Courts Commons^™

Between Idealism And Realism: A Few Comparative Reflections And Proposals On The Appointment Process Of The Inter-American Commission And Court Of Human Rights Members, Laurence Burgorgue-Larsen

Notre Dame Journal of International & Comparative Law

In this Article, Professor Laurence Burgorgue-Larsen, a renowned scholar in European and Latin-American law, explores flaws in the process by which members are appointed to the Inter-American Commission and Court of human rights, respectively. Seeking to strike a balance between "Idealism" and "Realism," Burgorgue-Larsen seeks methods for improving the independence and impartiality of the Commissioners and Judges in the Inter-American system in the hopes of ultimately lending greater credibility and legitimacy to the system as a whole. Drawing comparisons to the appointment of judges on national and international courts worldwide, Burgorgue-Larsen ultimately produces specific suggestions for improving the appointment process, …

Death Penalty, Amnesty Laws, And Forced Disappearances: Three Main Topics Of The Inter-American Corpus Juris In Criminal Law, Eduardo Ferrer Mac-Gregor, Pablo GonzáLez DomíNguez

Notre Dame Journal of International & Comparative Law

In this Article, Judge Eduardo Ferrer Mac-Gregor of the Inter-American Court of Human Rights and International Human Rights Researcher Pablo González Domínguez explore three of the richest and most contentious areas of the jurisprudence of the Inter-American Court of Human Rights: death penalty cases, amnesty law, and cased regarding forced disappearance. These topics encompass some of the most pressing human rights issues in the Inter-American System. For each topic, Ferrer Mac-Gregor and González Domínguez provide a succinct but comprehensive view of the Inter-American Court's jurisprudence, discuss the ways in which the core principles of this jurisprudence have been applied in …

Still Kickin’ After All These Years: Sutton And Toyota As Shadow Precedents, Deborah A. Widiss

Articles by Maurer Faculty

Congress’s ability to override judicial opinions that interpret statutes is generally understood as an important aspect of maintaining legislative supremacy. In a series of articles, I have challenged the validity of this assumption by showing that courts often continue to rely on overridden precedents—what I have called shadow precedents. My earlier work explores instances in which it was unclear or debatable whether the override or the prior precedent should control. This article further documents such ambiguities, but its primary objective is to highlight examples of ongoing reliance on shadow precedents where it is unquestionably improper. It suggests, however, that citation …

National Insecurity: The National Defense Authorization Act, The Indefinite Detention Of American Citizens, And A Call For Heightened Judicial Scrutiny, 49 J. Marshall L. Rev. 69 (2015), Harvey Gee

UIC Law Review

This essay outlines the problems posed by the National Defense Authorization Act of 2012 (“NDAA”) and interprets the Act’s language to answer the question of: whether American citizens can be indefinitely detained under the NDAA?

Deboer V. Snyder: A Case Study In Litigation And Social Reform, Wyatt Fore

Michigan Journal of Gender & Law

On April 28, 2015, the Supreme Court will hear oral arguments for four cases from the Sixth Circuit addressing the constitutionality of state bans on same-sex marriage. This Note examines DeBoer v. Snyder, the Michigan marriage case, with the goal of providing litigators and scholars the proper context for our current historical moment in which (1) the legal status of LGBT people; and (2) the conventional wisdom about the role of impact litigation in social reform movements are rapidly evolving.

Sexual Assault And Rape In The Military: The Invisible Victims Of International Gender Crimes At The Front Lines, Stella Cernak

Michigan Journal of Gender & Law

In the past several years in particular, intra-military sexual assault and rape in the U.S. armed forces have been the focus of frequent media attention and intense congressional debate. Despite reforms, the rate of intra-military sexual crimes continues to remain high, as does soldiers’ wariness to report instances of sexual violence to military commanders. These problems and others have invigorated the position taken by some that outside judicial review of intra- military sexual crimes is necessary to provide justice to victims and lower the rate of intra-military sexual assault and rape. This Note argues that one of the primary contributors …

Changing The Rules Of The (International) Game: How International Law Is Turning National Courts Into International Political Actors, Osnat Grady Schwartz

Washington International Law Journal

Courts are known to be political actors. National courts play the political game in the national domain. International courts play it in the international sphere. This article studies the transformation of national courts into international political actors (IPAs), and the part international law plays in so making them. The article identifies, categorizes, and demonstrates the influence of national courts and judges on international relations (IR), separating the influence into two main categories: direct and indirect. Direct influence, is the effect of a national court taking a position on international issues in concrete situations with immediate IR implications. Indirect influence is …

The Rise And Fall Of Bad Judge: Lady Justice Is No Tramp, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Customs Law, Jennifer Diaz, Brandi B. Frederick, Shannon Fura, Yankun Guo, Jamie Joiner, Greg Kanargelidis, Daniel L. Kiselbach, Ryan Mcclure, Bethany Nelson, Rebecca A. Rodriguez, David Salkeld, Trice Stabler, Cyndee Todgham-Cherniak, Nghia "Neo" T. Tran, George Tuttle Iii, Luis Valdez Jimenez, Vicky Wu

The International Lawyer

This article summarizes important developments in 2014 in customs law, including U.S. judicial decisions, trade, legislative, administrative, and executive developments, as well as Canadian and European legal developments.

