Federal Judicial Research Articles

The best interests of the minor as a principle of interpretation in Mexican civil law

From a doctrinal perspective and based on a case study, this article analyzes the way in which the best interests of the minor has become an important principle of interpretation in Mexico’s legal life. This is observed in the evaluation of different situations in which the federal Judicial Branch has resolved conflicts dealing with fundamental rights, taking into account family law-related issues. Moreover, there are important cases that neither the state nor local courts have resolved as they specifically deal with the protection of minors in the printed media. Therefore, as of the constitutionalization of Civil Law, the traditional form of this particular branch of law has been revised, considering the rescue of the person and in compliance with the international treaties that Mexico has signed, as a form of legal argument.

The American election 2012: contexts and consequences

Introduction - The American Election 2012: Contexts and Consequences R. Ward Holder and Peter B. Josephson PART I: THE STATE OF THE PARTIES IN 2012 1. The Consequences of Party Reform in the 21st Century Terri Susan Fine 2. Closed for Repairs So It Can Reengage with the World: Prospects for Reforming the Republican Party Douglas M. Brattebo 3. The 2012 Elections and the Southern Roots of Polarized Politics: The Continuing Power of Southern Conservatives After Obama's Reelection Allen Neal 4. The Ever-Widening Gap: Gender and the 2012 Presidential Election Derya Rix 5. Data, America's Shifting Landscape, and the Meaning of 2012 Dante Chinni PART II: EMERGING STRATEGIES IN THE 2012 CAMPAIGN 6. Are Super PACs Really Arms of Political Parties? A Study of Coordination Dante Scala 7. Economic Appeals in Unequal Communities: Stump Speeches in the 2012 Presidential Election Christopher B. Chapp 8. Casualties of the Ground War: Personal Contacting in 2012 and Its Discontents Robert Boatright 9. Unfriendly to Women? Female Politicians, Rape Comments and the GOP in 2012 Jennifer Lucas and Tauna Sisco 10. Weighing In or Waiting: When, Whether, and Whom Republican Officeholders Endorsed in 2012 Kevin J. Parsneau and Christopher Galdieri PART III: IMPLICATIONS OF THE 2012 ELECTION: DOMESTIC AND FOREIGN POLICIES 11. The Past as Prologue: Obama, Health Care and the Election of 2012 Anne Marie Cammisa 12. Healthcare Spending and Prevention within the Affordable Care Act: Contrasting the Public Health and Medical Models of Prevention T. Lucas Hollar 13. Natural Uncertainty: Reconciling the Contrasting Environmental Goals of America's First Natural Security President - Barack Obama Mark O'Gorman 14. Federal Judicial Vacancies: Obama's Record and Prospects Susan Siggelakis 15. The Politics of Presidential Foreign Policy: Unilateral Authority and the Role of Congress Brandon Prins and Bryan Marshall 16. Decline or Not: America's Continued Primacy in the Persian Gulf? Wesley Renfro and Marc O'Reilly PART IV: FAITH AND POLITICS: 2012 AND BEYOND 17. Courting the Catholic Vote: Obama, Romney, and the U.S. Catholic Bishops in the 2012 Presidential Election Richard J. Powell and Mark D. Brewer 18. Catholic Vice Presidential Candidates and the Politics of Abortion: The 2012 Debate in Context Angela Senander 19. What Romney's Nomination Means for Mormons and the Presidency Luke Perry 20. The Liberal State and the Gay Marriage Debate: Lessons from American Catholic Thought Aaron Taylor 21. Obama and the Common Good Daniel Daly 22. The Rise of the Liberal Protestant? Faith and Politics in the Obama Administration R. Ward Holder and Peter B. Josephson

Lawyers Need Law: Judicial Federalism, State Courts, and Lawyers in Search and Seizure Cases

The progress of judicial federalism, the independent interpretation of state constitutions, has generally been a stunted progress. This article explores how lawyers have contributed to the development of state constitutional rights law in the search and seizure context. Through a comparative study of lawyers in New York, Ohio, Oregon, and Washington, I argue that the ideational support provided by lawyers in the form of constitutional arguments has varied widely across the states in response to the legal signals sent by their high courts and the U.S. Supreme Court. In essence, the argument is that lawyers need law and in the area of judicial federalism have largely waited for their state courts to provide some measure of leadership.

