Reverse Incorporation Of State Constitutional Law,
2011
Duke Law School
Reverse Incorporation Of State Constitutional Law, Joseph Blocher
Faculty Scholarship
State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to …
Legal Integration In The Andes: Law-Making By The Andean Tribunal Of Justice,
2011
Duke Law School
Legal Integration In The Andes: Law-Making By The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter
Faculty Scholarship
The Andean Tribunal of Justice (ATJ) is a copy of the European Court of Justice (ECJ), and the third most active international court. This article reviews our findings based on an original coding of all ATJ preliminary rulings from 1984 to 2007, and over forty interviews in the region. We then compare Andean and European jurisprudence in three key areas: whether the tribunals treat the founding integration treaties as constitutions for their respective communities, whether the ATJ and ECJ have implied powers for community institutions that are not expressly enumerated in the founding treaties, and how the tribunals conceive of …
Global Problems In Domestic Courts,
2011
Duke Law School
Global Problems In Domestic Courts, Ralf Michaels
Faculty Scholarship
We face an increasing number of problems that are essentially global in nature because they affect the world in its entirety: global cartels, climate change, crimes against humanity; to name a few. These problems require world courts, yet world courts in the institutional sense are largely lacking. Hence, domestic courts must function, effectively, as world courts. Given the unlikelihood of effective world courts in the future, our challenge is to establish under what conditions domestic courts can play this role of world courts effectively and legitimately.
What State Constitutional Law Can Tell Us About The Federal Constitution,
2011
Duke Law School
What State Constitutional Law Can Tell Us About The Federal Constitution, Joseph Blocher
Faculty Scholarship
Courts and scholars have long sought to illuminate the relationship between state and federal constitutional law. Yet their attention, like the relationship itself, has largely been one-sided: State courts have consistently adopted federal constitutional law as their own, and scholars have attempted to illuminate why this is, and why it should or should not be so. By contrast, federal courts tend not to look to state constitutional law, even for persuasive authority. Nor have scholars argued at any length that federal courts can or should look to state constitutional law for guidance in answering the many constitutional questions common to …
Who’S Afraid Of The Federal Circuit?,
2011
Duke Law School
Who’S Afraid Of The Federal Circuit?, Arti K. Rai
Faculty Scholarship
In this brief Essay, Professor Rai responds to Professor Jonathan Masur's Yale Law Journal article "Patent Inflation." Professor Masur's argument rests on the assumption that U.S. Patent and Trademark Office ("PTO") behavior is determined almost entirely by a desire to avoid reversal by the Federal Circuit. Although the PTO is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction. The PTO is influenced not only by the Federal Circuit …
Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law,
2011
Duke Law School
Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell
Faculty Scholarship
Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects …
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence,
2011
Duke Law School
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Faculty Scholarship
No abstract provided.
The Conflicted Assumptions Of Modern Constitutional Law,
2011
Duke Law School
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
Flying Blind: The Lack Of Uniformity In Federal Pleading After Twombly And Iqbal, 44 J. Marshall L. Rev. 485 (2011),
2011
UIC School of Law
Flying Blind: The Lack Of Uniformity In Federal Pleading After Twombly And Iqbal, 44 J. Marshall L. Rev. 485 (2011), Ryan Charlson
UIC Law Review
No abstract provided.
The Case For Rebalancing Antitrust And Regulation,
2011
Georgetown University
The Case For Rebalancing Antitrust And Regulation, Howard A. Shelanski
Michigan Law Review
The continued growth of forensic DNA databases has brought about greater interest in a search method known as "familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …
Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J.L. & Soc. Change 53 (2011),
2011
John Marshall Law School
Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J.L. & Soc. Change 53 (2011), Sonia Bychkov Green
UIC Law Open Access Faculty Scholarship
No abstract provided.
Rid Of Habeas Corpus - How Ineffective Assistance Of Counsel Has Endangered Access To The Writ Of Habeas Corpus And What The Supreme Court Can Do In Maples And Martinez To Restore It, 45 Creighton L. Rev. 185 (2011),
2011
John Marshall Law School
Rid Of Habeas Corpus - How Ineffective Assistance Of Counsel Has Endangered Access To The Writ Of Habeas Corpus And What The Supreme Court Can Do In Maples And Martinez To Restore It, 45 Creighton L. Rev. 185 (2011), Hugh Mundy
UIC Law Open Access Faculty Scholarship
No abstract provided.
