Courts Commons^™

A Symposium Précis, Thomas E. Baker

Faculty Publications

This article is an introduction and overview of the Drake University Law School symposium Judicious Choices: Nominating and Confirming Supreme Court Justices held in March of 2002. It identifies important constitutional law issues in nominating and confirming the President's appointments to Supreme Court Justices in the United States.

A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker

Faculty Publications

Transcript of a discussion regarding the United States Supreme Court, the Supreme Court justices and justice nominees, the Senate process for confirming nominees and related issues such as fitness to serve on the court and judicial activism.

Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles

Faculty Scholarship

Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as …

Baker's Promise, Equal Protection, And The Modern Redistricting Revolution: A Plea For Rationality, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The conventional wisdom contends that Baker v. Carr did not set down a standard for lower courts to follow. This Article responds to this position. It reaches three conclusions. First, it argues the implicit promise of Baker v. Carr pointed toward a loose, flexible rationality standard for deciding redistricting controversies. Under this approach, states were given much room to enact redistricting plans in accordance to their states' particular needs. Second, the lower courts applied precisely this standard in litigation in the wake of Baker, and did so quite capably. This conclusion responds to those who exhort the imposition of a …

Adding Value To Families: The Potential Of Model Family Courts, Jane M. Spinak

Faculty Scholarship

The Harlem Community Justice Center (Justice Center) officially opened in July 2000 with all the fanfare of a major civic event. The Chief Judge of the State of New York, Judith Kaye, and the Mayor of the City of New York, Rudolph Guiliani, were keynote speakers, lauding the combined efforts of private administrators and public officials in reopening a deteriorating but magnificent 1892 court building in the center of Harlem. The ceremony began and ended with gospel sung by the Addicts Rehabilitation Center Choir, a musical reflection of one component of the Justice Center's jurisdiction. The new Juvenile Intervention Court …

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …

A Common Private Law For Europe, Alan Watson

Scholarly Works

A satisfactory private law for Europe is not primarily to be sought for in the most common solutions, themselves the result of borrowing. Nor in established rules, themselves the result of longevity, and lack of governmental incentive in innovating. Nor should it be sought in intermediate positions of various mixed systems, themselves the results of the features just above described. Rather it is to be found in the need for authority. This means that a common law for Europe requires the acceptance of a uniform system of adjudicating differences within a standard framework of the necessary sources of law. Authority …

The Bush Administration And Appeals Court Nominees, Carl Tobias

William & Mary Bill of Rights Journal

No abstract provided.

The "Blue Slip": Enforcing The Norms Of The Judicial Confirmation Process, Brannon P. Denning

William & Mary Bill of Rights Journal

No abstract provided.

Introduction To The Symposium: The Judicial Process Appointments Process, Carly Van Orman

William & Mary Bill of Rights Journal

No abstract provided.

Comparing Judicial Selection Systems, Lee Epstein, Jack C. Knight, Olga Shvetsova

William & Mary Bill of Rights Journal

No abstract provided.

The Aba's Role In Prescreening Federal Judicial Candidates: Are We Ready To Give Up On The Lawyers?, Laura E. Little

William & Mary Bill of Rights Journal

No abstract provided.

The Questioning Of Lower Federal Court Nominees At Senate Confirmation Hearings, William Ross

William & Mary Bill of Rights Journal

No abstract provided.

Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy

Law Faculty Scholarly Articles

Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia is now …

Swallowing The Apple Whole: Improper Patent Use By Local Rule, Ellisen S. Turner

Michigan Law Review

During patent infringement litigation, the Federal Rules of Civil Procedure ("FRCP") and the federal district court's local rules govern the parties' pretrial discovery and motion practice. The U.S. District Court for the Northern District of California has adopted the most comprehensive local rules to date covering pretrial procedures in the patent litigation context. The Northern District of California Patent Local Rules ("Local Rules") may come to have a significant impact throughout the federal courts, as it appears that other jurisdictions and commentators are looking to the Local Rules for guidance. For instance, the American Bar Association Section of Intellectual Property …

The Courtroom Technology Wars Are Here!, Fredric I. Lederer

Popular Media

No abstract provided.

The Pathological Politics Of Criminal Law, William J. Stuntz

Michigan Law Review

Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …

Brief Of The Becket Fund For Religious Liberty As Amicus Curiae In Support Of Petitioners, Richard W. Garnett, Kevin J. Hasson, Eric W. Treene, Roman P. Storzer, Anthony R. Picarello Jr.