The Centralisation of Judicial Power within the Australian Federal System

This article considers the patterns of centralisation within the federal judicial system. While centralisation of legislative, executive and fiscal power within the federal system has been well documented, the architecture of judicial federalism has been the subject of less attention. The article, first, seeks to show that principles derived from Chapter III of the Constitution have, on the whole, exhibited broadly similar centralising characteristics and exerted centralising effects, and, secondly, offers explanations for this centralisation.

The Centralisation of Judicial Power within the Australian Federal System

This article considers the patterns of centralisation within the federal judicial system. While centralisation of legislative, executive and fiscal power within the federal system has been well documented, the architecture of judicial federalism has been the subject of less attention. The article, first, seeks to show that principles derived from Chapter III of the Constitution have, on the whole, exhibited broadly similar centralising characteristics and exerted centralising effects, and, secondly, offers explanations for this centralisation.

Judicial Federalism and the Future of Federal Environmental Regulation

This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes it likely that the Supreme Court will revisit the constitutional limitations on the Spending Clause, and this could have a substantial impact on federal environmental regulation, as some federal environmental provisions exceed even the highly deferential Spending Clause standard outlined in South Dakota v. Dole. (4) Judicially enforced limitations on federal regulatory authority do not necessarily translate into limitations on environmental protection. The federal government will retain substantial - although not unlimited - authority to advance environmental protection. Where federal authority is constrained, state and local governments and non-governmental entities will retrain their ability to address many environmental concerns.

Splits of Authority in State Constitutional Law and Interstate Citation Patterns: The Explanatory Weakness of Interstate Dialogue

In this paper, I examine the patterns of interstate constitutional citation (how often state courts cite each other’s constitutions) and chart the results. Finding that patterns of citation do not correlate to state constitutional splits and only weakly correlate to regional splits, I conclude that if interstate patterns of constitutional citation exist at all, they are in a state of infancy and are not a strong candidate for an explanatory theory of state constitutional decision-making or judicial federalism.

Federal Judicial Center

Federal Judicial Center

Can the Dark Arts of the Dismal Science Shed Light on the Empirical Reality of Civil Procedure?

Litigation involves human beings, who are likely to be motivated to pursue their interests as they understand them. Empirical civil procedure researchers must take this fact seriously if we are to adequately characterize the effects of policy changes. To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research. I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover important empirical relationships by disregarding behavioral aspects of human action.I then show how these concerns permeate a prominent empirical issue in contemporary civil procedure debates: the changes in pleading policy wrought by Bell Atlantic, Corp. v. Twombly and Ashcroft v. Iqbal. Revisiting my own earlier work, I embed the question of how changes in the pleading standard will affect case outcomes in a broad behavioral framework that takes parties’ agency seriously. In the process, I address recent critiques, both of the very idea of using behavioral frameworks to understand civil litigation policy changes, and of certain aspects of my use of real-world litigation data collected by the Federal Judicial Center. As I show, these criticisms are straightforwardly refuted on the merits.The alternative to taking seriously the behavioral context created by the civil justice system — what has occurred so far in too much of the debate over Twombly and Iqbal — is, as one critic of early 20th-century empirical research by legal scholars once put it, “a mindless amassing of statistics without reference to any guiding theory whatsoever.” To do better, we will need to take behavior seriously in studying civil litigation.

WITHDRAWN: Federal Judicial Center International Litigation Guide: Recognition and Enforcement of Foreign Judgments

WITHDRAWN: Federal Judicial Center International Litigation Guide: Recognition and Enforcement of Foreign Judgments

Federal Judicial Center International Litigation Guide: Recognition and Enforcement of Foreign Judgments

This publication was prepared for the U.S. Federal Judicial Center as a guide for Federal Judges on the recognition and enforcement of foreign judgments. It covers applicable law in federal courts, the issues raised when a foreign judgments recognition case, grounds for non-recognition (and their sources in the law), and recent developments that may affect future adjustments in the rules. The law in those states that have adopted one of the Uniform Acts is covered, as is the law in states that remain under a common law system for recognition and enforcement of judgments. Also covered is the 2005 Hague Convention on Choice of Court Agreements, which has been signed, but not yet ratified, by the United States. The Guide is organized in a manner designed to assist judges before whom questions of recognition and enforcement are raised, with an attempt to provide comprehensive coverage of the issues which may be raised, and the statutes, treaties, and judicial precedents that may apply.