How Leadership In International Criminal Law Is Shifting From The United States To Europe And Asia: An Analysis Of Spending On And Contributions To International Criminal Courts, 55 St. Louis U. L.J. 953 (2011),
2011
The John Marshall Law School, Chicago
How Leadership In International Criminal Law Is Shifting From The United States To Europe And Asia: An Analysis Of Spending On And Contributions To International Criminal Courts, 55 St. Louis U. L.J. 953 (2011), Stuart K. Ford
UIC Law Open Access Faculty Scholarship
No abstract provided.
The Freedom Of Information Act Trial, 61 Am. U. L. Rev. 217 (2011),
2011
UIC School of Law
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 …
The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis,
2011
Washington & Lee University School of Law
The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer
Georgia Law Review
The Third Branch of our federal government has
traditionally been viewed as the least of the three in
terms of the scope of its power and authority. This
view finds validation when one considers the
extensive authority that Congress has been permitted
to exercise over the Federal Judiciary. From the
beginning, Congress has understood itself to possess
the authority to limit the jurisdiction of inferior
federal courts. The Supreme Court has acquiesced to
this understanding of congressional authority
without much thought or explanation.
It may be possible, however, to imagine a more
robust vision of the Judicial Power through closer …
Comparing And Contrasting The Constitutional Approaches Of Justice Scalia And Justice Breyer Through The Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association,
2011
Claremont McKenna College
Comparing And Contrasting The Constitutional Approaches Of Justice Scalia And Justice Breyer Through The Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association, Katherine E. Moran Ms.
CMC Senior Theses
The aim of this thesis is to explore the differences and similarities between Justice Antonin Scalia’s textualist approach to interpreting the Constitution and Justice Stephen Breyer’s Living Constitution approach (also called the evolutionist approach) by applying these disparate legal theories to Schwarzenegger v Entertainment Merchants Association, a case currently pending before the Supreme Court whose resolution centers on the interpretation of the First Amendment. The textualist approach relies primarily on interpreting the original meaning of the text of the Constitution, and attempting to decide cases in a way that is faithful to an amendment’s words as written (Rossum et …
Judicial Interference With Effective Assistance Of Counsel,
2011
Elisabeth Haub School of Law at Pace University
Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
A lawyer’s ineffective representation of a client may be attributable to a lawyer’s own personal failings. However, impairment of the right to effective assistance of counsel may also come from a trial judge’s conduct, and can takes many forms, and occur in varying circumstances. It is therefore difficult to formulate clear principles to cover all of the various situations in which a judge can undermine effective representation. The Borukhova and Mallayev case is only the most recent illustration of the way a ruling of a judge – forcing the lawyer to sum up his case without giving the lawyer adequate …
Comments On Paul R. Michel's Contributions To Justice, 10 J. Marshall Rev. Intell. Prop. L. 279 (2011),
2011
UIC School of Law
Comments On Paul R. Michel's Contributions To Justice, 10 J. Marshall Rev. Intell. Prop. L. 279 (2011), James F. Holderman
UIC Review of Intellectual Property Law
No abstract provided.
Chief Judge Michel's Current And Future Contributions To Improving U.S. Intellectual Property Rights, 10 J. Marshall Rev. Intell. Prop. L. 299 (2011),
2011
UIC School of Law
Chief Judge Michel's Current And Future Contributions To Improving U.S. Intellectual Property Rights, 10 J. Marshall Rev. Intell. Prop. L. 299 (2011), Herbert C. Wamsley
UIC Review of Intellectual Property Law
No abstract provided.
Veterans Benefits In 2010: A New Dialogue Between The Supreme Court And The Federal Circuit,
2011
University of Florida Levin College of Law
Veterans Benefits In 2010: A New Dialogue Between The Supreme Court And The Federal Circuit, Paul R. Gugliuzza
American University Law Review
No abstract provided.
