Jurisprudence Commons^™

In The Interest Of The Client: Why Reform Of Texas's Rules Regarding Referral Fees Is Necessary., Samuel V. Houston Iii

St. Mary's Law Journal

Texas needs to reform its policy concerning referral fees. In Texas, an attorney is permitted to receive a fee for providing a referral to another attorney. In Brewer & Pritchard, P.C. v. Johnson, for example, the forwarding attorney received a referral fee for $3 million dollars. Proponents of referral fees argue that clients are better represented because referring attorneys have a greater economic incentive to seek out more capable attorneys. On the other hand, referring attorneys may also have the incentive to seek out attorneys who pay higher referral fees rather than those most qualified. In the end, the referred …

Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel

Scholarly Works

Insurance law scholars and teachers sometimes feel, with a mixture of paranoia and justification, that insurance law simply does not receive its proper respect in the hierarchy of legal education and law generally.

Consider the law school curriculum. In none of America’s nearly 200 ABA-approved law schools in insurance law a required course. Nor is it considered a course that, although not required, prudent students “must” be sure to take before they graduate (e.g. Evidence, Corporations). Enrollments may be respectable but the class is seldom oversubscribed, even where the law school is located in an insurance hub city. Although other …

Euclid Lives: The Survival Of Progressive Jurisprudence, Michael Allan Wolf, Charles M. Haar

Law Faculty Publications

The Supreme Court's expanded use of regulatory takings is making a highly controversial and confusing concept more difficult to apply and defend. The Court and commentators are invited to explore a different approach - Progressive jurisprudence, as represented by the Court's enduring opinion in Village of Euclid v. Ambler Realty Co. This Commentary examines the reinvigoration of the Takings Clause and, in historical and ideological terms, discusses the Progressiveness of Euclid and of the regulatory scheme the Euclid Court approved. Professors Haar and Wolf identify and explore five inquiries concerning the character of regulations affecting the use, ownership, and value …

Twenty Years Of Labour Law And The Charter, Dianne Pothier

Dianne Pothier Collection

This article critically reviews the Charter jurisprudence of the Supreme Court of Canada relating to labour law. The rejection of the right to strike and to bargain collectively as part of freedom of association reflect substantial judicial deference to legislative policy choices. Recently, however, a constitutional right of unfair labour protection for particularly vulnerable workers shows some judicial willingness to intervene. While freedom of expression provides significant scope to union supporters, picketing and leafleting are still subject to wide restraint, the exact parameters of which remain unclear. The Charter has had only a modest effect on labour law. Even successful …

African Courts, International Law, And Comparative Case Law: Chimera Or Emerging Human Rights Jurisprudence?, Mirna E. Adjami

Michigan Journal of International Law

Though the potential creation of a supranational human rights court has brought international attention to the African human rights system, international law and human rights scholars rarely turn to African examples when studying the domestic application of international human rights norms. This Article seeks to fill that gap by analyzing cases from several Anglophone common law countries in sub-Saharan Africa that invoke international law and comparative case law as interpretive support in their national fundamental rights jurisprudence.

Does It Take A Village - Privatization, Patterns Of Restrictiveness And The Demise Of Community, Paula A. Franzese

Villanova Law Review (1956 - )

No abstract provided.

Judicial Personality: Rhetoric And Emotion In Supreme Court Opinions, Laura Krugman Ray

Washington and Lee Law Review

No abstract provided.

Emotional Competence, Multicultural Lawyering And Race, Marjorie A. Silver

Scholarly Works

No abstract provided.

Court Review: Volume 38, Issue 4 - Table Of Contents

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 38, Issue 4 - Cover

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 38, Issue 4 - Saving The State Justice Institute, Jose Dimas

Court Review: Journal of the American Judges Association

Last fall, Congress seriously undermined efforts to strengthen and improve state court systems. The appropriations bill for FY 2002 funded the State Justice Institute (SJI) at $3 million and called for its demise by September 30, 2003.
SJI is the only federal institution dedicated to improving the state court systems. It does this primarily by funding national-scope court projects and the awarding of educational scholarships to court personnel. A national effort led by the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) is under way in the court community to reverse this decision and gain …

Court Review: Volume 38, Issue 4 - The Changing Role Of A Judge And Its Implications, Roger Hanson

Court Review: Journal of the American Judges Association

There is a lot of talk these days about the role of a judge, especially among trial court judges. Frequently the discussion is framed in terms of whether the judiciary should be expected to behave in one of two polar-opposite ways. Should they be primarily almost aloof finders of fact, impartial and nearly devoid of intimate contact with and knowledge of litigants and their circumstances? Or should they be one of many possible partners to a diagnostic, therapeutic oriented response process to ameliorate underlying and messy problems of litigants? These choices confront judges with the creation and development of drug …

Court Review: Volume 38, Issue 4 - Drug Treatment Programs: Policy Implications For The Judiciary, Arthur H. Garrison

Court Review: Journal of the American Judges Association

Drug use in the United States has been cited for the growth in American prisons over the past decade. Heroin, once considered a drug to be avoided and scorned, has had resurgence in use by middle-class youth and white-collar professionals due to the increased purity of the drug and the lack of need to use needles for ingestion. Naltrexone has been used as a method of helping heroin addicts to end their drug dependency, but such programs have limitations in their use and effectiveness. This paper is drawn from an evaluation of a drug treatment program in Wilmington, Delaware. The …

Court Review: Volume 38, Issue 4 - Illinois V. Wardlow: The Empowerment Of Police, The Weakening Of The Fourth Amendment, Pamela Richardson

Court Review: Journal of the American Judges Association

The Fourth Amendment of the United States Constitution protects the right of the people against unreasonable searches and seizures by requiring a probable cause showing in order to obtain a warrant before conducting such searches. Since the United States Supreme Court decided Terry v. Ohio in 1968, however, the words of the Fourth Amendment have been questioned and the rights of the individual challenged. When the Court decided Illinois v. Wardlow in 2000, it was made clear that the words once written to protect all Americans do not pertain to those residing in locations deemed “highcrime areas.”

Court Review: Volume 38, Issue 4 - Editor's Note

Court Review: Journal of the American Judges Association

In the lead article in this issue, court consultant Roger Hanson examines the implications of the changing role of the judge. He rightly notes that judging today is not exactly what it was 30 years ago and asks how changes in the perceptions of the proper judicial role have affected the behavior of judges. For most of us, we tend to do our jobs on a daily basis without conscious thought about the various roles we play (e.g., law applier, mediator, policy maker), let alone the expectations of others about our performance of each of those roles. Although Hanson draws …

Court Review: Volume 38, Issue 4 - President's Column, Bonnie Sudderth

Court Review: Journal of the American Judges Association

Zeal and tunnel vision replace the cool detachment that law school instills. Just as a doctor should never self-diagnose, a lawyer, too, should not self-represent. This point was never driven home more for me than when, at the end of a lengthy jury trial of a boring commercial dispute involving a self-represented attorney, a juror asked me, “Does he beat his wife?” Not only had the attorney done a poor job in representing himself (he lost), but his over-passionate arguments and extreme positions left the jurors with the distinct impression that he was emotionally unstable, perhaps even dangerous.

Court Review: Volume 38, Issue 4 - The Resource Page

Court Review: Journal of the American Judges Association

No abstract provided.

System And Lifeworld In Habermas's Theory Of Law, Hugh Baxter

Cardozo Law Review

Jürgen Habermas's recent work on law and democracy divides into two parts. With his "discourse theory of law and democracy," Habermas seeks to explain the conditions under which modern constitutional legal and political orders may claim legitimacy. Here Habermas's method is primarily philosophical and legal-theoretical. The second part of the project - the part on which this article focuses - develops what Habermas calls his "communication theory of society." Here Habermas seeks to "translate" the normative conclusions of his discourse theory into a substantive social-theoretical model. The idea is to determine whether the ambitious normative theory of democracy is plausible …

Ethnography And The Idealized Accounts Of Science In Law, David S. Caudill

San Diego Law Review

n Part I, I confirm the idealizations of science in law and their implications for legal scholarship and practice. In Part II, I describe the ethnographic method used by science studies scholars, with reference to my own ethnographic analysis of interviews with three neuroscientists. I conclude Part II by identifying various social aspects of science that comprise a complex picture of scientific activity. In Part ill, I discuss the implications of ethnomethodology for trial practice, including deposition analysis, Daubert-type hearings, cross-examination techniques, and drafting jury instructions. Part IV addresses anticipated criticisms of my arguments.

Sua Sponte Appellate Rulings: When Courts Deprive Litigants Of An Opportunity To Be Heard, Barry A. Miller

San Diego Law Review

But the Supreme Court and other appellate courts have failed to follow any consistent practice about sua sponte holdings. The difficulty courts have is illustrated by the fact that even the most prominent appellate judges sometimes say they want procedural regularity, but in other cases exercise the freedom to do what they like.

Textual Imagination, Mary D. Fan

Articles

Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. The Supreme Court’s decision in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources shows the Supreme Court’s mounting disregard for legislative history and concomitant attempt to erect replacement canons of statutory construction to guide textual interpretation. The opinion privileged a canon of statutory construction over the legislative record of congressional intent. Of more imminent and practical impact, Buckhannon invalidated the catalyst theory of awarding plaintiff’s fees to “prevailing parties” under statutes authorizing private attorneys general to bring …

Treaties And The Eleventh Amendment, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce …

A Subversive Strand Of The Warren Court, Gary Peller

Georgetown Law Faculty Publications and Other Works

The choice between "de jure" and "de facto" standards of review arises whenever a legal standard is needed to identify violations of specific constitutional rights or norms in particular cases. The issue is methodological in the sense that the question is faced regardless of the particular right or norm at issue (although it is not really true that the choice between these methodologies would have no influence on the choice of rights or norms to apply). A de Jure approach limits the imposition of constitutional norms to cases in which the state has affirmatively acted to help create a particular …

The Limits Of Being "Present At The Creation", Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Having been invited late to this Symposium and having read fewer than all essays, I offer, (with deep appreciation for the invitation), only mini-comments on three of the many valuable contributions: the essays by Professors Persily, Hasen, and Gerken. But first, at risk of pedantry, may I suggest changing the Symposium's title to something like "Baker and its Progeny .... (or "Baker, doughnuts, and holes"?). Most of the treatment seems to be about the progeny, as surely it should be. While of course everyone knows how far Baker went, what Reynolds did, and what was not done until after Reynolds, …

Law And Prudence In The Law Of Justiciability: The Transformation And Disappearance Of The Political Question Doctrine, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay develops the foregoing argument by examining, in Section I, the transformation of the political question doctrine from Baker v. Carr through Walter Nixon v. United States. Section II charts a similar, perhaps even more dramatic transformation of the law of standing. Section I then examines Bush v. Gore, explaining how older doctrines of standing and political questions might have been thought relevant there. It argues as well that the very fact that those doctrines went unmentioned by the Court shows why we must take a historically grounded view of justiciability doctrines. Section IV sketches the historical settings in …

Tradition, Principle And Self-Sovereignty: Competing Conceptions Of Liberty In The United States Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and producers to make individual market choices, including the choice to sell one’s labour at any price one sees fit, free of redistributive or paternalistic legislation that might restrict it; and the liberty of all of us in the domestic sphere to make choices regarding reproductive and family life, free of state law that might restrict it on grounds relating to public morals. Although the United …

Law's Constitution: A Relational Critique, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

It is a simple fact: we begin from others. Without others we, quite literally, could not live, feel, be born. Every mother, every mother's partner, every father, every child, knows this. But law sees these relations as something lesser, as foreign. Mention the word "relationship" to the average lawyer and she will likely assume that you are talking about sex, dating, or perhaps marriage. She may even wonder what "relationship" has to do with the law at all.

In this paper, the author wonders whether it is possible to flip that equation, to think of the relational as central, rather …

The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner

Faculty Articles

No abstract provided.

Fact, Value And Action In Nonconceptual Jurisprudence, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

Is The Republic Circling The Drain?, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.