The Doctrinal Side Of Majority Will,
2010
University of Richmond
The Doctrinal Side Of Majority Will, Corinna Barrett Lain
Law Faculty Publications
What is the Supreme Court's relationship with public opinion? Barry Friedman's answer in The Will of the People scours some 200 years of history to provide a distinctly political view of the Court, and the story he tells is compelling. Yet it is also incomplete. The Will of the People presents a largely external account of the law; it sees the influence of majority will as a force that moves outside the jurisprudence we lawyers spend so much of our time researching, writing, and talking about. By this account, there is what the Justices say is driving their decisionmaking-legal …
The Functions Of Ethical Originalism,
2010
University of Michigan Law School
The Functions Of Ethical Originalism, Richard A. Primus
Articles
Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …
Against Secret Regulation: Why And How We Should End The Practical Obscurity Of Injunctions And Consent Decrees (Symposium: Rising Stars: A New Generation Of Scholars Looks At Civil Justice),
2010
University of Michigan Law School
Against Secret Regulation: Why And How We Should End The Practical Obscurity Of Injunctions And Consent Decrees (Symposium: Rising Stars: A New Generation Of Scholars Looks At Civil Justice), Margo Schlanger
Articles
Every year, federal and state courts put in place orders that regulate the prospective operations of certainly hundreds and probably thousands of large government and private enterprises. Injunctions and injunction-like settlement agreements-whether styled consent decrees, settlements, conditional dismissals, or some other more creative title-bind the activities of employers, polluters, competitors, lenders, creditors, property holders, schools, housing authorities, police departments, jails, prisons, nursing homes, and many others. The types of law underlying these cases multiply just as readily: consumer lending, environmental, employment, anti-discrimination, education, constitutional, and so on. Injunctive orders, whether reached by litigation or on consent, suffuse the regulatory environment, …
Article I, Article Iii, And The Limits Of Enumeration,
2010
University of Michigan Law School
Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld
Articles
Article I, Section 8 and Article Ill, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the …
Prosecution Of Genocide V. The Fair Trial Principle: Comments On Brown And Others V. The Government Of Rwanda And The Uk Secretary Of State For The Home Department,
2010
Washington and Lee University School of Law
Prosecution Of Genocide V. The Fair Trial Principle: Comments On Brown And Others V. The Government Of Rwanda And The Uk Secretary Of State For The Home Department, Mark A. Drumbl
Scholarly Articles
The article examines the 2009 decision of the United Kingdom High Court of Justice to deny the extradition of four genocide suspects to Rwanda owing to fair trial and partiality concerns with the Rwandan judiciary. It begins by reviewing the relevant UK extradition legislation, the pertinent facts and the rationale for the judgment and proceeds to situate this decision within the broader transnational judicial scepticism about the extradition or transfer of genocide suspects to Rwanda. While this scepticism arises from valid concerns regarding the contemporary state of human rights in Rwanda, it nevertheless contributes to the perpetuation of impunity surrounding …
Compelling The Courts To Question Gonzalez V. O Centro: A Public Harms Approach To Free Exercise Analysis,
2010
University of Richmond
Compelling The Courts To Question Gonzalez V. O Centro: A Public Harms Approach To Free Exercise Analysis, Ari B. Fontecchio
Richmond Public Interest Law Review
Part I will set forth the analytical framework established by the Supreme Court in the RFRA and RLUIPA contexts before 0 Centro." This Part will provide a brief background to RFRA and RLUIPA and set forth the definition of "compelling interest" before 0 Centro. Part II will focus on the decision in 0 Centro; specifically, how the Supreme Court's redefinition of "compelling interest" significantly elevates the government's burden. Part III will compare the government's chance of winning on a "compelling interest" argument before 0 Centro" with the chance of winning in its wake. This Part will discuss the merits, flaws, …
Kesalahan-Kesalahan Matrimoni Dalam Kes Perceraian Di Luar Mahkamah Dan Tanpa Kebenaran Mahkamah : Kajian Di Mahkamah Syariah Negeri Selangor Darul Ehsan.,
2010
University of Malaya
Kesalahan-Kesalahan Matrimoni Dalam Kes Perceraian Di Luar Mahkamah Dan Tanpa Kebenaran Mahkamah : Kajian Di Mahkamah Syariah Negeri Selangor Darul Ehsan., Mazlan Abd Manan
Student Works (2010-2019)