Anna Moscowitz Kross And The Home Term Part: A Second Look At The Nation's First Criminal Domestic Violence Court, Mae C. Quinn

Journal Articles

No abstract provided.

Stubborn Things: An Empirical Approach To Facts, Opinions, And The First Amendment, Daniel E. Herz-Roiphe

Michigan Law Review First Impressions

This essay offers an empirical approach to the problem, rooted in an argument that the underlying rationale for the fact/opinion distinction in compelled speech doctrine tells us something about how this distinction should be policed. Commercial speech enjoys protection by virtue of its value to listeners, it is from the listener's vantage point, then, that courts should assess whether a compelled disclosure is fact or opinion. And if we are interested in learning how disclosures will affect listeners, we might try asking them, just as courts adjudicating trademark suits frequently use consumer surveys to determine how customers understand the meaning …

How Not To Apply The Rule Of Reason: The O’Bannon Case, Michael A. Carrier

Michigan Law Review First Impressions

The case of O’Bannon v. NCAA has received significant attention. On behalf of a class of student-athletes, former college basketball star Ed O’Bannon sued the NCAA, challenging rules that prohibited payment for the use of names, images, and likenesses (NILs) in videogames, live game telecasts, and other footage. A Ninth Circuit panel, in a 2-1 decision, found that this restraint had anticompetitive effects and procompetitive justifications. And it considered “less restrictive alternatives,” upholding payment for incidental educational expenses beyond tuition and fees, room and board, and required books, but rejecting a deferred $5,000 payment for NILs. Straddling the intersection of …

No More Shortcuts: Protect Cell Site Location Data With A Warrant Requirement, Lauren E. Babst

Michigan Telecommunications & Technology Law Review

In modern society, the cell phone has become a virtual extension of most Americans, managing all kinds of personal and business matters. Modern cell tower technology allows cell service providers to accumulate a wealth of individuals’ location information while they use their cell phones, and such data is available for law enforcement to obtain without a warrant. This is problematic under the Fourth Amendment, which protects reasonable expectations of privacy. Under the Katz two-prong test, (1) individuals have an actual, subjective expectation of privacy in their cell site location data, and (2) society is prepared to acknowledge that expectation as …

Our Unconstitutional Recusal Procedure, Dmitry Bam

Faculty Publications

In this article, I argue that the recusal procedure used in state and federal courts for nearly all of American history is unconstitutional. For centuries, recusal procedure in the United States has largely resembled that of England before American independence. To this day, in most American courtrooms, the judge hearing the case decides whether recusal is required under the applicable substantive recusal rules. If the judge determines that she can act impartially, or that her impartiality could not reasonably be questioned, the judge remains on the case. And although the judge’s decision is typically subject to appellate review — with …

Court Competition For Patent Cases, Jonas Anderson

Utah Law Faculty Scholarship

The traditional academic explanation for forum shopping is simple: litigants prefer to file cases in courts that offer some substantial advantage — either legal or procedural — over all other courts. But the traditional explanation fails to account for competition for litigants among courts. This Article suggests that forum shopping in patent law is driven in part by the creation of procedural and administrative distinctions among courts that are designed to attract, or in some cases to repel, patent litigants.

This Article makes two primary contributions to the literature, one theoretical and one normative. First, it theorizes that judicial competition …

Military Tribunals And Due Process In Post-Revolutionary Egypt, Bianca C. Isaias

The International Lawyer

No abstract provided.

Specialized Standards Of Review, Jonas Anderson

Utah Law Faculty Scholarship

The applicable standard of review on appeal is governed by a simple rule: appellate courts review questions of law de novo, questions of fact for “clear error,” and questions of discretion for “abuse of discretion.” Despite the apparent simplicity of the rule, its application has been uneven, to state it mildly. Scholars have written extensively about the application of the rule, but have yet to consider whether the traditional rule of “deference” should be altered when the appellate court is a specialized court.

Despite the dearth of legal scholarship on specialized deference, the Supreme Court is keenly interested in the …

(Re-)Grasping The Opportunity Interest: Lehr V. Robertson And The Terminated Parent, Lashanda Taylor Adams

Journal Articles

In 1997, an Ohio court terminated Peggy Fugate’s parental rights to her sixyear-old daughter, Selina. At the time, Ms. Fugate, an incarcerated drug abuser, did not fight the order, believing her daughter would be adopted into a clean, stable home.1 However, Selina was never adopted. For the next seven years, Selina had trouble with the police and ran away from her foster home numerous times. While Selina’s life was going downhill in many respects, her mother was rehabilitating. She entered recovery, married, obtained full-time employment and was living in stable housing with enough room for her daughter. Recognizing the strides …

Piercing The Fiduciary Veil, Colin P. Marks

Faculty Works

Limited partnerships (LPs) and limited liability companies (LLCs) permit formation with a unique management structure in that these entities may be managed by another limited liability entity, such as a corporation. Thus, the true managers are those individuals who manage the manager. It is well settled that the managing entity, such as a corporate general partner, owes default fiduciary duties, but what of these second-tier managers? Technically, it is the managing entity that owes the duties, not the managing entity's owners, officers, and directors, yet courts have struggled with strict adherence to this separation when it would seem inequitable to …