Jurisprudence Commons^™

Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray

Faculty Scholarship

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …

The Trial Judge's Equitable Discretion Following Ebay V. Mercexchange, Doug Rendleman

Scholarly Articles

None available.

Scholarship And Teaching After 175 Years, Gordon A. Christenson

Faculty Articles and Other Publications

A quarter century ago, I presided at the 150th anniversary celebration of the founding of the Cincinnati Law School. Newly appointed Justice Sandra Day O'Connor came to dedicate the radically refurbished Taft Hall in the spring of 1983 and to say good things about our long history. This year we begin to celebrate the College's 175th anniversary. For its dedicatory issue, the editor-in-chief of the Law Review, Matthew Singer, invited me to write an introduction as well as to reflect on those twenty-five years and the challenges and opportunities I see ahead for us. Especially as an emeritus dean and …

The Foundations Of Section 1983 Jurisprudence: A Look From The Concept Of Law, Timothy I. Oppelt

Florida A & M University Law Review

This article uses the theories of H.L.A. Hart to provide an interpretive framework for a vital civil rights statute, 42 U.S.C. Sec. 1983. Any interpretation of Sec. 1983 requires some sense of the fundamental nature of law and the ability to identify legal rules. Specifically, this article examines the "under color of" language of Sec. 1983 and the statute's application to municipalities. It is possible that these areas remain partially in flux or undeveloped because the Court lacks an interpretation of the statute that accounts for how rules can confer power, create artificial persons, delegate the ability to act with …

The French Headscarf Law Before The European Court Of Human Rights, Kathryn Boustead

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Thinking With Wolves: Left Legal Theory After The Right's Rise (Review Essay), Martha T. Mccluskey

Book Reviews

Reviewing Wendy Brown & Janet Halley, Left Legalism/Left Critique (2001).

Left legal theory is in crisis. This crisis reflects a broader problem of contemporary U.S. politics: the lack of grand ideas capable of mobilizing meaningful opposition to the triumph of the political right. Right-wing legal theory has contributed to that dramatic political change by promoting ideas questioning the foundations of the twentieth century liberal welfare and regulatory state.

This review essay analyzes a rare recent attempt to revive left legal theory in the face of the right's triumph: the anthology Left Legalism/Left Critique edited by Wendy Brown and Janet Halley …

Who Is Entitled To Survivor Benefits From Erisa Plans?, 40 J. Marshall L. Rev. 919 (2007), Albert Feuer

UIC Law Review

No abstract provided.

Labor Regulation, Union Avoidance And Organized Labor Relations Strategies On Tribal Lands: New Indian Gaming Strategies In The Wake Of San Manuel Band Of Indians V. National Labor Relations Board, 40 J. Marshall L. Rev. 1259 (2007), D. Michael Mcbride Iii, H. Leonard Court

UIC Law Review

No abstract provided.

Casenote: The Emerald Casino Fiasco, 40 J. Marshall L. Rev. 1305 (2007), Cory Aronovitz, Jon Topolewski

UIC Law Review

No abstract provided.

Expert Testimony Disclosure Under Federal Rule 26: A Proposed Amendment, 41 J. Marshall L. Rev. 117 (2007), Keith H. Beyler

UIC Law Review

No abstract provided.

"Heads-I-Win, Tails-You-Lose": The Predicament Legitimate Small Entities Face Post Ebay And The Essential Role Of Willful Infringement In The Four-Factor Permanent Injunction Analysis, 41 J. Marshall L. Rev. 189 (2007), William R. Everding

UIC Law Review

No abstract provided.

Serving The "Apparently Under The Influence" Patron: The Ramifications Of Barrett V. Lucky Seven Saloon, Inc., Kathryn M. Knudsen

Seattle University Law Review

In Barrett v. Lucky Seven Saloon, Inc., the Washington Supreme Court erroneously expanded commercial vendor liability to third parties who are injured in automobile accidents by a patron who drives while impaired. This decision flies in the face of Washington vendor liability jurisprudence, which has shown a reluctance to hold vendors liable for negligently serving alcohol; prior to Barrett, courts would not do so unless the patron was a minor or was "obviously intoxicated." Nevertheless, Barrett rejected the common law "obviously intoxicated" rule in exchange for a new form of civil liability based on a criminal statute that …

Court Review: Volume 44, Issue 3 – President’S Column, Tam Schumann

Court Review: Journal of the American Judges Association

In every issue of Court Review, some new members of the American Judges Association are introduced to the AJA through this column. Others turn here for an update. As the AJA’s new president, my first column is a good time to look both backwards at recent activities and forward at the next year’s work.
The AJA today has more than 2,000 members, including judges at all levels of the judiciary—-trial and appellate judges, general-jurisdiction and limited-jurisdiction trial judges, and judges in both the United States and Canada. In fact, we have 150 Canadian members, something that greatly enriches the interchange …

Court Review: Volume 43, Issue 4 – Breaking News: Miller Is Distinguishable From Branzburg, Levon Schlichter

Court Review: Journal of the American Judges Association

Amidst a fog of political divisiveness, Judith Miller found herself in the untenable situation of having to breach the journalists’ code of ethics, as well as her own personal promise of confidentiality, or go to jail. According to the government, she had obtained illegally disclosed information from a high-ranking member of President George W. Bush’s administration. Eventually, a grand jury issued Miller a subpoena that directed her to breach her promise of confidentiality by revealing the identity of her source. Miller claimed that she had a First Amendment right to withhold her confidential information from the grand jury. The court …

Court Review: Volume 43, Issue 4 – A Judges’ Guide To Using Social Science, John Monahan, Laurens Walker

Court Review: Journal of the American Judges Association

Since the first glimmerings of legal realism early in this century, American courts have been remarkably open to using social science research when that research could help resolve empirical issues that arise in litigation. Increasingly in recent decades, courts have sought out research data on their own when the parties have failed to provide them. Social scientists, for their part, are investigating questions of judicial interest at an accelerating pace. In this article, we examine the three principal uses that courts have found for social science research. For each use, we review early and current approaches to dealing with social …

Court Review: Volume 44, Issue 1/2 – Table Of Contents

Court Review: Journal of the American Judges Association

Table of Contents:

Procedural Fairness: A Key Ingredient in Public Satisfaction by Kevin Burke and Steve Leben

Procedural Justice and the Courts By Tom R. Tyler

Procedural Fairness as a Court Reform Agenda by David B. Rottman

Children and Procedural Justice by Victoria Weisz, Twila Wingrove, and April Faith-Slaker

Procedural Fairness in the California Courts by Douglas Denton

The Perceptions of Self-Represented Tenants in a Community-Based Housing Court by Rashida Abuwala and Donald J. Farole

Decision Makers and Decision Recipients: Understanding Disparities in the Meaning of Fairness by Diane Sivasubramaniam and Larry Heuer

Fair Procedures, Yes. But We Dare Not …

Court Review: Volume 44, Issue 3 – Table Of Contents

Court Review: Journal of the American Judges Association

Charles H. Whitebread by Steve Leben

Selected Criminal Law Cases in the Supreme Court’s 2007-2008 Term, and a Look Ahead by Charles D. Weisselberg

When Should Judges Use Alcohol Monitoring as a Sentencing Option in DWI Cases? by Victor E. Flango and Fred Cheesman

Roadside Seizures of Medical Marijuana: Public Safety and Public Policy as Limitations upon Transporting and the Return of Lawfully Seized Medical Marijuana by Cameron Mostaghim

Editor’s Note

President’s Column

The Resource Page

Court Review: Volume 43, Issue 4 – Table Of Contents

Court Review: Journal of the American Judges Association

A Judges’ Guide to Social Science by John Monahan & Laurens Walker
Mental Illness and the Courts: Some Reflections on Judges as Innovators by John P. Petrila & Allison D. Redlich
Cautions About Applying Neuroscience to Batterer Intervention by Edward Gondolf
Breaking News: Miller is Distinguishable from Branzburg by Levon Q. Schlichter
Editor’s Note
President’s Column
The Resource Page

Court Review: Volume 44, Issue 4 – Complete Issue

Court Review: Journal of the American Judges Association

Table of Contents:
An American Judge at the European Court of Human Rights by Donald Shaver

Punitive Damages After Philip Morris USA v. Williams by Benjamin C. Zipursky

From Investigation to Implementation: Factors for Successful Commissions on the Elimination of Racial and Ethnic Bias by Elizabeth Neeley

Editor’s Note

President’s Column

Court Review: The Ten-Year Index

The Resource Page

Court Review: Volume 44, Issue 1/2 – President’S Column, Eileen Olds

Court Review: Journal of the American Judges Association

During this year as your AJA president, my appreciation and respect for the role that we play in our courtrooms has amplified. I have been afforded numerous opportunities to speak with other judges and various community and civic groups to gauge their concerns about our judicial system. Members of the judiciary and the community alike share a common concern for what is viewed as increasingly eroding societal values, as evidenced in courtrooms everywhere. Most conversations eventually evolve to discussions about prevention strategies. How did this happen? What needs to be done? I am convinced that, as judges, we must actively …

Court Review: Volume 44, Issue 1/2 – Procedural Fairness In The California Courts, Douglas Denton

Court Review: Journal of the American Judges Association

In 2005, California’s judicial branch embarked on a two-part assessment to determine current levels of trust-and-confidence in the state courts and to obtain information concerning expectations and performance of the state courts. The findings were revealing—they highlighted good news for the courts and identified considerable challenges. The trust-and-confidence study not only informed the subsequent strategic and operational planning processes, it also spurred a large-scale initiative focused on one particularly compelling aspect of the public-trust-and-confidence assessment: the significant and important role that perceptions of procedural fairness play in determining court users’ trust and confidence in the California courts.

