Courts Commons^™

Toward A History Of Children As Witnesses, David S. Tanenhaus, William Bush

Scholarly Works

This brief essay offers a selective overview of recent trends in the historical scholarship on American childhood from the origins of the American Revolution to the early years of the Cold War. This overview of the literature has two purposes. First, it highlights recent socio-cultural scholarship that presents substantive challenges to the conventional ways of understanding the history of children and the law. Second, in so doing, it points out that legal histories concerned solely with doctrinal matters can, and often do, present a limited and distorted window into the past. Instead, the essay argues that the place of children, …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Scholarly Works

This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign …

Original Understanding And The Whether, Why, And How Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must …

The International Criminal Tribunal For Rwanda As The Theater: The Social Negotiation Of The Moral Authority Of International Law, Maya Steinitz

Faculty Scholarship

The international criminal courts (ICCs) - the ad hoc International Criminal Tribunals for the Former-Yugoslavia and for Rwanda, the recently-established permanent International Criminal Court, and hybrid internationalized tribunals such as the Special Court for Sierra Leone - are the international community's attempt to address the worst of the criminal manifestations of racism, nationalism and large-scale xenophobia. Based on five months of ethnographic research at the international criminal tribunal for Rwanda (ICTR), analyzed using Erving Goffman's dramaturgical framework, this article examines the means through which moral authority is constructed and communicated by the ICTR. Specifically, the article advances the argument that …

The Double Standard In Judicial Selection, Edwin Meese Iii

University of Richmond Law Review

No abstract provided.

The Mcmartin Preschool Abuse Trial, Douglas O. Linder

Faculty Works

The McMartin Preschool Abuse Trial, the longest and most expensive criminal trial in American history, should serve as a cautionary tale. When it was all over, the government had spent seven years and $15 million dollars investigating and prosecuting a case that led to no convictions. More seriously, the McMartin case left in its wake hundreds of emotionally damaged children, as well as ruined careers for members of the McMartin staff. No one paid a bigger price than Ray Buckey, one of the principal defendants in the case, who spent five years in jail awaiting trial for a crime (most …

A Necessary And Proper Role For Federal Courts In Prison Reform: The Benjamin V. Malcolm Consentdecrees, Harold Baer Jr., Arminda Bepko

NYLS Law Review

No abstract provided.

Reassessing The Purposes Of Federal Question Jurisdiction, John F. Preis

Law Faculty Publications

For ages, judges and legal academics have claimed that federal question jurisdiction has three purposes: to provide litigants with a judge experienced in federal law, to protect litigants from state court hostility toward federal claims, and to preserve uniformity in federal law. Because federal claims, for the most part, have always been cognizable in state courts, these purposes imply that state courts are less experienced, more hostile, and more likely to adjudicate federal law in ways that decrease the uniformity of federal law. Despite the ongoing allegiance to this conception of federal question jurisdictionand by implication, state court adjudication of …

"We Can't Tell Them Apart": When And How The Court Should Educate Jurors On The Potential Inaccuracies Of Cross-Racial Identifications, Aaron H. Chiu

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

No abstract provided.

Scholarly Discourse, Public Perceptions, And The Cementing Of Norms: The Case Of The Indian Supreme Court And A Plea For Research, Jayanth K. Krishnan

Articles by Maurer Faculty

For economic and nuclear reasons, India has received considerable attention over the last decade from observers in the United States. But attuned Americans are well-aware of India's rich culture and status as a shining constitutional democracy for most of its post-1947 independent history. For all that India has accomplished, however, its public has long viewed its government officials with great disdain. At the same time, a fascinating norm exists in this society which holds one institution in exceedingly high regard - the Indian Supreme Court.

In this article, I seek to examine what accounts for this counter-intuitive norm. As opposed …

Judicial Interference: Redefining The Role Of The Judiciary Within The Context Of U.S. And E.U. Merger Clearance Coordination, Yasmine B. Carson

Vanderbilt Journal of Transnational Law

In December 2003, Sony and Bertelsmann AG (BMG)sought approval from the Federal Trade Commission and European Commission to effectuate a joint venture between the two companies. Remarkably, almost two years after both antitrust authorities had cleared the Sony-BMG joint venture, the Court of First Instance annulled the European Commission's decision to approve the transaction. This groundbreaking decision by the Court of First Instance has the potential to undermine coordination efforts between antitrust authorities in the United States and the European Union, as well as to frustrate the predictability and efficiency that businesses need in merger regulation. Using the regulatory review …

The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett

Faculty Publications

This article looks back at the Senate confirmation hearing testimonies of five Supreme Court nominees. Following their appointments to the Court, these justices—Chief Justice Rehnquist and Associate Justices O'Connor, Scalia, Kennedy and Thomas—generally voted together in path-breaking federalism cases. They reinvigorated constitutional law limits or decreed new ones on national legislative power, supported the "sovereignty" of state governments, and thus came to be known in some circles as the Rehnquist Court's "Federalism Five." As nominees testifying before the Senate Judiciary Committee, however, these "federalism" justices did not announce, or for the most part even much hint at, what came to …

Judging International Judgments, Mark L. Movsesian

Faculty Publications

What effect should rulings of international courts have in domestic courts? In the U.S., debate has centered on a series of rulings by the International Court of Justice (ICJ) on the application of the Vienna Convention on Consular Relations (VCCR). The VCCR, a multilateral treaty that the United States ratified in 1969, grants foreign nationals the right to seek the assistance of their consulates in the event that local authorities arrest them. An Optional Protocol to the VCCR gives the ICJ jurisdiction over disputes relating to the interpretation and application of the treaty. Since the late 1990s, the ICJ repeatedly …

Non-Pecuniary Interests And The Injudicious Limits Of Appellate Standing In Bankruptcy, S. Todd Brown

Journal Articles

Standing to appeal bankruptcy court orders today is limited to those with a pecuniary interest. This prudential limitation is based on the person aggrieved requirement of Section 39(c) of the Bankruptcy Act of 1898 - a requirement that was not included in the Bankruptcy Code. This article examines the extensive differences between the Act and the Code, the potential justifications for extending the pecuniary interest test in spite of the omission of the person aggrieved requirement, and the potential ramifications for parties and the integrity of the bankruptcy process. This analysis suggests that standing to appeal bankruptcy orders should be …

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Promissory Estoppel: The Life History Of An Ideal Legal Transplant, Joel M. Ngugi

University of Richmond Law Review

This article hopes to accomplish three things. First, it will revisit the historical origins of the doctrine of promissory estoppel in the American law of contracts and the role that Samuel Williston, the Chief Reporter of the Restatement (First) of Contracts ("First Restatement") played in the evolution of the doctrine. The dominant theory is that Williston conceptualized the new promissory estoppel doctrine in a way that retarded and blunted the doctrine shortly after its birth. This theory is adhered to by both critics and proponents of the expansion of promissory estoppel as a ground of promissory obligation. According to both …

Do You See What I See - Reflections On How Bias Infiltrates The New York City Family Court - The Case Of The Court Ordered Investigation, Leah A. Hill

Faculty Scholarship

That the Family Court is ill-equipped to address the needs of the hundreds of thousands of cases handled therein is not news. Exploding caseloads, complex problems, and minimal resources are just a few of the ingredients that combine to undermine the Court's ability to fulfill its promise. What has been given less attention until very recently is the extent to which the Family Court's failures disproportionately impact low-income families of color. Any analysis of the Court's impact or efficacy must consider the context I have described in my observations of the Court- the images of black and brown litigants hurrying …

Deliberation And Dissent: 12 Angry Men Versus The Empirical Reality Of Juries, Valerie P. Hans

Cornell Law Faculty Publications

This article contrasts the cinematic portrayal of jury deliberation in 12 Angry Men with an empirical portrait of real world juries derived from fifty years of jury research. The messages of this iconic movie converge with the findings of research studies in some surprising ways. During the course of the movie's deliberation, the different perspectives of the movie's jurors emerge as important contributors to the jury's fact finding, reinforcing the empirical finding that diversity among jurors produces robust deliberation and superior decision making. 12 Angry Men also illustrates both the importance of majority opinions and the power of dissenters under …

El Desarrollo Del Arbitraje Comercial Internacional: Sofisticacion O Complejdad, Horacio A. Grigera Naón

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Role Of Judicial Independence, Brian K. Landsberg

McGeorge School of Law Scholarly Articles

No abstract provided.

What's On Your Mind? Imputing Motive In A Title Vii Case, An Analysis Of Bci Coca-Cola Bottling Co. V. Eeoc, Barbara J. Fick

Journal Articles

This article examines the case E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, which was scheduled for argument before the Supreme Court, but was dismissed before that argument occurred.

Creating The Right Mentality: Dealing With The Problem Of Juror Delinquency In The New South Korean Lay Participation System, Eric Seo

Vanderbilt Journal of Transnational Law

The Judiciary Reform Committee of South Korea has planned to implement a five year pilot program that will allow public participation in trials. This will be the first time in the nation's judicial history that lay participation will be used. The format of the pilot program will be a mixture of the U.S.-style jury system and the German lay assessor system, with the program being more akin to the U.S. system. As South Korea has never had a lay participation system, it has a unique opportunity to create a system that will avoid problems associated with lay participation. This Note …

The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia Jr.

Journal Articles

Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …

Afterthoughts From A "Buzz Killer", Sarah Krakoff

Publications

No abstract provided.

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

The D'Oh! Of Popular Constiutitonalism, Neal Devins

Faculty Publications

No abstract provided.

The Judicial Treatment Of Noneconomic Compensatory Damages In The 19th Century, Ronald J. Allen, Alexia Brunet

Publications

Do high verdicts for tort cases containing noneconomic damages have historical precedent? We present the results of our empirical inquiry into the treatment of noneconomic compensatory damages by the courts from 1800-1900. Using 1,175 tort cases from this era, we show that, notwithstanding constant reiteration of jury discretion over damages, courts tightly controlled awards. In fact, no case prior to 1900 permitted a noneconomic compensatory damages award exceeding $450,000 in current dollars. Logistic regression results reveal that an increase in total monetary damages is positively and significantly related to the probability of reversal when noneconomic damages were claimed, and that …

Constitutional Avoidance And The Roberts Court, Neal Devins

Faculty Publications

No abstract provided.

Federalism Doctrines And Abortion Cases: A Response To Professor Fallon, Anthony J. Bellia Jr.

Journal Articles

This Essay is a response to Professor Richard Fallon's article, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World. In that article, Professor Fallon argues that if the Supreme Court were to overrule Roe v. Wade, courts might well remain in the abortion-umpiring business. This Essay proposes a refinement on that analysis. It argues that in a post-Roe world courts would not necessarily subject questions involving abortion to the same kind of constitutional analysis in which the Court has engaged in Roe and its progeny, that is, balancing a state's interest in protecting life against a pregnant …

Secondhand Smoke Signals From Prison, Scott C. Wilcox

Michigan Law Review

This Note argues that courts should acknowledge current societal and medical perspectives on second hand smoke (SHS) and afford real protection to prisoners against SHS through injunctive relief. Part I examines evidence that conclusively demonstrates the serious risk of harm posed by SHS to the health of inmates. It reports that inmates' long-term exposure to SHS increases their risk of contracting lung cancer, heart disease, and other potentially life threatening conditions. Part II argues that, as required by the Helling standard, contemporary society does not tolerate involuntary, long-term exposure to SHS and that prison officials exhibit deliberate indifference by allowing …