Analysis Of Court Research Articles

Benign Race-Conscious Actions are Necessary to End Race Discrimination and Achieve Actual Equality

The decision in Parents Involved brings the Court very close to making strict scrutiny fatal in fact when considering benign, race-conscious actions implemented to address racial inequality. Justice Kennedy supplied the crucial fifth vote in favor of striking down the two school plans at issue in Parents Involved, and his opinion provides a reason to believe that carefully adopted, benign, race-conscious programs can survive Supreme Court review. However, such optimism must take account of the fact that Justice Kennedy has never voted to uphold a benign, race-conscious program and, therefore, race-conscious action by any institution is quite risky. Against this background, this Article makes two points. First, it is of critical importance that institutions, governmental and private, continue to pursue race-conscious actions aimed at promoting actual equality because the Constitution and laws prohibiting invidious race discrimination have, at best, resulted in formal or legal equality, not actual racial equality. Second, institutions willing to implement voluntary programs must do so in a manner that gives them the best chance of defending the programs in court. This requires the involvement of attorneys and experts at every step in the process, taking into account each aspect of the Court's strict scrutiny analysis.

Ignoring the Golden Principle of Charter Interpretation?

One consistent and disturbing trend since the birth of the Charter in 1982 is that race has been and continues to be, with a few notable exceptions, erased from the factual narratives presented to the Supreme Court of Canada and from the constitutional legal rules established by the Court in criminal procedure cases. Understanding the etiology of this erasing is not easy. In earlier pieces, the author has explored the role of trial and appellate lawyers. This paper focuses on principles of judicial review and the failure of the Supreme Court to consistently consider the impact of the constitutional rules it creates or interprets on Aboriginal and racialized communities. What makes the silence so problematic is that the Supreme Court gave itself the tool in 2001 to address part of the identified problem when it established an anti-racism principle of Charter interpretation in R. v. Golden, [2001] 3 S.C.R. 369. This paper seeks to address a number of questions focused on the legacy of Golden. What is the origin and content of the Golden principle of judicial review? What is the evidence from subsequent cases and academic commentary that this is indeed an accepted principle of constitutional interpretation? What cases from the 2007 Supreme Court term would have benefited from a critical race analysis? And, in particular, how would factoring in Golden have impacted the Court's analysis in R. v. Clayton, 2007 SCC 32? And finally, how should the Golden principle be applied in future cases?

Handgun Control, the Second Amendment, and Judicial Legislation in the D.C. Circuit: A Note on Parker v. District of Columbia

This note examines the wholly novel constitutional calculus used by the D.C. Circuit Court of Appeals in 2007 to strike down the District of Columbia's prohibition of civilian handgun possession. The central feature of the court's analysis of handguns was finding that modern handguns should be regarded as "lineal descendents" of militia era flintlocks, a finding that ignores the provable fact that the pistols of 1794 were not concealed or concealable weapons. Because concealability is the central danger of the modern handgun, this critical element in the opinion is an error both of historical analysis and constitutional reasoning.

Carhart, Constitutional Rights, and the Psychology of Regret

In Gonzales v. Carhart, the Supreme Court upheld the Partial Birth Abortion Ban Act of 2003. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Essay critiques the Court's analysis on the ground that it reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court's misunderstanding of this emotion, this Essay seeks to minimize the most significant risk created by the Carhart decision: that states will use the prospect of regret to justify additional constraints on the abortion right as well as other rights protected by the Constitution.

State Responsibility for Genocide: A Follow-Up

The article comments on the recent judgment of the International Court of Justice in the Genocide case, and discusses several issues which arise from it. It first briefly explains the several constraints under which the Court had to operate in deciding this case, most notably its limited jurisdiction, the legally very strict definition of genocide, and the litigation strategies of the two parties. The article then turns to examining two specific issues that the Court did not address in a fully satisfactory manner, namely the question of Serbia's responsibility for the acts of the Scorpions paramilitary group, as well as the Court's refusal to ask Serbia to produce certain confidential military documents. The Court's analysis of state responsibility for complicity in genocide and state responsibility for failing to prevent genocide is then addressed. The article finally criticizes the Court's reasoning when it comes to reparation and remedies.

Supreme Court Ruling Creates More Standing Room in the Already Heated Global Greenhouse Gas Movement

This article reviews the recent April 2, 2007 Supreme Court decision in the Massachusetts v. EPA, a highly important case regarding greenhouse gases. The case centered on the Court's review of EPA's denial of a petition to regulate greenhouse gas emissions from new motor vehicles. The Court required EPA to reconsider its denial. The Court found that. 1) the petitioners have standing to challenge EPA's denial of their petition; 2) the Court has the authority to review the denial of the petition; and 3) the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles. This article looks specifically at the Court's analysis of standing and jurisdiction by Justice Stevens, who wrote the Court's majority opinion, and two dissenting opinions by Justices Roberts and Scalia. Most interesting is how the closely divided Justices (5 to 4 decision) viewed, very differently, the issues regarding standing, the evidence that emissions from new motor vehicles are causing global warming and harm to Massachusetts, and the agency's judgment in denying the petition. Lastly, the article speculates on the impact of the decision and the current activities taking place at the state and regulated community level involving future regulation, litigation, and opportunities by various companies and coalitions to reduce greenhouse gas emissions. The article then presents five broad areas where companies that emit greenhouse gases should need to maintain or increase awareness to better position themselves in the global greenhouse gas movement. *CapAnalysis, LLC, is composed of multi-degreed senior consultants having backgrounds in environmental, economics, and accounting disciplines. John S. Wyckoff, Vice President of Environmental Consulting Services, and Mark McBride, Senior Manager, provide litigation support to attorneys and their clients in the area of environmental liabilities, and have over 45 years of combined experience in the environmental consulting field. Together they have written on various emerging environmental liabilities including asbestos, welding rods, and pharmaceutical and personal care products. Emily Coppedge, a senior consultant with an economics and statistics background, provides support for antitrust investigations involving mergers and acquisitions. The views expressed herein are the authors' and not necessarily those of CapAnalysis. For more information see www.capanalysis.com.

The Missing Theory of Variable Selection in the Economic Analysis of Tort Law

The Article argues that the economic analysis of tort law has yet to satisfactorily answer a critical threshold question: which of the many inputs that lead to an accident should be included in a court's liability analysis? As a result of this missing theory, the economic analysis of tort law provides indeterminate prescriptions. The Article shows how three separate areas of the literature can be seen as being about the general problem of which variables to include in the liability test and the tension between short- and long-run optima. The Article proposes an analytical framework - a continuum from short- to long-run - to understand the problem and show the way in which courts have crafted tort law doctrines to address the issue. Finally, the Article concludes that no satisfactory general theory is possible and that the optimal combination of liability rules will depend upon empirical questions about specific accident contexts.

New Federal Indian Law

Is federal Indian law dead? Despite a declining docket during the Rehnquist Court, the Supreme Court continued to take a disproportionately high number of Indian law cases - and deciding more than 75 percent of them against tribal interests. While many scholars suggest that the Court's conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, this Article asserts that the Court's reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear to arise more frequently in Indian law cases, decides those matters, and only then turns to the federal Indian law questions. Once the Court disposes of the important constitutional concern in its analysis, the Court's federal Indian law analysis is secondary and often driven by pragmatism. This Article concludes by arguing that advocates for tribal interests must locate an important constitutional concern or a significant pragmatic consideration that will drive the Court's analysis before they will turn around the win-loss ratio.

