Legal History Commons^™

Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L L.J. 135 (2012).

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution issue …

A Reflection On American Justice At A Crossroads: A Public And Private Crisis, Maureen A. Weston

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Remarks Of Thomas J. Stipanowich, Thomas J. Stipanowich

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Remarks Of Kathleen Bryan, Kathleen Bryan

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Opening Remarks, Kenneth Starr

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy

Pepperdine Dispute Resolution Law Journal

This article identifies the basis and limits of the parties' abilities to define and enforce discovery in an ex ante contract. Despite the deficiencies of litigation, the free, public dispute resolution forum of the civil justice system provides significant value in commercial disputes. That value can be used to maximum mutual advantage only if parties replace the infinite discovery permitted in conventional litigation with the finite discovery contracted in Economical Litigation Agreement (ELA) litigation. This article will help parties to understand the benefit and enforceability of the ELA.

Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Bejamin F. Tennille, Lee Applebaum, Anne Tucker Nees

Pepperdine Dispute Resolution Law Journal

The assumed compatibility between ADR and specialized courts is largely unexamined. Without being able to statistically validate the motivations and preferences of individual disputants in a manner to draw generalized conclusions, this article examines the relationship between ADR and specialized business courts by looking at how the two are structurally intertwined through existing procedural rules and implementation practices. Part I of this article describes the foundational structures and concepts behind both ADR and specialized business courts, as well as the similarities and differences between them. Part II explores the existing formal structural relationship between ADR and specialized courts by examining …

Timeline Of African-American Legal History In Nevada (1861-2011), Rachel J. Anderson

Scholarly Works

For the first time in Nevada history, this timeline depicts selected events in the history of African-American lawyers, civil rights, and diversity in Nevada's bar and bench. It includes many historically significant pictures and is part of a special Black History Month issue of the Nevada Lawyer, the official publication of the State Bar of Nevada. That issue highlights the achievements and contributions of African-American lawyers in Nevada in honor of the 51st anniversary of the first African American (Charles L. Kellar) passing the Nevada state bar examination, the 48th anniversary of the first two African Americans admitted to the …

Preserving The Past In The Present For The Future: Las Vegas Chapter Of The National Bar Association Archive At The Wiener-Rogers Law Library, Jeanne Price, Rachel J. Anderson

Scholarly Works

This co-authored article documents the establishment of the Las Vegas Chapter of the National Bar Association (LVNBA) Archive in 2011 at the Wiener-Rogers Law Library at the University of Nevada, Las Vegas, William S. Boyd School of Law, which may be the first of its kind in the nation. The LVNBA archive was established in cooperation with the LVNBA, the local affiliate of the National Bar Association, which is the nation’s oldest minority bar and largest national association of over 44,000 predominately African-American lawyers, judges, professors, and law students. Materials donated by the LVNBA and its members document the role …

New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

Introduction, Paul Finkelman

Faculty Scholarship

No abstract provided.

Constitution Day 2012: The American Judiciary, Robert Berry

Librarian Publications

Robert Berry, research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the role of the American Judiciary in interpreting laws of the United States government. The essay was written for the occasion of Constitution Day 2012 at Sacred Heart University.

Law And The Argumentative Theory, 90 Or. L. Rev. 837 (2012), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

Like many law professors, I have coached my share of moot court teams. As you probably know, in most competitions students either choose or are assigned one side of the case to brief. But for the oral argument segment of the competition, students must argue both sides of the case, “on-brief” and “off-brief,” often in alternate rounds.

At the end of a competition, with their heads still swimming with arguments and counterarguments, students will sometimes ask, “OK, so can you tell us which is the correct side?” I always say, “Of course I can. . . . The correct side …

Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder

Faculty Publications

"I think that Plessy v. Ferguson was right and should be reaffirmed." That's what Supreme Court law clerk William H. Rehnquist wrote privately in December 1952 to his boss, Justice Robert H. Jackson. When the memorandum was made public in 1971 and Rehnquist's Supreme Court confirmation hung in the balance, he claimed that the memorandum reflected Jackson's views, not Rehnquist's. Rehnquist was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices. This Essay analyzes a newly discovered document—a letter Rehnquist wrote to Justice Felix Frankfurter in 1955, …

The Impeachment Of The Judges Of The Nova Scotia Supreme Court, 1787-1793: Colonial Judges, Loyalist Lawyers, And The Colonial Assembly, Jim Phillips

Dalhousie Law Journal

In 1790 the Nova Scotia House of Assembly passed seven "articles of impeachment" against two ofthe colony's Supreme Courtjudges, the firstattempt bya British North American assembly to remove superior courtjudges. Although the impeachment failed when the British government rejected the charges, it is noteworthy nonetheless. The product of a dispute between newly arrived loyalist lawyers and a local elite of "old inhabitants, " it was at one and the same time a political struggle between the Assembly and the executive branch, and one that involved concerns about judicial competence. The impeachment crisis also demonstrates the close links between the judiciary …

Paul Verkuil As Institution Builder: The Cardozo Story, Matthew Diller

Cardozo Law Review

No abstract provided.

Employment Division V. Smith At The Supreme Court: The Justices, The Litigants, And The Doctrinal Discourse, Marci A. Hamilton

Cardozo Law Review

No abstract provided.

The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin

Michigan Law Review

The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are …

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …

Acontextual Judicial Review, Louis Michael Seidman

Cardozo Law Review

No abstract provided.

Justice Hugo Black And His Law Clerks: Match-Making And Match Point, Todd C. Peppers

Scholarly Articles

Like other Justices on the Supreme Court, Justice Black hired law clerks to assist with the work of the Court. Each year, his law clerks would assist in reviewing cert. petitions, doing legal research, and editing opinion drafts. These job duties, however, were only one dimension of the Black clerkship. As the Justice himself once remarked to a law-clerk applicant, “I don’t pick my law clerks for what they can do for me, I pick my law clerks for what I can do for them.”

Till Death Do Us Part: Chief Justices And The United States Supreme Court, Todd C. Peppers, Chad M. Oldfather

Scholarly Articles

In this Essay, we identify and explore an additional institutional difficulty, which bridges these last two components of the proposed Act. Prior commentary has chronicled the phenomenon of Justices serving beyond the point at which they are able to perform their duties. It has also addressed the unique powers and responsibilities of the Chief Justice, with some arguing that the administrative aspects of the role should be divorced from the effectively life tenure associated with a position on the Court. We wish to highlight a connection. The unique powers and responsibilities of the center chair may make Chief Justices even …

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

I am really happy to be part of this tribute to Paul Verkuil. It may surprise those in the audience to learn that I am bringing some needed diversity to today's proceedings - I am the only other Dutch American on the program! But perhaps my twenty years at the "Administrative Conference" also qualifies me to say a few words about how thrilled I am that we have it back - "ACUS 2.0" we can call it, complete with a website this time- and that Paul is at its helm. And I want to thank Paul for bringing me back …

Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Freedom Of Information Act Trial, 61 Am. U. L. Rev. 217 (2011), Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

This Article examines the paucity of Freedom of Information Act (FOIA) cases that go to trial and courts' preference for resolving these disputes at the summary judgment stage. Using traditional legal analysis and empirical evidence, this Article explores whether we should expect FOIA cases to go to trial and how the scarcity of FOIA trials compares to the trial rate in civil litigation generally. It concludes that the unusual use of summary judgment in FOIA cases has unjustifiably all but eliminated FOIA trials, which occur in less than 1 % of FOIA cases. It further examines how conducting FOIA trials …

What Do We Mean By An Independent Judiciary, 38 Ohio N.U. L. Rev. 133 (2011), Michael P. Seng

UIC Law Open Access Faculty Scholarship

Issues continue to arise about judicial independence in the United States. The term judicial independence is often not defined with precision. Judicial independence has its roots in the doctrine of separation of powers. It is also grounded in due process and in ethical standards that require judges to be competent and impartial decision-makers. Judicial independence depends upon society having faith in the integrity of the courts. Accountability is thus the handmaid of an independent judiciary. This article defines both the structures and the ethical standards that ensure an independent judiciary.

The Prehistory Of Fair Use, Matthew Sag

Faculty Articles

This article proceeds as follows: Part I begins with a brief summary of the fêted case Folsom v. Marsh and its place in the development of American copyright law. Folsom v. Marsh has been criticized for expanding copyright protection beyond acts of mere mechanical reproduction to include an abstract concept of the work’s value. Of course, this critique is premised on the belief that the scope of copyright prior to Folsom v. Marsh’s intervention was so narrow that it tolerated almost all secondary works. Part II exposes the frailty of this premise.

Specifically, Part II explores the foundation for the …

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty