Courts Commons^™

The U.K. Supreme Court At War, Po Jen Yap

Washington International Law Journal

This article contends that the underlying normative assumptions of civil libertarians and national security “executive unilateralists” are premised on a variant of the “nirvana fallacy.” In other words, civil libertarians generate a best-case scenario for rigorous judicial oversight over executive action during emergencies and compare it to the worst-case scenario for executive action; the reverse holds true for executive unilateralists. In practice, the Supreme Court of the United Kingdom has been cognizant of the institutional advantages and limitations of its office when it adjudicates national security disputes, and has not succumbed to the criticisms of scholars in either camp. Instead, …

An Appeal To Common Sense: Why "Unappealable" District Court Decisions Should Be Subject To Appellate Review, Matthew D. Heins

Northwestern University Law Review

28 U.S.C. § 1291 vests jurisdiction in the United States Circuit Courts of Appeal to hear “appeals from all final decisions of the district courts of the United States.” Various circuit courts have, however, determined that they may only hear appeals of final “judicial” decisions, and that they do not have jurisdiction to hear appeals from final decisions of United States district courts if those decisions are “administrative.” Circuit courts have been loath to explicitly define the dividing line between the two classes of case, and have frequently invoked the potential availability of mandamus review as a means of placating …

Between The Ceiling And The Floor: Making The Case For Required Disclosure Of High-Low Agreements To Juries, Richard Lorren Jolly

University of Michigan Journal of Law Reform

Parties are increasingly using high-low agreements to limit the risks of litigation. High-low agreements are contracts in which defendants agree to pay plaintiffs a minimum recovery in return for plaintiffs’ agreement not to execute on a jury award above a maximum amount. Currently no jurisdiction requires high-low agreements to be disclosed to the jury. This Note argues that disclosure should be required. It contends that non-disclosed high-low agreements are a type of procedural contract modifying the jury’s core adjudicative function. Drawing on theories of procedural justice, it suggests that by usurping the jury’s role these agreements undermine the legitimacy of …

Duty To Defend And The Rule Of Law, Gregory F. Zoeller

Indiana Law Journal

This Article challenges Eric Holder’s and William Pryor’s views and explains the proper role of a state attorney general when a party challenges a state statute. In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law. (introduction)

Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963-2013, Jack Tsen-Ta Lee

Washington International Law Journal

This article surveys the use of foreign precedents in constitutional adjudication by the Supreme Court of Singapore for over half of a century during the terms of the first three Chief Justices—Wee Chong Jin (1963–1990), Yong Pung How (1990–2006), and Chan Sek Keong (2006–2012)—and the first year in office of the fourth Chief Justice, Sundaresh Menon (2012–2013). It concludes that while judges have always cited foreign case law, they have only actually applied foreign cases where the wording of the Constitution and the constitutional arrangements in Singapore are fairly analogous to the constitutional texts and arrangements upon which the cases …

International Law And National Courts: Between Mutual Empowerment And Mutual Weakening, Osnat Grady Schwartz

Cardozo Journal of International and Comparative Law

Over the past two decades, national courts have increasingly engaged with international law in fields and cases they used to avoid before. This Article argues that national courts' voluntary/discretionary application of international law and their greater openness to it are incentivized by the power offered to courts by international law. It empowers them directly - through making them direct subjects of it, advancing the rule of law, and offering institutional backup in the form of international courts and tribunals - and indirectly - by offering them a normative tool kit to be used in their decisions and amplify their legitimacy. …

Complex Experimental Federalism, Doni Gewirtzman

Buffalo Law Review

No abstract provided.

The Law And Politics Of The Charles Taylor Case, Charles Chernor Jalloh

Articles

This article discusses a rare successful prosecution of a head of state by a modern international criminal court. The case involved former Liberian president Charles Taylor. Taylor, who was charged and tried by the United Nations-backed Special Court for Sierra Leone ("SCSL'), was convicted in April 2013 for planning and aiding and abetting war crimes, crimes against humanity, and other serious international humanitarian law violations. He was sentenced to 50 years imprisonment. The SCSL Appeals Chamber upheld the historic conviction and sentence in September 2013. Taylor is currently serving his sentence in Great Britain.

