Public Opinion And State Supreme Courts,
2010
William & Mary Law School
Public Opinion And State Supreme Courts, Neal Devins, Nicole Mansker
Faculty Publications
No abstract provided.
Integration Matters: Rethinking The Architecture Of International Dispute Resolution,
2010
University of Colorado Law School
Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain
Publications
International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …
Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges,
2010
University of Colorado Law School
Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff
Publications
This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …
Talk Loudly And Carry A Small Stick: The Supreme Court And Enemy Combatants,
2010
William & Mary Law School
Talk Loudly And Carry A Small Stick: The Supreme Court And Enemy Combatants, Neal Devins
Faculty Publications
No abstract provided.
Nationwide Personal Jurisdiction For Our Federal Courts,
2010
William & Mary Law School
Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer
Faculty Publications
Rule 4 of the Federal Rules of Civil Procedure limits the territorial jurisdiction of federal district courts to that of the courts of their host states.T his limitation is a voluntary rather than obligatory restriction, given district courts' status as courts of the national sovereign. Although there are sound policy reasons for limiting the jurisdictional reach of our federal courts in this manner, the limitation delivers little benefit from a judicial administration or even a fairness perspective, and ultimately costs more to implement than is gained in return. The rule should be amended to provide that district courts have personal …
The Ninth Circuit Court Of Appeals' Enforcement Of The Fair Labor Standards Act In Solis V. Matheson: A Discussion Of Laws Of General Applicability And Their Impact On Tribal Sovereignty And Independence,
2010
University of Oklahoma College of Law
The Ninth Circuit Court Of Appeals' Enforcement Of The Fair Labor Standards Act In Solis V. Matheson: A Discussion Of Laws Of General Applicability And Their Impact On Tribal Sovereignty And Independence, Doug Nix
American Indian Law Review
No abstract provided.
Displacing The Judiciary: Customary Law And The Threat Of A Defensive Tribal Council: A Book Review Of Raymond D. Austin, Navajo Courts And Navajo Common Law: A Tradition Of Tribal Self-Governance (2009),
2010
University of Oklahoma College of Law
Displacing The Judiciary: Customary Law And The Threat Of A Defensive Tribal Council: A Book Review Of Raymond D. Austin, Navajo Courts And Navajo Common Law: A Tradition Of Tribal Self-Governance (2009), Ezra Rosser
American Indian Law Review
No abstract provided.
Federal Preemption: A Roadmap For The Application Of Tribal Law In State Courts,
2010
University of Oklahoma College of Law
Federal Preemption: A Roadmap For The Application Of Tribal Law In State Courts, Jackie Gardina
American Indian Law Review
This article contends that state courts are not necessarily free to apply state law when the courts are exercising concurrent adjudicative jurisdiction with tribal courts. Instead, Indian law principles of preemption direct state courts to apply tribal law in certain cases. A guiding principle emerges from the preemption analysis: if a tribe has legislative jurisdication over the dispute, tribal law must ordinarily be applied. In these instances, a state's laws, including its choice-of-law rules, are preempted by federal common law because their application interferes with the federal government's and the tribes' interest in promoting tribal self-government, including the tribes' ability …
The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination,
2010
University of Oklahoma College of Law
The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination, Aaron F.W. Meek
American Indian Law Review
No abstract provided.
Defining Indian Status For The Purpose Of Federal Criminal Jurisdiction,
2010
University of Oklahoma College of Law
Defining Indian Status For The Purpose Of Federal Criminal Jurisdiction, Katharine C. Oakley
American Indian Law Review
No abstract provided.
Penumbral Thinking Revisited: Metaphor In Legal Argumentation,
2010
Seattle University School of Law
Penumbral Thinking Revisited: Metaphor In Legal Argumentation, Chris Rideout
Faculty Articles
In the modern jurisprudence of the United States Supreme Court, the controversy over the place of metaphor came directly into the spotlight in Griswold v. Connecticut. Justice Douglas, writing for the majority and relying in part on metaphoric reasoning for his argument, located a right to privacy in the penumbral area formed by emanations from specific guarantees in the Bill of Rights. The various opinions in Griswold represent a divide regarding the place of metaphoric reasoning in legal argument. Justice Douglas employs metaphoric reasoning, while several of his fellow justices either avoid it or reject it. Because the case has …
When A Company Confesses,
2010
University of Michigan Law School
When A Company Confesses, Christopher Jackson
Michigan Law Review
Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …
Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal,
2010
University of Michigan Law School
Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, Michael R. Huston
Michigan Law Review
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court changed the rhetoric of the federal pleading system. Those decisions have been decried by members of the bar, scholars, and legislators as judicial activism and a rewriting of the Federal Rules of Civil Procedure. Such criticism has led members of both houses of Congress to introduce legislation to overrule the decisions and return to some variation of the "notice pleading" regime that existed before Twombly. This Note argues that both of the current proposals to overrule Twombly and Iqbal should be rejected. Although the bills take different …
Structure And Precedent,
2010
Willamette University College of Law
Structure And Precedent, Jeffrey C. Dobbins
Michigan Law Review
The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, …
Reply To Richard A. Leo And Jon B. Gould,
2010
University of Michigan Law School
Reply To Richard A. Leo And Jon B. Gould, Samuel R. Gross, Barbara O'Brien
Articles
The following is a letter to the Ohio State Journal of Criminal Law received from Professors Samuel Gross and Barbara O'Brien, responding to an article published in the Journal in Fall 2009 by Professors Richard Leo and Jon Gould. This letter is followed by a reply from Professors Leo and Gould. Professors Gross and O'Brien did not see the reply prior to the Journal going to press. As we have indicated before, we welcome letters to the Journal from readers on any topic covered in a prior issue. - Editors
Administering The Second Amendment: Law, Politics, And Taxonomy ,
2010
Fordham University School of Law
Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson
Faculty Scholarship
This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be …
A Decision-Theoretic Rule Of Reason For Minimum Resale Price Maintenance,
2010
University of Missouri School of Law
A Decision-Theoretic Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert
Faculty Publications
This article evaluates these approaches from the perspective of decision theory and, finding each lacking, proposes an alternative approach to structuring the rule of reason governing RPM. Part II sets forth the decision-theoretic perspective, which seeks to maximize the net benefits of liability rules by minimizing the sum of decision and error costs. Part III then evaluates, from the standpoint of decision theory, the proposed approaches to evaluating instances of RPM. Part IV proposes an alternative evaluative approach that is more consistent with decision theory’s insights.
China's Judicial System And Judicial Reform,
2010
University of Michigan Law School
China's Judicial System And Judicial Reform, Nicholas C. Howson
Other Publications
The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …
A Conversation About Problem-Solving Courts: Take 2,
2010
Columbia Law School
A Conversation About Problem-Solving Courts: Take 2, Jane M. Spinak
Faculty Scholarship
The University of Maryland Law Journal of Race, Religion, Gender and Class symposium on problem-solving courts surfaced a wide array of issues on the meaning and practices of these courts. My prepared remarks at the symposium addressed the first issue discussed in this article: the potential disparate impact of problem-solving courts on minority families who are disproportionately affected by these court processes. The second part of the article draws on the discussion during the symposium to reflect on the difficulty supporters and critics of the problem-solving court movement have in talking and listening to each other.
The Politics Of Nature: Climate Change, Environmental Law, And Democracy,
2010
Columbia Law School
The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy
Faculty Scholarship
Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …
