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Court Review: Volume 41, Issue 1 - Complete Issue

Court Review: Journal of the American Judges Association

No abstract provided.

Stick Houses In Peshawbestown, Matthew L. M. Fletcher

Cardozo Public Law, Policy & Ethics Journal

The article examines the legal and historical challenges faced by Native American tribes, particularly the Grand Traverse Band of Ottawa and Chippewa Indians, in asserting their sovereignty and rights. It highlights the federal government's role in undermining tribal autonomy through coercive policies, such as forced sterilization and disenrollment, while also exploring the tension between tribal sovereignty and state jurisdiction. The analysis emphasizes the importance of federal recognition and the ongoing struggles for self-governance, cultural preservation, and economic stability in Native American communities.

American Slavery: The Complete Story, Gerald A. Foster

Cardozo Public Law, Policy & Ethics Journal

The article "American Slavery: The Complete Story" by Gerald A. Foster argues that slavery is a pivotal and enduring element of American history, with its effects still evident today. It emphasizes the need for a more accurate and inclusive historical education, highlighting how race was used to justify slavery and the ongoing impacts of this legacy on modern society. The author advocates for a revised curriculum that acknowledges the true nature of slavery and its contributions to systemic racism.

Verizon Communications, Inc. V. Fcc-Telecommunications Access Pricing And Regulator Accountability Through Administrative Law And Takings Jurisprudence, Michael J. Legg

Federal Communications Law Journal

In this Article, Michael Legg examines the Supreme Court decision in Verizon Communications, Inc. v. FCC, and asserts that shortcomings associated with administrative law have led to an environment of unaccountability in the sphere of telecommunications regulations. Arguing that communications oversight has become exceedingly reliant upon regulatory expertise and that power over economic policy has been excessively ceded to the regulators, the Author concludes that Congress should become more involved in access pricing to prevent further undermining of the democratic governance in this important sector. Finally, Mr. Legg maintains that without further guidance with respect to the relationship between TELRIC …

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …

An Open Question In Utah's Open Courts Jurisprudence: The Utah Wrongful Life Act And Wood V. University Of Utah Medical Center, Glenn E. Roper

BYU Law Review

No abstract provided.

Court Review: Volume 41, Issue 1 - Cover

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 41, Issue 1 - Directory Of Officers And Board Of Governors, 2003-2004

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 41, Issue 1 - Table Of Contents

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 41, Issue 1 - Jury Trial Innovations: Charting A Rising Tide, Gregory A. Mize, Christopher J. Connelly

Court Review: Journal of the American Judges Association

Recently the United States Supreme Court has instructed us that any contested fact, other than a prior conviction, that increases the penalty for a crime must be determined by a jury. In addition, the highest court for the Commonwealth of Virginia has determined that, in capital cases, a claimed defense of mental retardation raises a jury question. Whether it is a case prompted by these high court rulings, one of the many accounting fraud prosecutions in New York, or scientific evidence presented in a products liability action in the Midwest, the American jury is repeatedly being called upon to make …

Court Review: Volume 41, Issue 1 - Recent Evaluative Research On Jury Trial Innovations, B. Michael Dunn, Valerie P. Hans

Court Review: Journal of the American Judges Association

During the past decade, state jury reform commissions, many individual federal and state judges, and jury scholars have advocated the adoption of a variety of innovative trial procedures to assist jurors in trials. These include reforms as prosaic as allowing juror note taking and furnishing jurors with copies of written instructions, through more controversial changes, such as allowing jurors to ask questions of witnesses or permitting them to discuss the case together during breaks in the trial. Accounts of the nature and purpose of the innovations and the pace of change are found in this issue of Court Review1 and …

Court Review: Volume 41, Issue 1 - Jurors’ Unanswered Questions, Shari Seidman Diamond, Mary R. Rose, Beth Murphy

Court Review: Journal of the American Judges Association

American courts have rediscovered what was familiar at common law. A majority of modern courts now sanction the practice of permitting jurors to submit questions during trial. A procedure that permits jurors to submit questions is consistent with the view that juror questions can promote juror understanding of the evidence and fits with other jury innovations, like note taking and written jury instructions, that aim at optimizing juror comprehension and recall. Nonetheless, the practice of permitting juror questions has not received unanimous endorsement and adoption. Even in jurisdictions that authorize juror questions during trial, the ultimate decision as to whether …

Court Review: Volume 41, Issue 1 - Editor's Note

Court Review: Journal of the American Judges Association

One of the challenges faced by a journal serving a specialized audience, like judges, is to balance general-interest articles with ones on a single topic. Some topics are of sufficient significance, though, that we will devote most or all of an issue of Court Review to that topic. When we do this, we work hard to find authors who are in the forefront of work in that area. For this issue on jury reform, we think you’ll be pleased with the result. The authors who have contributed to this issue are unquestionably among the top experts in the field.

Court Review: Volume 41, Issue 1 - President's Column, Michael R. Mcadam

Court Review: Journal of the American Judges Association

My travels this year have given me the opportunity to spread the word about the benefits of AJA membership. My message has been simple: Every judge needs to belong to a national judges’ organization that represents all judges, not just a narrow section or division of judges and not just a bar association with a small minority of judge members. Those kinds of organizations have a role to play, but they can’t speak beyond their narrow focus or with one voice. The AJA can do both.

Court Review: Volume 41, Issue 1 - The Resource Page

Court Review: Journal of the American Judges Association

No abstract provided.

Forfeiting Liberty: A Collective Sense Of Vulnerability And The Need For Proactive Protection After 9/11, Ally Hack

Cardozo Public Law, Policy & Ethics Journal

The note argues that the post-9/11 era has seen a significant erosion of civil liberties, particularly for Arab-Americans and Muslims, drawing parallels to historical episodes of national fear and paranoia, such as Japanese internment during World War II and McCarthyism. It contends that the U.S. response to the attacks, including the expansion of surveillance and detention powers under the USA PATRIOT Act, threatens First Amendment rights and democratic values. The analysis emphasizes the importance of protecting civil liberties and maintaining open debate, even during times of crisis, to ensure a stable and just society.

Unraveling Unlawful Entrapment, Anthony M. Dillof

ExpressO

No abstract provided.

Overview Of Legal Systems In The Asia-Pacific Region: India, Navoneel Dayanand

Overview of Legal Systems in the Asia-Pacific Region (2004)

This article provides a general description of the legal system of India. It further discusses aspects of legal education and legal practice in that country.

Some Commonplace Confusions About Consent In Rape Cases, Peter Westen

ExpressO

Consent to sex matters, because it can transform coitus from being among the most heinous of criminal offenses into sex that is of no concern at all to the criminal law. Unfortunately, the normative task of making the law of rape more just is commonly impaired by conceptual confusion about what "consent" means. Consent is both a single concept in law and a multitude of opposing and cross-cutting conceptions of which courts and commentators tend to be only dimly aware. Thus, consent can be a mental state on a woman=s part, an expression by her, or both; it can consist …

The Court Of Last Resort: American Indians In The Interamerican Human Rights System - Why American Indians Should Utilize Supranational Courts, Derek De Bakker

Cardozo Journal of International and Comparative Law

The note examines the efforts of Native American groups to seek redress for human rights violations through the Inter-American human rights system, highlighting the limitations of the U.S. legal system in addressing indigenous rights. It focuses on key cases, such as the Yanomani, Miskito, and Dann cases, to illustrate how indigenous peoples are leveraging international mechanisms to assert their rights to land, cultural integrity, and self-determination. The analysis underscores the potential of the Inter-American Commission and Court to set precedents for indigenous rights in the United States.

The Effects Of Quebec's Municipal Merger Law On Montreal: Mega-City Or Mega-Blunder?, Chad E. Tepper

Cardozo Journal of International and Comparative Law

The note examines the impact of Quebec's Municipal Merger Law, enacted in 2000, on the Anglophone community, arguing that the law has eroded Anglophone rights, reduced political representation, and exacerbated linguistic tensions. The law, upheld by courts as constitutional, amalgamated 64 municipalities into five megacities, including Montreal, and designated Montreal as unilingually French, contrary to prior bilingual frameworks. The merger process was criticized for its undemocratic nature, lack of public consultation, and disproportionate harm to Anglophone civil service employment. The analysis highlights the long-standing tensions between Anglophone and Francophone communities and explores the high costs and political challenges of reversing …

The Constitutionalization Of Quebec Libel Law, 1848-2004, Joseph Kary

Osgoode Hall Law Journal

In 1848, a Quebec judge changed the law of defamation to accord with the newly-applicable constitutional right to freedom of speech. His decision and those that followed seem strange now that the Supreme Court of Canada has held that Charter rights do not apply to private law. These decisions show that the constitutionalization of libel law was not an American innovation, but rather one that emerged in Canada over a century earlier. This article analyzes the Quebec cases in detail, and suggests that they were grounded in liberal ideas about the British Constitution that were prevalent in Lower Canada at …

Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law Review

The Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), has prompted renewed interest in sentencing by jury in non-capital cases. Yet jury sentencing in felony cases remains one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states-Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window …

A Constitution For Judicial Lawmaking, Adam N. Steinman

Faculty Scholarship

When courts decide cases, the decisions make law because they become precedent that binds future courts under the doctrine of stare decisis. This article argues that some principles governing judicial lawmaking are functionally constitutional principles because they go to the validity of a particular attempt at judicial lawmaking (just as the constitutional principles governing legislative lawmaking determine the validity of lawmaking by legislatures). Because even poorly reasoned judicial decisions can still be effective lawmaking acts, it is important to distinguish between constitutional and non-constitutional principles and arguments. While a non-constitutional principle can be a basis for examining the wisdom or …

Gentleman's Agreement: The Antisemitic Origins Of Restrictions On Stockholder Litigation, Lawrence E. Mitchell

ExpressO

A deeply ingrained, seemingly ineradicable, hostility to plaintiffs’ lawyers and especially to plaintiffs’ lawyers in stockholder suits seems to have existed for most of the past century. This hostility is manifest not only in the tone of judicial opinions but in law review articles, the popular press, and, often, in legislation. This article analyzes the circumstances under which the first security-for-expense statute was adopted in New York in 1944, including the contemporaneous justification for the statute, focusing on the demographics of the New York bar at the time and the ethnic sociology of New York. In so doing, it concludes …

Predatory Systems Rivalry And Predatory Aftermarket Conduct, Richard S. Markovits

ExpressO

No abstract provided.

What's Really Wrong With Compelled Association?, Seana V. Shiffrin

ExpressO

What's Really Wrong With Compelled Association?

The article presents an original account of the value of freedom of association, one more intimately tied to freedom of speech values than the models of association implicit in much commentary and in such U.S. Supreme Court cases as Boy Scouts v. Dale and Roberts v. U.S. Jaycees. Standard models view the relationship between associations and free speech as instrumental. On these accounts, voluntary associations serve as sites for individuals with a defined point of view to congregate together and make their communication louder and more effective. While voluntary associations may sometimes serve this …

From Legal Disputes To Conflict Resolution And Human Problem Solving: Legal Dispute Resolution In A Multidisciplinary Context, Carrie Menkel-Meadow

Journal of Legal Education

No abstract provided.

Remembering The Role Of Justice In Resolution: Insights From Procedural And Social Justice Theories, Nancy A. Welsh

Journal of Legal Education

No abstract provided.

Petition For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.