Nichols Be Tried In A Federal Court?, Ronald Carlson, Donald E. Wilkes

Popular Media

Although Brian Nichols has been sentenced in state court to a total of 485 years of imprisonment, the question has been raised whether he should subsequently be tried in federal court for the murder of an off-duty U.S. Customs agent. Prof. Carlson argues in the affirmative, while Prof. Wilkes finds the suggestion "stupendously stupid."

Plaintiphobia In State Courts? An Empirical Study Of State Court Trials On Appeal, Theodore Eisenberg, Michael Heise

Cornell Law Faculty Publications

Prior federal civil appellate studies show that appeals courts overturn jury verdicts more than bench decisions and that defendants fare better than plaintiffs on appeal. Attitudinal and selection effect hypotheses may explain the appellate court tilt favoring defendants. This study presents the first statistical models of the appeals process for a comprehensive set of state court civil trials to test theories on appellate outcomes. Using data from 46 large counties on 8,038 trials and 549 concluded appeals, we find that appellate reversal rates for jury trials and defendant appeals exceed reversal rates for bench trials and plaintiff appeals. The reversal …

A Circumspect Look At Problem-Solving Courts, Richard C. Boldt

Faculty Scholarship

No abstract provided.

Isaiah And His Young Disciples: Justice Brandeis And His Law Clerks, Todd C. Peppers

Scholarly Articles

It cannot be said that Louis Dembitz Brandeis has suffered from a lack of scholarly attention. Brandeis is considered to be one of the most influential Justices in the history of the U.S. Supreme Court, and scores of books and law-review articles have been written about Brandeis the lawyer, the political insider, the Zionist, and the Justice. A case can be made, however, that history has not fully recognized the important and lasting contribution that Brandeis made to the development of the institutional rules and norms surrounding the Supreme Court law clerk, an oversight that this essay seeks to rectify.

The Role Of Courts Vis-À-Vis Legislatures In The Same-Sex Marriage Context: Sexual Orientation As A Suspect Classification, Ingrid M. Lofgren

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Terrorism, Containment And International Law, Ian Shapiro

Other Lectures and Presentations

Prof. Ian Shapiro in a noontime lecture discusses recent developments in dealing with terrorism.

The Decline And Fall Of The American Judicial Opinion, Part I: Back To The Future From The Roberts Court To Learned Hand - Context And Congruence, Jeffrey A. Van Detta

Barry Law Review

No abstract provided.

The European Court’S Political Power Across Time And Space, Karen Alter

Faculty Working Papers

This article extracts from Alter's larger body of work insights on how the political and social context shapes the ECJ's political power and influence. Part I considers how the political context facilitated the constitutionalization of the European legal system. Part II considers how the political context helps determine where and when the current ECJ influences European politics. Part III draws lessons from the ECJ's experience, speculating on how the European context in specific allowed the ECJ to become such an exceptional international court. Part IV lays out a research agenda to investigate the larger question of how social support shapes …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …

A Critical Guide To The Iraqi High Tribunal's Anfal Judgement: Genocide Against The Kurds, Jennifer Trahan

Michigan Journal of International Law

In the Anfal trial, the Iraqi High Tribunal (IHT or the Tribunal) in Baghdad convicted former Iraqi high officials of genocide, crimes against humanity, and war crimes. Unlike its predecessor-the Dujail trial-the Anfal trial included the presentation of a high volume of documentary and eye-witness evidence. This evidence clearly revealed the existence of a genocidal campaign by the former Iraqi government and military that eliminated an estimated 182,000 Iraqi Kurds in 1988, as part of the eight-phased "Anfal campaign" (the Anfal). Relying on this and other evidence, judges in the Anfal Trial Chamber explained fairly persuasively how genocide, crimes against …

Volume 76 (2008-2009)

Tennessee Law Review

No abstract provided.

Case Interpretation, Shawn J. Bayern

Scholarly Publications

This Article develops an approach to constructing the meaning of prior court cases that is more helpful than formalistic, conventional distinctions between concepts like "holdings" and "dicta." Instead of trying to classify judicial announcements into fixed categories, courts should engage in a broader interpretive inquiry when confronting prior cases. Determining what a judicial opinion stands for requires determining the intent that motivated the opinion, as carefully understood in light of the factual and argumentative context that gave rise to it.

Under this view of precedent, binding common law arises in large part from principles explicated after considering facts. Viewing precedent …

Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray

Michigan Telecommunications & Technology Law Review

If a generic manufacturer does not have control over its safety warnings, can it comply with the obligations posed by state tort liability? State failure-to-warn actions evaluate whether a product manufacturer has met its obligation to warn consumers about known dangers associated with its product. In essence, if a manufacturer knows about a potentially dangerous outcome, it has a duty to warn its consumers. If the generic manufacturer can comply with a state duty to warn only by changing a label that the FDA will not allow it to change, it becomes impossible for the corporation to meet both requirements. …

Peering Into The Judicial Magic Eight Ball: Arbitrary Decisions In The Area Of Juror Removal, 42 J. Marshall L. Rev. 813 (2009), Kimberly Wise

UIC Law Review

No abstract provided.

Four Opinions By Chief Judge Markey On Limiting Patent Enforcement, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 34 (2009), Joseph R. Re

UIC Review of Intellectual Property Law

Many commentators have characterized Judge Markey and the United States Court of Appeals for the Federal Circuit as being biased in favor of patent holders. These four opinions exemplify Judge Markey’s support of a strong patent system, a system that must include strong defenses against parties that have either wrongly obtained or misused patent rights.

Murky Water: What Really Is Taxed As Court Costs In North Carolina?, James Edwin Griffin Iii

Campbell Law Review

What is taxed as court costs? A question so seemingly simple would rightfully lead one to believe it held an answer just as basic. Black's Law Dictionary defines the term as "[tihe charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees," a definition which does nothing to resolve the uncertainty surrounding the topic, especially in the State of North Carolina. The statutes involved appear straightforward, and the use of common principles of statutory interpretation indicate that the "answer" is clear as well-one which would not only clarify the law but also …

"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker

Articles & Book Chapters

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a …

When The Music Stops, Why Not Require Certain Title Vii Plaintiffs To Find A Chair On Which To Rest Their Complaint?, 42 J. Marshall L. Rev. 505 (2009), Catherine R. Caifano

UIC Law Review

No abstract provided.

Is The Door Open Or Closed? Evaluating The Future Of The Federal Medical Peer-Review Privilege, 42 J. Marshall L. Rev. 561 (2009), Ghazal Sharifi

UIC Law Review

No abstract provided.

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, 42 J. Marshall L. Rev. 463 (2009), Mark J. Sundahl

UIC Law Review

No abstract provided.

The Irs's Flawed Solution To The Controversy Over Deductible Claims Against The Estate And The Necessity For A Date-Of-Death Standard, 42 J. Marshall L. Rev. 789 (2009), Lisa K. Johnson

UIC Law Review

No abstract provided.

Two Decades After Beech: Confusion Over The Admissibility Of Expert Opinions In Public Records, 42 J. Marshall L. Rev. 925 (2009), Thomas J. Mccarthy, John M. Power

UIC Law Review

No abstract provided.

Redefining Disposable Income In Chapter 13 Plans: Moving Forward Into A "New Era In The History Of Bankruptcy Law", 42 J. Marshall L. Rev. 1107 (2009), Lauren Sylvester

UIC Law Review

No abstract provided.