Court Review: Volume 44, Issue 3 – Editor’S Note, Steve Leben

Court Review: Journal of the American Judges Association

This issue marks a transition of significance. For much longer than I’ve been editor, Professor Charlie Whitebread wrote an annual review of the past Term of the United States Supreme Court. He died in September, and we are left without his help in keeping up with the latest developments. We are also left without his great friendship, which is noted in a tribute on page 88. Because our readers and members have known Professor Whitebread for so long, we also note at page 128 a full obituary you can find online.

Court Review: Volume 44, Issue 4 – Punitive Damages After Philip Morris Usa V. Williams, Benjamin C. Zipursky

Court Review: Journal of the American Judges Association

For a single tort case in which liability is no longer contested, Philip Morris USA v. Williams proved remarkably difficult to bring to closure. Like many plaintiffs since the 1990s, Mayola Williams persuaded a jury that Philip Morris fraudulently concealed the addictive and carcinogenic aspects of its product from the public and thereby killed her husband. The jury awarded $821,000 in compensatory damages and $79.5 million in punitive damages. That is a nearly 100:1 ratio, far greater than the single-digit ratio designated by the Court as a presumptive limit only four years earlier in State Farm Mutual Automobile Insurance Company …

Court Review: Volume 44, Issue 4 – An American Judge At The European Court Of Human Rights, Donald Shaver

Court Review: Journal of the American Judges Association

We followed President Barack Obama into Strasbourg, France, last April, but our group of 27 judges and justices did not generate quite as many headlines as he did. Not surprising, since it was only coincidence that our seminar on the European Court of Human Rights (ECHR), sponsored by the International Judicial Academy, happen to follow a NATO summit meeting also occurring in Strasbourg. No worries, we were all excited to be there anyway.

Court Review: Volume 43, Issue 4 – Mental Illness And The Courts: Some Reflections On Judges As Innovators, John Petrila, Allison Redlich

Court Review: Journal of the American Judges Association

Issues raised by the influx of defendants with serious mental illnesses are some of the most important that criminal judges confront. Because of the volume of defendants with mental illnesses, the impact goes beyond that of the individual case and extends to jails, police and sheriff departments, the treatment system, and ultimately to the role of the judge. This article suggests some of the ways in which communities have attempted to respond to these issues, and highlights the fact that judges have become significant leaders as well as innovators in such efforts. Not every judge will decide to adopt one …

Court Review: Volume 44, Issue 3 – Complete Issue

Court Review: Journal of the American Judges Association

Table of Contents:
Charles H. Whitebread by Steve Leben

Selected Criminal Law Cases in the Supreme Court’s 2007-2008 Term, and a Look Ahead by Charles D. Weisselberg

When Should Judges Use Alcohol Monitoring as a Sentencing Option in DWI Cases? by Victor E. Flango and Fred Cheesman

Roadside Seizures of Medical Marijuana: Public Safety and Public Policy as Limitations upon Transporting and the Return of Lawfully Seized Medical Marijuana by Cameron Mostaghim

Editor’s Note

President’s Column

The Resource Page

Court Review: Volume 43, Issue 4 – Cover

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 44, Issue 1/2 – Fair Procedures, Yes. But We Dare Not Lose Sight Of Fair Outcomes, Brian H. Bornstein, Hannah Dietrich

Court Review: Journal of the American Judges Association

Burke and Leben’s White Paper on procedural justice and what judges can do to enhance it in the courtroom is an important work for several reasons, two of which especially stand out. First, their paper illustrates how effectively laboratory-based social-science research (often referred to as basic research) and more naturalistic studies performed in real world contexts (often referred to as applied research) can be combined in addressing public policy matters. Second, it contains practical, feasible, and specific recommendations for improving courtroom practice based on that research. We believe that much goodwill come from Burke and Leben’s calling judges’ attention to …

Court Review: Volume 43, Issue 2 – Appointive Selection Of Judges, Limited-Jurisdiction Courts With Non-Lawyer Judiciaries, And Judicial Independence, Norman L. Greene

Court Review: Journal of the American Judges Association

The subject of the selection of state court judges has many aspects, including the choice of the selection system, the design of the selection system, the comparison of alternative modes of selection, and the effect of the system on judicial performance or decision making, including “judicial independence.” This article addresses many of these aspects and takes as its starting point a unique symposium of articles published in a special issue of the Fordham Urban Law Journal in the Spring of 2007, preceded in time by a daylong symposium with the authors held at Fordham Law School on April 7, 2006.1 …

Court Review: Volume 44, Issue 3 – Roadside Seizures Of Medical Marijuana: Public Safety And Public Policy As Limitations Upon Transporting And The Return Of Lawfully Seized Medical Marijuana, Cameron Mostaghim

Court Review: Journal of the American Judges Association

In November 2007, a California Court of Appeal issued a decision in Garden Grove v. Superior Court that requires local police officers to return medical marijuana to a qualified patient, despite a lawful search and seizure subsequent to a moving motor vehicle violation. The effect of this ruling, in at least some instances, will be to place marijuana back into the hands of a person who is a risk to public safety while driving under the influence or is engaged in the “diversion” of medical marijuana through unlawful transporting.