Courts Commons^™

Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman

Articles

So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

The Puzzle Of Complete Preemption, Gil Seinfeld

Articles

Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the …

China's Courts: Restricted Reform, Benjamin L. Liebman

Faculty Scholarship

Recent developments in China’s courts reflect a paradox largely avoided in literature on the subject: Can China’s courts play an effective role in a non-democratic governmental system? Changes to courts’ formal authority have been limited, courts still struggle to address basic impediments to serving as fair adjudicators of disputes, and courts continue to be subject to Communist Party oversight. Courts have also confronted new challenges, in particular pressure from media reports and popular protests. At the same time, however, the Party-state has permitted, and at times encouraged, both significant ground-up development of the courts and expanded use of the courts …

A Marriage Of Convenience? A Comment On The Protection Of Databases, Jane C. Ginsburg

Faculty Scholarship

Daniel Gervais concluded his analysis of the protection of databases with three options for the future. I would like to examine a fourth. Let us assume no future flurry of national or supranational legislative activity because the content of databases is in fact already being protected. Not through copyright or sui generis rights, but through other means. Databases are an object of economic value, and they will conveniently wed whatever legal theory or theories will achieve the practical objective of preventing unauthorized exploitation of the works' contents. To beat the marriage metaphor into the ground, I'd like to suggest that, …

Who Knew - The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan Vacca, Mark G. Boyko

Faculty Publications

Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff's injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where …

Corporate Responsibility: The Case Of Big Tobacco, Aaron Barlow

Publications and Research

Barlow recounts his experience on a jury on a major case relating to the tobacco industry.

Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts

Articles

This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …

Affirmative Inaction, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Perhaps the most exasperating aspect of racial discrimination in the United States is the self-righteous manner in which it is practiced. After a history of facilitating white exploitation of minority interests, the Supreme Court intimated in Grutter v. Bollinger that time was running out for racial minorities to take advantage of the opportunities for equality that the culture has offered in the form of affirmative action. Justice O'Connor's majority opinion seemed to say that in another twenty-five years, the Court would cease to tolerate such special favors for racial minorities, thereby leaving minorities only a limited amount of time remaining …

Deliberative Dilemmas: A Critique Of Deliberation Day From The Perspective Of Election Law, Chad Flanders

All Faculty Scholarship

My paper deals with two subject areas - deliberative democracy theory and election law - that have had surprisingly little contact with another. My paper tries to remedy this lacuna by looking at how the two fields intersect and can contribute to the understanding of one another. In particular, I look in detail at a particularly prominent proposal by two political theorists, Bruce Ackerman and James Fishkin's Deliberation Day, and how the aims of that proposal might be frustrated by the present structure of American election law. I argue that because they fail to take into account certain structural features …

Courts As Catalysts: Re-Thinking The Judicial Role In New Governance, Joanne Scott, Susan P. Sturm

Faculty Scholarship

This Article offers a step forward in developing a theory of judicial role within new governance, drawing on the emerging practice in both the United States and Europe as a basis for this reconceptualization. The traditional conception of the role of the judiciary – as norm elaborators and enforcers – is both descriptively and normatively incomplete, and thus needs to be rethought. There is a significant but limited role for courts as catalysts. In areas of normative uncertainty or complexity, courts prompt and create occasions for normatively motivated and accountable inquiry and remediation by actors involved in new governance processes. …

Jurisdiction, Merits, And Substantiality, Howard M. Wasserman

Faculty Publications

No abstract provided.

Eliminating The Judicial Function In Consumer Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

The centerpiece of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 has been the means test, a formulaic statutory directive pursuant to which courts are to presume abuse of the bankruptcy system by Chapter 7 debtors who have an ability to repay past debts with future income. This Essay provides a new insight into means testing by arguing that, more than anything else, it has brought about a significant change in the institutional design of bankruptcy courts: namely, the increased blurring of administrative and judicial functions. The Essay concludes that this development should be cause for concern as …

Clerks, Peter B. Rutledge

Scholarly Works

Book Review of Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court, Artemus Ward and David L. Weiden. NYU, 2006. Pp xiv, 337. and Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, Todd C. Peppers. Stanford, 2006. Pp xv, 301

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

No abstract provided.

Reassessing Damages In Securities Fraud Class Actions, Elizabeth Chamblee Burch

Scholarly Works

No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.

In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …

Eliminating Fear Through Recreating Community In Rwanda: The Role Of The Gacaca Courts, Christine M. Venter

Journal Articles

This article describes the institution of the Gacaca Courts in Rwanda, which were set up to try people charged with participating in the 1994 Rwandan genocide. The author examines the options available to the Rwandan government in seeding to prosecute people charged with crimes related to the genocide, and concludes that, while flawed, the gacaca courts were the best option available. The article explores how the courts were developed based on the participatory and restorative ideals of African indigenous legal systems, and how these courts provide an opportunity for some form of "truth telling" in post-genocide Rwanda.

Lower Court Discretion, Pauline Kim

Scholarship@WashULaw

Empirical scholars typically model the judicial hierarchy in terms of a principal-agent relationship in which the Supreme Court, the principal, sets policy and the lower federal courts, as agents, must implement that policy faithfully. The law is a signal - the means by which the Court communicates its preferences. This article argues instead for recognizing the law as an independent normative force. Empirical scholars fail to take seriously the role of law because they reject as implausible formalistic accounts of its operation. This article advances a more nuanced account of how law shapes the decision-making environment, one that focuses on …

The Scientific Study Of Judicial Activism, Stefanie A. Lindquist, Frank B. Cross

Scholarship@WashULaw

Claims of judicial activism are common, from both the right and the left, but they are seldom scrutinized closely. Prior tests of judicial activism have involved simply counting the number of cases in which justices vote to invalidate statutes. This data provides a rough guide but omits any consideration of the judicial legitimacy of the statute - a decision to strike down a plainly unconstitutional statute is appropriate judicial behavior. To provide a better test, we adjust the count of statutory invalidations for each justice of the Burger Court, based upon the degree to which the votes show a consistent …

A System Of Wholesale Denial Of Rights, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Charter Dialogue Revisited: Or "Much Ado About Metaphors", Peter W. Hogg, Allison A. Bushell Thornton, Wade K. Wright

Osgoode Hall Law Journal

This article is a sequel to the 1997 article "The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn't Such A Bad Thing After All)." In the present article, the authors review various academic critiques of their "dialogue" theory, which postulates that Charter decisions striking down laws are not the last word, but rather the beginning of a "dialogue," because legislative bodies are generally able to (and generally do) enact sequel legislation that accomplishes the main objective of the unconstitutional law. The authors also examine the Supreme Court of Canada's dicta on the "dialogue" phenomenon, and …

Precedent Unbound? Contemporary Approaches To Precedent In Canada, Debra Parkes

All Faculty Publications

This paper examines some key aspects of the contemporary treatment of precedent in Canada, including consideration of the vertical convention of precedent (lower courts being bound by decisions of higher courts) and the horizontal convention of precedent (courts being willing and/or able to overrule or depart from decisions of the same court). On the latter topic of horizontal precedent, particular attention will be paid to three recent decisions of the Supreme Court of Canada, Ontario Court of Appeal, and Manitoba Court of Appeal respectively, which take a more functional and pragmatic approach to the issue and demonstrate a greater willingness …

Challenging The Assumption Of Equality: The Due Process Rights Of Foreign Litigants In U.S. Courts (Panel), Austen L. Parrish, Paul R. Dubinsky

Articles by Maurer Faculty

No abstract provided.

Political Institutions, Judicial Review, And Private Property: A Comparative Institutional Analysis, Daniel H. Cole

Articles by Maurer Faculty

Since Madison, jurists of all ideological stripes have more or less casually presumed that constitutional judicial review is absolutely necessary to protect private property rights against over-regulation by political bodies. During the twentieth century, this presumption led directly to the institution of regulatory takings doctrine.

Recently, the economist William Fischel and the legal scholar Neil Komesar have raised important questions about, respectively, the utility and the sufficiency of constitutional judicial review for protecting private property. This article supports their arguments with theoretical and historical evidence that constitutional judicial review (1) is not strictly necessary for protecting private property rights, and …

The Aggregate Harmony Metric And A Statistical And Visual Contextualization Of The Rehnquist Court: 50 Years Of Data, Peter A. Hook

Articles by Maurer Faculty

This article contains aggregated data from fifty years of the annual matrixes of justice inter-agreement for particular Supreme Court terms published by the Harvard Law Review (1956 to 2005 terms). Aggregating how often any two justices sided together on cases for a particular term relative to the amount of cases the two justices heard together allows one to derive a measure of the particular term that reflects the relative amount of agreement or disagreement for the term. This new metric, called the Aggregate Harmony Metric, allows for comparative benchmarks. For instance, the 2005 term, with an aggregate agreement of 70%, …

Are Senior Judges Unconstitutional?, Ryan W. Scott, David R. Stras

Articles by Maurer Faculty

With burgeoning caseloads and persistent vacancies in many federal courts, senior judges play a vital role in the continued well-being of our federal judiciary. Despite the importance of their participation in the judicial process, however, senior judges raise a host of constitutional concerns that have escaped the notice of scholars and courts. Many of the problems originate with recent changes to the statute authorizing federal judges to elect senior status, including a 1989 law that permits senior judges to fulfill their statutory responsibilities by performing entirely nonjudicial work. Others arise from the ambiguity of the statutory scheme itself, which seems …

An Empirical Analysis Of Life Tenure: A Response To Professors Calabresi And Lindgren, Ryan W. Scott, David R. Stras

Articles by Maurer Faculty

Opposition to life tenure has been steadily mounting in the legal academy and Professors Steve Calabresi and Jim Lindgren are among those leading the charge. Crucial to their argument that life tenure is fundamentally flawed is an empirical claim that the increases in average tenure among Supreme Court Justices are both dramatic and unprecedented.

In this article, the authors respond to Calabresi and Lindgren by showing that their hypothesis of dramatic and unprecedented growth in average tenure has two fundamental flaws. First, it suffers from a period-selection problem. Rendering the data using longer or shorter periods blunts or eliminates the …

Battle Of The Branches: The Separation Of Powers Doctrine In State Education Funding Suits, Sarah Seo

Faculty Scholarship

What is the scope of judicial power to enforce positive rights, such as the right to education? This Note analyzes litigation outcomes in state education finance lawsuits to examine how state courts exercise their authority within the limits of the separation of powers doctrine. The Note argues that practical, non-legal factors play an important role in a judge's decision to grant remedies addressing unconstitutional legislative inaction to provide an adequate public education. In conclusion, the Note discusses the efficacy of education litigation in light of the judicial s jurisdictional limits, as well as the realities of state politics.

A Critical Assessment Of The Cultural And Institutional Roles Of Appellate Courts (Review Essay), Paul D. Carrington

Faculty Scholarship

Reviewing, Daniel Meador et al., Appellate Courts: Structures, Functions, Processes, and Personnel (2d ed. 2006)