Elusive Sovereignty—People, Land and Frontiers of the Desert: The Case of the Western Sahara and the International Court of Justice

In putting the seminal advisory opinion of the International Court of Justice on Western Sahara in perspective, the Court's opinion should not be remembered essentially for its denial of local legal exceptionalism in the face of a universally accepted principle of international law (self-determination). Rather, it should stand out as a paradigm shift from a treaty-based approach to a domestic and administrative fact-finding determination of evidence of state sovereignty and territorial occupation. The Court's analysis of the Western Saharan tribes' relationships with Morocco, in particular, in light of its newly found positivism, is a vector of further evolution towards a self-contained definition of sovereignty whereby the international treaty body may no longer be seen as the sole authoritative source. The Court's approach ultimately points to the emergence of a principle that combines internal sovereignty (proof of effective display of state authority) and external sovereignty (based on recognition expressed in international treaties) as the basis for a determination of sovereignty, even though the Court upheld self-determination for Western Sahara. The Court's specific finding with regard to legal ties between Western Sahara and Morocco suggests a differentiated approach to a future political status of the Western Sahara's northern and southern region and to a settlement of the still alive dispute: neither partition, nor independence, or integration with Morocco, but a political dispensation that could accommodate the Court's finding of legal ties of allegiance to Morocco with regard to some northern tribes. The Court's conclusion that self-determination remains the overarching principle for any future determination of the political status of Western Sahara assigns an essentially flawed decolonisation practice and process, as defined by the United Nations. The indigenous peoples of the Atlantic seaboard of the Sahara desert exemplify a unique preservation of nomadic life and organisational structure that defies classification and integration by neighbouring, emerging states and Western liberal approaches alike. The genesis and legacy of the advisory opinion offer a rare insight into a three-dimensional civilisation clash of legal and political conceptions of space, borders and power, which has much bearing on key issues impinging on the now unfolding right of indigenous peoples.

Expert testimony in the silica cases: The fallacy of scientific objectivity—some observations

In 1993, the U.S. Supreme Court decided the case of Daubert v. Merrell Dow Pharmaceuticals establishing guidance for federal courts to permit the use of expert testimony under the Federal Rules of Evidence, specifically Rule 702. This and subsequent decisions require trial court judges to review expert testimony before a party puts expert testimony before the jury to assure that the expert's testimony is probative; i.e., that it is both reliable and relevant. When experts fail to follow accepted scientific methods and practices, the courts must reject the evidence as unreliable, ruling on such motions to exclude the experts’ testimony in the pre-trial stage. In the case of In re Silica , the court's non-technical analysis showed how common sense and good judgment can help evaluate the soundness of a technical expert's testimony.

Taxing Emotional Injury Recoveries: A Critical Analysis of Murphy V. Internal Revenue Service

Does Congress have the power under the United States Constitution to tax compensatory personal injury awards? Several months ago, the D.C. Circuit Court of Appeals said in Murphy v. Internal Revenue Service. The court theorized that Ms. Murphy's compensatory damages award did not constitute income, as understood by the enactors of the 16th Amendment, because the award merely made Ms. Murphy whole rather than increasing her wealth. This paper disputes virtually every aspect of the Murphy decision. The court made errors from the beginning in analyzing the statutory issues. While the court ultimately reached the correct preliminary conclusion - that Ms. Murphy's award was statutorily subject to taxation - the court's flawed analysis led it to consider the constitutionality of, and ultimately to hold unconstitutional, the wrong statute. Even though the court's flawed statutory analysis may have been harmless, its flawed constitutional analysis was not harmless. The court of appeals ignored the Constitution's original Article I grant to Congress of the power to impose taxes, as well as the first 100 years of judicial rulings recognizing Congress's plenary power under Article I to tax both property transactions and from human capital, such as wages. A proper review of the pre-16th Amendment law shows that Congress could tax Ms. Murphy's award under its original Article I powers even if the award was not income under the 16th Amendment. Moreover, there was no legitimate support in Murphy for the court's conclusion that the enactors of the 16th Amendment in 1913 did not intend for compensatory damages awards to be subject to taxation as Instead of citing contemporaneous evidence of intent, the court relied on two 1918 administrative rulings that did not even purport to consider the meaning of the 16th Amendment, and the court ignored earlier administrative positions, closer in time to the 16th amendment, treating such awards as taxable. Viewed in context, the 1918 administrative rulings were an attempt to comprehend then-recent Supreme Court decisions interpreting the meaning of the early taxing acts - interpretations that have long since been undermined by Supreme Court judicial opinions. The court of appeals took these administrative rulings out of their historical and factual context in an attempt to attribute to the enactors of the 16th amendment the conclusion it sought to reach - that Congress does not have the constitutional power to tax compensatory damages awards. The enactors of the 16th Amendment had a limited objective: to overturn the Supreme Court's 1895 decisions in Pollock v. Farmers Loan & Trust, which held that Congress lacked the power to impose taxes on generated by real and personal property without apportionment. It is folly to suggest that the enactors of the 16th Amendment had a clear opinion about whether non-physical emotional distress damages would constitute The enactors of the 16th Amendment left it to the courts to determine the meaning of income, and it took decades after the enactment of the 16th Amendment for the courts to develop a coherent definition of income.

