Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared,
2012
University of Missouri School of Law
Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong
Faculty Publications
This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.
Stare Decisis In The Inferior Courts Of The United States,
2012
Cleveland State University
Stare Decisis In The Inferior Courts Of The United States, Joseph Mead
Law Faculty Articles and Essays
While circuit courts are bound to fallow circuit precedent under "law of the circuit" the practice among federal district courts is more varied and uncertain, routinely involving little or no deference to their own precedent. I argue that the different hierarchical levels and institutional characteristics do not account for the differences in practices between circuit and district courts. Rather, district courts can and should adopt a "law of the district" similar to that of circuit courts. Through this narrow proposal, I explore the historical stare decisis practices in federal courts that are not Supreme.
Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist,
2012
Yale Law School
Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik
Indiana Law Journal
The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of …
Are You Networked Yet? On Dialogues Within European Judicial Networks,
2012
Maastricht University
Are You Networked Yet? On Dialogues Within European Judicial Networks, Monica Claes, Maartje De Visser
Research Collection Yong Pung How School Of Law
The article examines the modality of judicial dialogue and the practical workings of less institutionalized judicial networks in Europe. Topics discussed include the definition of constitutional pluralism, network, and dialogue, the participation of judges in judicial networks, and the relationship between the Court of Justice of the European Union (CJEU) and the national courts.
Naming The Judicial Terrorist: An Exposé Of An Abuser's Successful Use Of A Judicial Proceeding For Continued Domestic Violence,
2012
University of Central Florida
Naming The Judicial Terrorist: An Exposé Of An Abuser's Successful Use Of A Judicial Proceeding For Continued Domestic Violence, Donna King
Tennessee Journal of Race, Gender, & Social Justice
No abstract provided.
Two Cheers For The Constitution Of The United States: A Response To Professor Lee J. Strang,
2012
1567
Two Cheers For The Constitution Of The United States: A Response To Professor Lee J. Strang, Patrick Mckinley Brennan
Working Paper Series
This article is an invited response to Professor Lee Strang’s article Originalism and the Aristotelian Tradition: Virtue’s Home in Originalism, 80 Fordham L. Rev. 1997 (2012). Strang defends original public meaning originalism from a virtue theoretic perspective that he traces to the “central Western tradition” and ultimately to Aristotle. I reply that those committed to that tradition do better (1) to reject original pubic meaning originalism, (2) to embrace some version of original intent originalism, and (3) to defend the original intent meaning of the U.S. Constitution only with important reservations and on certain conditions. The original sin of …
Foreign Affairs Federalism And The Limits On Executive Power,
2012
University of Chicago Law School
Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton
Michigan Law Review First Impressions
On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism—the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to …
The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law,
2012
University of Missouri - Kansas City, School of Law
The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski
Faculty Works
In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this …
Bush V. Gore: The Worst (Or At Least Second-To-The-Worst) Supreme Court Decision Ever,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
Bush V. Gore: The Worst (Or At Least Second-To-The-Worst) Supreme Court Decision Ever, Mark S. Brodin
Nevada Law Journal
No abstract provided.
Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects,
2012
Cornell Law School
Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi
Cornell Law Faculty Publications
We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors - case specialization, seniority, and workload - that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to …
The Diverging Approach To Price Squeezes In The United States And Europe,
2012
Cornell Law School
The Diverging Approach To Price Squeezes In The United States And Europe, George A. Hay, Kathryn Mcmahon
Cornell Law Faculty Publications
Notwithstanding assertions of greater harmonization and convergence between United States and European Union competition law, recent case law has identified significant differences in their approaches to the regulation of a price or margin squeeze. In the US after linkLine the likelihood of a successful claim has been significantly diminished, particularly if there has been no prior course of voluntary dealing and no downstream predatory pricing. In contrast, in a series of decisions in liberalized telecommunications markets, the EU Courts in applying an “as efficient competitor test” have focused on the preservation of competitive rivalry as “equality of opportunity.” This significantly …
Congress, The Constitution, And
Supreme Court Recusal,
2012
Washington and Lee University School of Law
Congress, The Constitution, And Supreme Court Recusal, Louis J. Virelli Iii
Washington and Lee Law Review
Recusal is one of the most hotly contested issues facing the Supreme Court. From the wide-ranging debate over Supreme Court recusal, however, a singular theme has emerged: Congress must do more to protect the integrity and legitimacy of the Court by regulating the Justices’ recusal practices. Herein lies the problem. Rather than solve the puzzle of Supreme Court recusal, direct congressional regulation has created an impasse between Congress and the Court that has consequences for the reputation, efficacy, and legitimacy of both Branches. In a precursor to this Article, I recast the issue of Supreme Court recusal as a constitutional …
Assessing Divisibility In The Armed Career Criminal Act,
2012
University of Michigan Law School
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Michigan Law Review
When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …
The Worst Supreme Court Case Ever? Identifying, Assessing, And Exploring Low Moments Of The High Court,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
The Worst Supreme Court Case Ever? Identifying, Assessing, And Exploring Low Moments Of The High Court, Jeffrey W. Stempel
Nevada Law Journal
No abstract provided.
Naim V. Naim,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
Terrace V. Thompson And The Legacy Of Manifest Destiny,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
Terrace V. Thompson And The Legacy Of Manifest Destiny, Jean Stefancic
Nevada Law Journal
No abstract provided.
Carnival Cruise Lines, Inc. V. Shute: The Titanic Of Worst Decisions,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
Carnival Cruise Lines, Inc. V. Shute: The Titanic Of Worst Decisions, Linda S. Mullenix
Nevada Law Journal
No abstract provided.
Contract Law Walks The Plank: Carnival Cruise Lines, Inc. V. Shute,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
Contract Law Walks The Plank: Carnival Cruise Lines, Inc. V. Shute, Charles L. Knapp
Nevada Law Journal
No abstract provided.
Ashcroft V. Iqbal: Contempt For Rules, Statutes, The Constitution, And Elemental Fairness,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
Ashcroft V. Iqbal: Contempt For Rules, Statutes, The Constitution, And Elemental Fairness, Steve Subrin
Nevada Law Journal
No abstract provided.
Hustler V. Falwell: Worst Case In The History Of The World, Maybe The Universe,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
Hustler V. Falwell: Worst Case In The History Of The World, Maybe The Universe, John M. Kang
Nevada Law Journal
No abstract provided.