This article, from an insider who …

A Prosecutor's Guide To Character Evidence: When Is Uncharged Possession Evidence Probative Of A Defendant's Intent To Distribute?, James Decleene

Marquette Law Review

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An Analysis Of The Legal And Practical Implications Of The Potential Increased Participation In Jury Service By Racial Minorities In The U.S. Criminal Justice System, Brian Keith Leonard

West Virginia Law Review

No abstract provided.

Judge Posner's Simple Law, Mitchell N. Berman

Michigan Law Review

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …

Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii

Michigan Law Review

In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way. Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. …

Griggs At Midlife, Deborah A. Widiss

Michigan Law Review

Not all Supreme Court cases have a midlife crisis. But it is fair to say that Griggs v. Duke Power Co., which recently turned forty, has some serious symptoms. Griggs established a foundational proposition of employment discrimination law known as disparate impact liability: policies that significantly disadvantage racial minority or female employees can violate federal employment discrimination law, even if there is no evidence that the employer “intended” to discriminate. Griggs is frequently described as one of the most important decisions of the civil rights era, compared to Brown v. Board of Education for its “momentous social consequences.” In 1989, …

Prosecuting Generals For War Crimes: The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Cardozo Journal of International and Comparative Law

The article examines the evolving concept of "specific direction" in accomplice liability for war crimes under international law, highlighting the conflicting approaches of the ICTY and ICC. It advocates for the ICC to adopt a clear, intent-based standard to ensure accountability and consistency, avoiding the ambiguities of "specific direction."

Silent Similarity, Jessica D. Litman

Articles

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the problem at the heart of …

Lessons Unlearned: The Effects Of Statutory Ambiguity And The Interpretative Uncertainty It Injects In The Courts, Carolyn Singh

University of the District of Columbia Law Review

For centuries, courts have dealt with the challenge of imposing penalties for crimes when governing law changes. Applying the new provisions can be a straightforward exercise for courts, but when legislatures are ambiguous with regard to which law applies-forexample, to pending cases-the courts are forced to interpret what legislatures intended. For some judges, the answer is easily found in the plain meaning of the text. For others, legislative intent can become the deciding factor. Throughout United States history, this has been a manageable yet controversial task, but aside from interpretive differences among judges, creating laws with uncertainty is a dangerous …

Internet Payment Blockades: Sopa And Pipa In Disguise? Or Worse?, Stacey Dogan

Shorter Faculty Works

The law of intermediary liability in intellectual property reflects a constant struggle for balance. On the one hand, rights owners frustrated by the game of whack-a-mole have good reason to look for more efficient ways to stanch the flow of infringement. While this concern is not a new one, the global reach and decentralization of the Internet have exacerbated it. On the flipside, consumers, technology developers, and others fret about the impact of broad liability: it can impede speech, limit competition, and impose a drag on economic sectors with only a peripheral relationship to infringement. As the Supreme Court put …

Brief Of Amici Curiae Law Professors In Support Of Defendant-Appellee National Football League, Rebecca Tushnet, Mark Mckenna

Court Briefs

No. 14-3428
John Frederick Dryer v. National Football League

On Appeal from the United States Distric Court for the District of Minnesota, Civ. No. 09-02182 (PAM/FLN), Hon. Paul A. Magnuson

From the Summary of Argument

Based on the undisputed facts, the NFL’s films in this case are noncommercial speech; their profit-seeking and brand-building nature are standard features of noncommercial speech. Truthful, nondefamatory noncommercial speech deserves full First Amendment protection, and there is no justification for allowing Appellants to control speech about them in this case.

Separately, Appellants’ right of publicity claims are preempted by the Copyright Act, which allows owners …

International Law - Employment Discrimination. Japanese Corporation Formed Under United States Law Must Comply With Terms Of Title Vii Of The Civil Rights Act Of 1964. Avagliano V. Sumitumo Shoji America, Inc., - U.S. -, 102 S. Ct. 2374 (1982)., Henry Cyrus

Georgia Journal of International & Comparative Law

No abstract provided.

From The Shoals Of Ras Kaboudia To The Shores Of Tripoli: The Tunisia/Libya Continental Shelf Boundary Delimitation, Donna R. Christie

Georgia Journal of International & Comparative Law

No abstract provided.