THE INTERNATIONAL LAW OF HAMDAN V. RUMSFELD

On 29 June 2006 the United States Supreme Court issued a landmark opinion in the case of Hamdan v. Rumsfeld. The Court's essential holding, joined by five justices, found that the President lacked the authority to establish the military commissions which he had created by special order on 13 November 2001. The holding dealt the administration of George W. Bush a stunning defeat, and the very fact of the Court's striking down the military commissions confirmed an assertive, if slim, majority on the court in a time of national emergency and armed conflict. Most striking, the Court found that the so-called war on terror is governed by common Article 3 of the Geneva Conventions of 1949, a legal conclusion that, because of the legitimacy and prestige of the Court, neither Congress nor the President may easily avoid. The lasting jurisprudential impact of the decision, however, remains to be seen. For, on the one hand, Hamdan suggests that the military commissions simply lacked the authority conferred by a statute of Congress – and Congress has since remedied that gap. But, on the other hand, what impact will the Court's analysis of the laws of war have on the Commissions and future judicial assessments of their lawfulness?This essay examines the international legal contours of Hamdan. It does so as follows: First, it gives the background to the key legal decisions made in 2001 and 2002 to establish the military commissions and interpret the Geneva Conventions so as not to apply to Taliban and Al Qaeda detainees. Second, we explore the principal international legal elements of Hamdan. Third, we conclude with an epilogue of sorts, noting the aftermath of Hamdan in the Military Commissions Act of 2006 and reflecting on a few key points raised – and left unanswered – by Hamdan v. Rumsfeld.

Uniform mediation act gets its first high court validation

AbstractDetails on the New Jersey Supreme Court's analysis using the Uniform Mediation Act, the nation's first high court to address the recently proposed statute.

Exploring the Limits of International Law relating to the Use of Force in Self-defence

In the new millenium, the scope and limits of the use of force in international relations are still the subject of strong debate. Some legal scholars and state representatives favour an expanded interpretation of the right of self-defence which includes so-called pre-emptive and anticipatory self-defence. The International Court of Justice recently dealt with a dispute involving the use of force, allegedly in self-defence, in the Case Concerning Oil Platforms (Iran v. United States). This article explores the contribution of the judgment to international law on the use of force in self-defence. It discusses two issues: the relationship between self-defence and the protection of essential security interests of states, and the Court's analysis of the conditions for self-defence. We conclude that the ICJ has largely confirmed its existing jurisprudence in the field and avoided making any explicit, significant new contribution to the notion of self-defence. Nonetheless, we suggest that the Court's insistence on a narrow interpretation of certain conditions and silence on some controversial arguments advanced by the parties is prudent and more eloquent than words.

The Advisory Opinion and the Jewish Settlements

This paper argues that the ICJ did not need to discuss the legality of the settlements in order to examine the legality of the fence. Following this argument, until the settlement issue is resolved, Israel has an obligation to protect the settlers. Thus, even those parts of the fence that are intended to protect settlements, legality does not depend on the legality of the settlements. Moreover, this article argues that the Court's analysis of the settlements' legality is unsatisfactory: its interpretation of Article 49, paragraph 6, of the Fourth 1949 Geneva Convention, deviates to a certain extent, from the meaning of the same terms used in other paragraphs of Article 49, and as such a more in depth analysis by the Court was required.