There is no specific nas (justification) provided in the Al-Quran and the Al-Sunnah with regards to divorce outside the Court without due permission. However, over the years this ongoing problem has led the scholars to view their justifications on the matter. In view of this, the purpose of this dissertation is to feature the study on divorce cases outside Court and without the Court’s permission and its implementation to Malaysian law specifically in reference to cases from the Syariah Courts in Selangor. The Selangor Islamic Family Law Enactment 1984 for instance, as proposed by the Syariah Court has come up …
Rethinking Summary Judgment: Revamp Required?.,
2010
Universiti Malaya
Rethinking Summary Judgment: Revamp Required?., Mak Mun Luan
Student Works (2010-2019)
Summary judgment has been touted as an effective tool for disposing of litigations in timely and cost effective manners, as disputes between litigants may be resolved without the need of full trials and the usual pre-trial processes associated with civil litigation. However, the tension between the potential for this procedure to produce a final judgment versus the litigants' entitlements to full trials, illustrates how reform in this procedure may be crucial. This paper sought to outline the current laws with regards to summary judgment in Malaysia and explore ways in which it may be revamped. For comparison, summary judgment procedures …
Judges And Their Editors,
2010
University of Missouri School of Law
Judges And Their Editors, Douglas E. Abrams
Faculty Publications
This essay discusses the roles of personal law clerks, central staff clerks, and Reporters of Decisions in editing judges’ opinions at the drafting stage. “The overarching lesson [is] that by submerging pride of authorship during an opinion’s gestation and by weighing editorial input with an open mind, judges secure in their craft advance the interests of justice.” The essay also discusses the constraints imposed by the ABA Model Code of Judicial Conduct on the circle of persons a judge may consult without giving the parties advance notice. The essay is adapted from Prof. Abrams’ address to the international meeting of …
Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule,
2010
University of Missouri School of Law
Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg
Faculty Publications
In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …
Prosper Team, Inc. V. Workforce Appeals Board, Department Of Workforce Services, And Matt Davis : Brief Of Petitioner,
2010
Brigham Young University Law School
Prosper Team, Inc. V. Workforce Appeals Board, Department Of Workforce Services, And Matt Davis : Brief Of Petitioner, Utah Court Of Appeals
Utah Court of Appeals Briefs (2007– 2019)
PETITION FOR REVIEW FROM THE SEPTEMBER 30, 2010 DECISION OF THE UTAH WORKFORCE APPEALS BOARD, DEPARTMENT OF WORKFORCE SERVICES' AWARD OF UNEMPLOYMENT BENEFITS
The Application Of Network Analysis To The Study Of Trial Courts,
2010
University of New Orleans
The Application Of Network Analysis To The Study Of Trial Courts, Salmon A. Shomade, Roger E. Hartley
Political Science Faculty Publications
In the late 1960s, scholars began studying trial courts as organizations. Since the last large wave of these studies in the 1990s, there have been reforms that purport to alter state court institutions. The literature on trial courts has not yet addressed how reforms, like specialized courts, alter trial courts as organizations. Studies of trial courts could also profit from the application of other methods for analyzing organizations. This article explores the use of network analysis to examine the organizational linkages and structure of trial courts. After reviewing the literature on trial courts and recent court reforms, we make a …
Error Correction,
2010
Marquette University Law School
Liberty Lost: The Moral Case For Marijuana Law Reform,
2010
Suffolk University
Liberty Lost: The Moral Case For Marijuana Law Reform, Eric Blumenson, Eva Nilsen
Indiana Law Journal
Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This Essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700, 000 people are arrested annually for simple marijuana possession, a small but significant proportion of the 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. We put forward two arguments corresponding to the two distinct liberty concerns implicated by laws …
Engagement's Possibilities And Limits As A Socioeconomic Rights Remedy,
2010
Cleveland State University
Engagement's Possibilities And Limits As A Socioeconomic Rights Remedy, Brian E. Ray
Law Faculty Articles and Essays
This Article first analyzes the Constitutional Court of South Africa's three engagement decisions. It then divides engagement into two different categories--litigation engagement and political engagement--and offers suggestions for transforming the process into a more effective remedy in each category. Drawing on the work of Charles Epp, this Article argues that political engagement, if structured correctly, offers the greatest potential as an effective mechanism for enforcing socioeconomic rights. Realization of that potential will require a sustained commitment by civil society organizations active in socioeconomic rights issues and a shift from using engagement as a litigation tactic to using it as a …
Residents Of Joe Slovo Community V Thubelisha Homes And Others: The Two Faces Of Engagement,
2010
Cleveland State University
Residents Of Joe Slovo Community V Thubelisha Homes And Others: The Two Faces Of Engagement, Brian E. Ray
Law Faculty Articles and Essays
The Constitutional Court of South Africa's "engagement remedy," at its core, is a simple requirement that government consult with residents before evicting them, as engagement offers a creative and flexible tool for advocates of socio-economic rights to enforce these provisions through both political and legal channels. Absent adequate court oversight, engagement can easily turn into nothing more than a requirement that government inform residents of its redevelopment plans. The Constitutional Court in Joe Slovo recognised these two ‘faces' of engagement and strengthened the remedy by adding components that increase the transparency of the process and enhance court control. This note …
Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute,
2010
Thomas Goode Jones School of Law, Faulkner University
Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute, Matt A. Vega
Michigan Journal of International Law
In the process of applying the ATS to foreign bribery, this Article will examine several unresolved issues surrounding this statutory grant. It will seek to (1) determine what constitutes a "violation of the law of nations," (2) refute the proposition that private defendants may be prosecuted under the ATS for only the most shocking and egregious jus cogens violations, (3) determine when and to what extent state action is required in ATS litigation, and (4) examine the limitations of the fundamental principles of international law on ATS litigation.
The Use Of Article 31(3)(C) Of The Vclt In The Case Law Of The Ecthr: An Effective Anti-Fragmentation Tool Or A Selective Loophole For The Reinforcement Of Human Rights Teleology?,
2010
University of Michigan Law School
The Use Of Article 31(3)(C) Of The Vclt In The Case Law Of The Ecthr: An Effective Anti-Fragmentation Tool Or A Selective Loophole For The Reinforcement Of Human Rights Teleology?, Vassilis P. Tzevelekos
Michigan Journal of International Law
In Part I the Article will briefly introduce the question of the fragmentation of international law, and will more extensively delineate the role that the ILC attributed to Article 31(3)(c) and the ILC's expectations regarding its success in this role. Next, Part II will give an overview of the special elements of the ECHR socio-normative environment, which gave rise to the case law into which Article 31(3)(c) came into force. The Article will argue that, in addition to benefiting from the very special nature of the ECHR, the Strasbourg Court also has a significant number of interpretative tools that allow …
A Twilight Zone No More: The Arkansas Supreme Court Provides Tort Reform Drafting Tips While Distancing Itself From Deference To The General Assembly In Johnson V. Rockwell Automation, Inc.,
2010
University of Arkansas Little Rock
A Twilight Zone No More: The Arkansas Supreme Court Provides Tort Reform Drafting Tips While Distancing Itself From Deference To The General Assembly In Johnson V. Rockwell Automation, Inc., Jodie L. Hill
University of Arkansas at Little Rock Law Review
No abstract provided.
International Criminal Courts And The Making Of Public International Law: New Roles For International Organizations And Individuals,
2010
University of Arkansas at Little Rock William H. Bowen School of Law
International Criminal Courts And The Making Of Public International Law: New Roles For International Organizations And Individuals, Kenneth S. Gallant
Law Faculty Scholarship
Judicial decisions of the International Criminal Court and other international criminal tribunals now serve as instances of practice and statements of opinio juris for the formation of customary international criminal law and customary international human rights law related to criminal law and procedure. In these areas of law and others, they are no longer “subsidiary” sources as that word is used in the International Court of Justice Statute, Art. 38. In the same fields of customary international law, other binding acts of international organizations, such as the UN Security Council, are also used as practice, and the statements of these …
