Jurisprudence Commons^™

What Is Legal Doctrine, Emerson Tiller, Frank B. Cross

Public Law and Legal Theory Papers

Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others’ efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe …

Markets & Democracy: The Illegitimacy Of Corporate Law, Daniel J.H. Greenwood

ExpressO

Corporate law does not conform to ordinary democratic norms. Unlike human citizens, corporations may decide which law will govern their most fundamental acts of self-governance. The corporate law corporation choose in turn influences the corporate goals and decision-making processes that determine what the corporation looks for in corporate law in a reflexive system independent of ordinary political processes.

This system seems on its face to violate the most fundamental principle of popular sovereignty–all non-Delaware citizens of the United States are excluded from even formal participation in the process of determining American corporate law, and even Delaware citizens are reduced to …

Damaged Goods: Why, In Light Of The Supreme Court's Recent Punitive Damages Jurisprudence, Congress Must Amend The Federal Rules Of Evidence, Michael S. Vitale

Vanderbilt Law Review

Since the 1980s, a wide range of courts and commentators have expressed concern over large punitive damages awards handed out by civil juries against a wide array of tortfeasors. A late 2001 study revealed that from 1985 to 2001, eight multi-billion dollar punitive damages awards were granted, with four of them being handed down in the years 1999 to 2001 alone.' Not surprisingly, all but one of these verdicts were handed down against large corporations. Among the current members of the U.S. Supreme Court, Justice John Paul Stevens in particular has regularly noted the especially dangerous tendency the current punitive …

Court Review: Volume 42, Issue 1 - The Resource Page: Focus On Electronic Discovery

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 1 - Resource Page

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 1 - Table Of Contents

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 1 - Judicial Accountability, Fairness, And Independence, Roger K. Warren

Court Review: Journal of the American Judges Association

Much attention has focused of late on unfair attacks on judges leveled in nominal pursuit of greater judicial accountability. In response to the refusal of the federal courts to intervene in the Terry Schiavo case, for example, House Majority Leader Tom DeLay angrily declared that Congress has for many years “shirked its responsibility to hold the judiciary accountable.”

Court Review: Volume 24, Issue 1 - Recent Criminal Decisions Of The United States Supreme Court: The 2004-2005 Term, Charles H. Whitebread

Court Review: Journal of the American Judges Association

The 2004-2005 Term of the Supreme Court off e red no blockbuster rulings. Nonetheless, in what turned out to be the final year for the Rehnquist Court, there were ru lings of note on topics ranging from securities fraud to sentencing guidelines. In one case, the Court looked to foreign law as a model for determining whether to prohibit the death penalty as a sentence for juvenile criminal offenders. It will be interesting to see, with changes in the Court’s membership, whether this trend to look toward foreign law in constitutional or other criminal cases continues. In this article, I …

Court Review: Volume 42, Issue 1 - Complete Issue

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 1 - President’S Column, Michael Cicconetti

Court Review: Journal of the American Judges Association

The first 90 days of my term as president of the American Judges Association have had me criss-crossing this country to attend various judicial and court-related conferences. Family, friends, and colleagues constantly pester me on my fortunes as a frequent traveler. However, the reality of traveling is rushing to the airport, long and nervous waits in security lines, subjecting one’s self to non-consensual search and seizure, capacity-filled airplanes with cramped seats, awful microwaved hamburgers, delayed flights, irritable taxi drivers, foreign-speaking intern reservation clerks at the hotel, mini-bars, and “Save the World” notes about reusing your linens and towels. Oh yes, …

Court Review: Volume 42, Issue 1 - Judicial Responses To An Aging America, Max B. Rothman, Burton Dunlop

Court Review: Journal of the American Judges Association

In 2000, the authors published a book titled Elders, Crime, and the Criminal Justice System: Myth, Perceptions, and Reality in the 21st Century, in which several chapters were devoted to older adults’ interactions with the court system.1 Those chapters revealed that these interactions could be highly problematic for elders. In follow-up, this article is based on a project designed to address the overarching issue of whether and how judicial systems in the United States ensure that older adults (60 and older) are provided effective access to the courts, including both civil and criminal jurisdictions.2 In order to accomplish this …

American Review: Volume 42, Issue 1 - Dwi Courts: The Newest Problem-Solving Courts, Victor E. Flango

Court Review: Journal of the American Judges Association

Problem-solving court s — m o re accurately, specialized dockets—are established to deal with problems that may benefit from focused and sustained attention. These courts include a treatment component in an effort to reduce recidivism, which in turn reduces the number of future arrests, prosecutions, and court cases.

Specialized drug courts appeared in the late 1980s in response to the dramatic increase in drug offenses. Some drug courts, often referred to as “drug-treatment courts,” emphasize treatment as the way to reduce recidivism. Essential elements of drug courts include: (1) immediate intervention; (2) nonadversarial adjudication; (3) hands-on judicial involvement; (4) treatment …

Is There Anything Outside The Class? Law, Literature, And Pedagogy, Penelope Pether

Cardozo Law Review

No abstract provided.

Food Democracy Ii: Revolution Or Restoration?, Neil D. Hamilton

Journal of Food Law & Policy

Author's Note: This essay is a companion to the essay 'Food Democracy, "which appears in 9 Drake Journal of Agricultural Law 9 (2004). In that essay, the author discussed many of the progressive trends that are helping reshape America's food system. These trends have a common denominator in their reflection of the democratic tendencies of the American populace. The desire of an increasing number of consumers to eat better food and to have access to the information, choices, and alternatives that make better food available are helping drive shifts in food production and marketing. Accompanying these shifts are political and …

Robert Dahl's How Democratic Is The American Constitution?: An Introduction, With Notes On The Electoral College, Michael Herz

Cardozo Law Review

No abstract provided.

Unity And Pluralism In Contract Law, Nathan Oman

Michigan Law Review

It is a cliché of contemporary legal scholarship that, in the last few decades, the study of law has witnessed a vast proliferation of competing theoretical approaches. The old faith in the careful honing of doctrinal concepts and the essential usefulness of legal analysis has given way to a cacophony of competing theoretical sects. Economists, moral philosophers, sociologists, historians, and others have stepped forward to offer the insights of this or that discipline as a new and superior path to legal enlightenment. Perhaps nowhere has this cliché been truer than in the realm of contracts scholarship, where, for a generation, …

Deferring, Frederick Schauer

Michigan Law Review

Many academics, upon encountering a book on deference by a leading legal theorist, would assume that the book was still another contribution to a long and prominent debate about the existence (or not) of an obligation to obey the law. But that would be a mistake. In fact, this is a book not about obligation or obedience but about deference, and it is precisely in that difference that the significance of Philip Soper's book lies. Especially in law, where the Supreme Court (sometimes) defers to the factual, legal, and even constitutional determinations of Congress and administrative agencies, where appellate courts …

Rule-Oriented Realism, Emily Sherwin

Michigan Law Review

In his new book The Law and Ethics of Restitution, Hanoch Dagan undertakes to explain and justify the American law of restitution. He offers a broad theoretical account of this poorly understood subject, designed not only to fortify the substantive law of restitution but also to clarify the role and methodology of courts in developing the field. Dagan's book also provides lively discussion of the role of restitution in some of the most highly publicized legal developments of recent years. Those who think of restitution as an obscure branch of "legal remedies" may be surprised to read about the …

Theory Wars In The Conflict Of Laws, Louise Weinberg

Michigan Law Review

Fifty years ago, at the height of modernism in all things, there was a great revolution in American choice-of-law theory. You cannot understand what is going on in the field of conflict of laws today without coming to grips with this central fact. With this revolution, the old formalistic way of choosing law was dethroned, and has occupied a humble position on the sidelines ever since. Yet there has been no lasting peace. The American conflicts revolution is still happening, and poor results are still frustrating good intentions. Now comes Dean Symeon Symeonides, the author of the choice of- law …

Traceability And Labeling Of Genetically Modified Crops, Food, And Feed In The European Union, Margaret Rosso Grossman

Journal of Food Law & Policy

In the last several years, European Union (E.U.) policy has encouraged development of biotechnology, including genetically modified (GM) (that is, bioengineered) agricultural crops. The E.U. developed a strategy for life sciences and biotechnology, directed toward improving the competitiveness of the European biotechnology sector and the general situation for European biotechnology. E.U. documents have acknowledged the potential significance of genetically modified crops-for example, the conclusion in a recent report that "the potential of plant genomics and biotechnology to deliver major advances in our lifestyles and prosperity is enormous. [Biotechnology] can also maintain and enhance the competitiveness of E.U. farmers and food …

Do European Union Non-Tariff Barriers Create Economic Nuisances In The United States?, Thomas P. Redick, Michael J. Adrian

Journal of Food Law & Policy

The European Union's new traceability system for biotech crops will lead to the proliferation of non-tariff barriers affecting biotech crops. This, in turn, will lead to economic dislocation and attendant liability in the United States, which is losing billions of dollars in export trade. A chain of complex legal problems will arise for United States-based companies as they strive to trace particular genetically modified (GM) events and avoid commingling. The European Union (E. U) tracing law for biotech crops applies at each stage of commodity commerce, from grain shippers leading back through elevators, growers, and seed companies. Warranty liability could …

Revising Seed Purity Laws To Account For The Adventitious Presence Of Genetically Modified Varieties: A First Step Towards Coexistence, A. Bryan Endres

Journal of Food Law & Policy

Adoption of genetically modified (GM) seed varieties in the United States, Canada, and South America continues to expand, with GM crops comprising almost 76 million hectares and over 93 percent of the total biotech cropland worldwide. As an increasing number of farmers plant GM varieties, the potential for adventitious mixture of genetically modified DNA with products produced via organic and conventional (non-GM) methods also increases. Many consumers of organic and identity-preserved products, however, object to the adventitious presence of genetically modified DNA at even low levels. Accordingly, the ability of farmers to choose between conventional, organic, or GM crop production …

Against Interpretive Supremacy, Saikrishna Prakash, John Yoo

Michigan Law Review

Many constitutional scholars are obsessed with judicial review and the many questions surrounding it. One perennial favorite is whether the Constitution even authorizes judicial review. Another is whether the other branches of the federal government must obey the Supreme Court's interpretation of the Constitution and what, if anything, the other branches must do to execute the judiciary's judgments. Marbury v. Madison has been a full-employment program for many constitutional law scholars, including ourselves. Larry Kramer, the new Dean of Stanford Law School, shares this passion. He has devoted roughly the last decade of his career, with two lengthy law review …

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Scholarly Works

This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …

The Failure And Beginnings Again, Milner S. Ball

Cardozo Law Review

No abstract provided.

Introduction: Failure Of The Word: The Rise Of Law And Literature, Arthur J. Jacobson, Gary Minda

Cardozo Law Review

No abstract provided.

20 Years (Or 2000?) Of Story-Telling On The Law: Is Justice Detectable?, Richard H. Weisberg

Cardozo Law Review

No abstract provided.

The Lawless Adjudicator, Robin West

Cardozo Law Review

No abstract provided.

In Defense Of Porfiry Petrovich, Robert Batey

Cardozo Law Review

No abstract provided.

Guilt By "Race": Injustice In Camus's The Stranger, David Carroll

Cardozo Law Review

No abstract provided.