Federalism and the Federal Prosecution of State and Local Corruption

The Article considers the application of federalism to determine the constitutionality of federal statutes used to prosecute corruption of state and local officials. The question of the federal government's role in enforcing criminal laws against state and local officials has become especially relevant since the Supreme Court's decisions in United States v. Lopez and United States v. Morrison, which invalidated federal statutes because they exceeded congressional authority to regulate in areas already subject to the police power of the states. The Court relied in part on the principle of federalism embedded in the constitutional structure to limit Congress' power to regulate certain types of conduct, specifically crimes of violence. Federal prosecution of state or local officials for crimes such as bribery raises questions about the propriety of one sovereign's seeking a criminal conviction of a person acting under the auspices of a different sovereign. Do prosecutors representing the federal government invade the province of the states, not only by prosecuting a crime already subject to prosecution by local authorities, but perhaps more importantly, by policing another government's representatives and employees? Invoking federalism as an independent principle to limit the federal government's authority to prosecute public corruption at the state and local level has a superficial appeal. Lopez and Morrison refer to a seemingly inviolable realm of state authority that appears to include control - perhaps to the exclusion of the federal government - over the prosecution of local crimes. The Court's federalism analysis gives the impression of separate spheres of control over criminal law, a scheme that relegates Congress to legislating only in those areas that are obviously national in scope. The notion of mutually exclusive spheres advanced in Lopez and Morrison - at least with respect to criminal statutes - overstates the role of federalism in demarcating the authority of the national and state governments. At least with regard to prosecutions involving corrupt officials, the authority of the federal government to prosecute such crimes advances rather than undermines the principle of federalism. The Constitution reflects the deep concern of the Founders with preventing corruption - what I term the Constitution's Anti-Corruption Legacy - a concern that supports congressional power to reach misconduct by officials at all levels of government for the misuse of public authority. My thesis is that the Anti-Corruption Legacy of the Constitution supports a broad view of the federal government's power to prosecute public corruption at all levels of government. Federal prosecution of corruption does not invade the sovereignty of the states because corruption undermines the balance established by federalism, and the national government must protect the integrity of both sides of the federalism equation. The constitutional design to eliminate corruption demonstrates the Framers' intent to guard against the threat to liberty from the misuse of public authority. My analysis rejects the position taken by some lower federal courts that federalism limits the authority of Congress or federal prosecutors to target corruption involving state and local officials. This issue will be argued before the Supreme Court this term in Sabri v. United States. The use of federalism to curtail corruption prosecutions is misguided because the individual liberty afforded by federalism is enhanced when the integrity of government is protected through federal prosecution. If the Constitution grants Congress the authority to adopt a statute that can be used to prosecute corruption, then state and local officials charged with corruption should not be empowered to argue that their conduct somehow falls outside the federal government's power because of some form of as-applied federalism.

Georgia v. Ashcroft and the Retrogression of Retrogression

Section 5 of the Voting Rights Act of 1965 forbids covered jurisdictions from making any changes in their election laws unless and until the laws first receive federal approval and places the burden of proving that the new law will lead to a retrogression with respect to minority voters' right to vote. The Supreme Court's 2003 decision in Georgia v. Ashcroft, 123 S. Ct. 2498 (2003), fundamentally altered the retrogression standard. Before Georgia v. Ashcroft, section 5 review of redistricting had focused consistently on how the proposed changes would affect the ability of minority voters to elect the candidates of their choice. In Georgia v. Ashcroft, however, the Court turned away from this consistent interpretation, and held that a plan could be precleared even if it reduced minority voters' ability to elect their preferred representatives, as long as it preserved a nebulously defined to participate in the political process, an opportunity that was not limited to winning elections. The Court held that the preclearance process should take into account such governance-related concerns as the overall partisan composition of a legislative body and the leadership positions within a legislative body held by minority elected officials and that maintaining or enhancing these factors might counterbalance decreasing minority voters' chances to elect the candidates of their choice. The Court's analysis was highly abstract, strikingly optimistic, and profoundly ahistorical. It improperly conflated three types of districts: safe districts; coalitional districts; and influence districts. Its understanding of coalitional and influence districts was further undercut by its failure to take into account the role of racial bloc voting. It provided no real guidance on how to analyze the tradeoff it seemed to permit. And it incorrectly equated the interests of minority voters with the interests of incumbent minority politicians, completely ignoring the presence of any conflict of interest between them. Ultimately, the Court's decision continued a trend towards a perverse asymmetry in voting-rights law. In Georgia v. Ashcroft, this asymmetry involves how questions of governance should inform the preclearance inquiry. In Presley v. Etowah County Commission, 502 U.S. 491 (1992), the Court had held that changes which affect only the distribution of power among officials are subject to section 5 because such changes have no direct relation to, or impact on, voting. But if decreasing or diminishing legislative positions of power for minority voters' representatives of choice cannot show retrogression, it seems perverse to treat maintaining or increasing such power as evidence of nonretrogression.

Attention All Students: Please Deposit Your Constitutional Rights at the Door

This Note argues that the Court should return to the fact-specific balancing test utilized in Vernonia and close the door to the further expansion of suspicionless drug testing in public schools. Part II of this Note will discuss the steady erosion of Fourth Amendment protections in the school context, as well as the expansion of drug testing outside the school setting. Part III will discuss the factual and procedural background of Pottawatomie and will focus on the Supreme Court's analysis and the dissent's application of the Vernonia standard to Pottawatomie's facts. Part IV will explore the problems and ramifications of the Pottawatomie decision. Part V will offer recommendations for what the Court should do in the future to protect the Fourth Amendment rights of students and prevent the further expansion of drug testing in schools. Part VI will summarize and conclude.

Opposing Excessive Use of Employer Bargaining Power in Mandatory Arbitration Agreements Through Collective Employee Actions

In this Article, I focus on how employees can respond and address excessive bargaining power issues when employers require individual employees to agree to arbitrate employment disputes as a condition of employment. My thesis is that individual employees can and should seek self-help through collective action to level the playing field for bargaining about arbitration. Furthermore, I contend that the best collective action would be for unions to play a major role in how individual employee disputes, including the various statutory and tortbased exceptions to the employment-at-will doctrine, are negotiated and resolved in arbitration. Section II of this Article reviews the Supreme Court's analysis of mandatory arbitration agreements involving statutory employment discrimination claims and its lack of concern for bargaining power in enforcing these agreements. Section III addresses the underlying concerns that led employers to excess when seeking mandatory arbitration agreements, and why that response now appears so insidious to many employee advocates. Section IV offers a solution to the dilemma of bargaining power excess engaged in by employers through mandatory arbitration-the use of collective employee activity with the assistance of unions. Finally, this Article concludes that creative uses of unions as assistants to groups of employees can chill employer excess and ultimately level the bargaining playing field with respect to decisions to arbitrate employment disputes.

What School Desegregation Teaches Affirmative Action

This article considers the claims of the dissenting Justices in Grutter v. Bollinger that the majority's approach to strict scrutiny was both novel and wrong. The article argues that the majority's decision to defer to education officials when applying strict scrutiny is far from new and not nearly as dangerous as claimed. In making this argument, the article examines affirmative action through two lenses rarely connected to affirmative action: school desegregation and federalism. The Grutter Court's strict scrutiny analysis is comparable in many respects to school desegregation jurisprudence, crafted in large part by the very Justices dissenting in Grutter. Similarly, federalism principles strongly supported elsewhere by the Grutter dissent provide some justification for Grutter's approach to strict scrutiny. Yet, school desegregation jurisprudence also demonstrates good reason to be cautious in applying federalism principles to Equal Protection Clause jurisprudence. This Article ultimately comes to support Grutter's notion of deference. The judiciary certainly has limited expertise in educational policy and limited success in affecting social change. As a practical matter, defendants must have some authority in constitutional decision making.