Court Briefs

Nos. 00-1751, 00-1777, 00-1779
Susan Tave Zelman v. Doris Simmons-Harris

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Summary of the Argument

Petitioners and other amici undoubtedly will address fully how the program at issue in this case should be upheld on the grounds that it involves the same principle that led to this Court upholding the aid in Mueller v. Allen, 463 U.S. 388 (1983), Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 (1986), and Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. …

The Competency Conundrum: Problems Courts Have Faced In Applying Different Standards For Competency To Be Executed, John L. Farringer, Iv

Vanderbilt Law Review

Throughout Anglo-American legal history, there has been a general agreement, based on numerous rationales, that mentally incompetent inmates should not be executed for their crimes. The recurring problem, however, is how to define "incompetence" or "insanity." Legislatures and courts have sought to provide a common- sense definition, but in practice judges must confront highly technical terminology from the ever evolving field of psychiatry. Additionally, the definition must be flexible enough to apply to a variety of cases, while being universal enough to assure that all defendants are treated fairly and equally.

At hearings to determine a prisoner's competency to be …

A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis

Michigan Law Review

When hunted, the ostrich is said to run a certain distance and then thrust its head into the sand, thinking, because it cannot see, that it cannot be seen by the hunters. Legal parlance therefore refers to the "ostrich instruction," used when a defendant acts with the awareness of a high probability of the existence of an incriminating fact, but remains deliberately ignorant as to whether the fact actually exists, hoping his ignorance will maintain his innocence. The defendant is like the ostrich - he thinks that if he does not actually see the facts, even though he knows they …

Application Of The Rational Basis Test To Treaty-Implementing Legislation: The Need For A More Stringent Standard Of Review, Virginia H. Johnson

Cardozo Law Review

No abstract provided.

Now You See It, Now You Don't: Depublication And Nonpublication Of Opinions Raise Motive Questions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The basis for these comments is a decision last year by the Eighth Circuit Court of Appeals in Anastasoff v. United States. The court held that an Eighth Circuit local rule, which authorized nonpublication of opinions and explicitly stated that unpublished opinions were to have no precedential effect, was unconstitutional. The panel, in an opinion by Judge Richard S. Arnold, reasoned that a court rule purporting to confer upon appellate judges an absolute power to decide which decisions would be binding and which would not be binding went well beyond the “judicial power” within the meaning of Article III of …

"Be Careful What You Ask For": The 2000 Presidential Election, The U.S. Supreme Court, And The Law Of Criminal Procedure, Craig M. Bradley, Joseph L. Hoffmann

Indiana Law Journal

No abstract provided.

An Update On The Ninth Circuit Debate, Carl Tobias

The Journal of Appellate Practice and Process

The Commission on Structural Alternatives for the Federal Courts of Appeals suggested in its final report a division of the Ninth Circuit. Congress presented many bills that would carry out the commission's suggestion. These events may have a significant effect on the future of the federal appellate courts.

The Politics Of Bush V. Gore, Evan Tsen Lee

The Journal of Appellate Practice and Process

Critical Legal Studies ("the Crits") burst onto the law school scene in the mid-1970s. The Crits believe that "all law is politics." The Crits lost their momentum by the 1990s. The case Bush v. Gore has forced many to believe that all law is in fact politics.

Coping With Disaster, Judith S. Kaye

The Journal of Appellate Practice and Process

This essay is the text of the keynote address given at the National Appellate Bench/Bar Conference and Colloquy on October 5, 2001. The New York court system was wounded during the September 11 attacks. One court was situated inside the World Trade Center and the other busy Manhattan courts were inaccessible. Reviving the Manhattan courts was a feat that no one was prepared for but was eagerly taken on.

Felons, Firearms, And Federalism: Reconsidering Scarborough In Light Of Lopez, Brent E. Newton

The Journal of Appellate Practice and Process

The application of the federal prohibition of felons possessing firearms is a stretch of the Commerce Clause. Most cases involve a felon who merely happened to be in possession of a firearm. The only relationship to interstate commerce in these cases is that the firearms found were usually manufactured in another state. The application of this prohibition leaves the future of federalism in question.

Violence And The Truth, Joseph L. Hoffmann

Indiana Law Journal

Harry Pratter Professorship Lecture, Indiana University School of Law, Bloomington, Indiana

Protecting Our Mentally Ill: A Critique Of The Role Of Indiana State Courts In Protecting Involuntarily Committed Mental Patients' Right To Refuse Medication, Michael Leonard Goff Jr.

Indiana Law Journal

No abstract provided.

Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff

Cornell Law Faculty Publications

The political process theory introduced by the Carolene Products footnote and developed through subsequent scholarship has shaped much of the modern constitutional landscape. Process theory posits that courts may justifiably intervene in the political arena when institutional obstacles impede corrective action by political actors themselves. Judged by this standard, the United States Supreme Court's decision in Bush v. Gore was a failure, because the majority could not explain why its interference was necessary. More broadly, Bush v. Gore points to a central deficiency in process theory: it relies upon the Justices to guard against their own overreaching, but does not …