Comments in Opposition to the Proposed Amendments to the Federal Rules of Civil Procedure

These are Professor Moore's public comments in opposition to the recent proposed amendments to the Federal Rules of Civil Procedure. The proposed rules amendments are ostensibly intended to address the so-called and of civil litigation. Professor Moore offers four observations. First, the most objective and reliable measure of cost before the Committee is contained in the 2009 closed-case study by the Federal Judicial Center, which shows neither out-of-control costs nor an increase in costs over time. Second, one objective and reliable measure of delay is case disposition time, a statistic maintained by the Administrative Office of the Courts. The AO's statistics show that the median disposition time for a civil case (from case filing to final disposition) has maintained stability for twenty-five years, from 7 months in 1986 to a still-brisk 7.8 months in 2012, a difference of about 24 days. Third, contrary to the Committee's apparent belief, lawyers and judges are well aware of the concept of proportionality in discovery and apply it frequently. Fourth, the federal courts are widely perceived to favor defendants, and the adoption of these proposals will intensify that perception, because the proposals do favor defendants.

What Should We Do About Multi-Jurisdictional Litigation in M&A Deals?

Many M&A transactions attract shareholder litigation challenging the fairness of the economic terms of the deal for the target shareholders. Since the end of the financial crisis, however, there has been a documented increase in the number of jurisdictions in which each individual transaction is attacked. Why has this upsurge in multi-jurisdictional litigation occurred? How significant are its real costs and benefits? And what should we do about it, if anything? This Article first summarizes what we know about these questions and then offers its own viewpoint on how best to respond to multi-jurisdictional litigation. On the one side, the defense bar and their academic supporters want to eliminate shareholders’ choice about where to file litigation either by mandating that only the state of incorporation is a proper venue or, alternatively, by vesting the choice of venue with the target company’s board of directors. A corollary aspect of these proposals rests on whether the proponents believe that a bylaw passed solely by the board of directors is sufficient to implement such a change, or whether a shareholder-approved charter amendment is needed. However, on the other side, there are judges, academics, and investors who believe the current system of judicial comity is appropriate either as it is now or with some tweaks. These advocates see value in the current system of judicial federalism and comity, while at the same time differing over whether a thumb needs to be put on the scale in favor of the state of incorporation or greater coordination among judges in different courts. This Article argues that comity is the best solution for the present, although the final resolution of these issues awaits the development of more complete data on the costs and benefits of the current system.

Cuota de genero vs. regla de mayoría: el debate constitucional

This article analyzes two decisions of the Superior Courtroom of the Electoral Tribunal of the Federal Judicial Branch in which is debated the application of “gender quota” and the interpretation of “democratic procedures” to elect candidates into the political parties. The author argues two dissertations: in popular elected positions, the application of the law is not necessarily partial to male gender; by contrast, can works effectively as a vindication instrument for equal treatment of men and women; since there's not conceptual or theoretical contradiction between gender quote and democratic process. Both of them are democratic mechanism of political representation, making possible sustain a conceptual relationship between the two expressions referent.

Addenda to “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin,”: A Discussion of Methodology in Tallying Margolin’s Supreme Court Argument Record as Well as Those of Other Pioneer Female Advocates Mabel W. Willebrandt, Helen R. Carloss, and Beatrice Rosenberg

Addenda to Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin,”: A Discussion of Methodology in Tallying Margolin’s Supreme Court Argument Record as Well as Those of Other Pioneer Female Advocates Mabel W. Willebrandt, Helen R. Carloss, and Beatrice Rosenberg MARLENE TRESTMAN “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin,” which appeared in the March 2012 issue of the Journal ofSupreme CourtHistory,1 presented a chart listing the twenty-eight cases this preeminent appellate advocate argued at the Supreme Court, all on behalf of the Depart­ ment of Labor and involving the Fair Labor Standards Act. After further research about Margolin, and further contemplation about the best way to record the career of a lawyer who appeared before the Supreme Court so many times, I think it is useful to correct and explain the methodology I used in tallying Margolin’s record of cases she argued before the Supreme Court. I hope that this will serve both to satisfy Supreme Court argument scorekeepers and to help other researchers who are trying to come up with a definitive number of “cases argued” and “arguments before the Supreme Court” for long-deceased advocates. Between 1945 and 1965, Bessie Margo­ lin presented twenty-four “arguments,” where PIONEER WOMEN ADVOCATES: ORAL ARGUMENT RECORDS 253 “argument” is measured essentially by the number of times an advocate steps to the podium. Presentation in consolidated cases, therefore, counts as one argument whereas consecutive cases, even if related, are sepa­ rately counted. Margolin’s twenty-four argu­ ments, in turn, comprised twenty-seven “cases,” as identified by a unique Supreme Court docket number. From Margolin’s perspective, however, which focused on the Labor Department’s wage and hour actions against employers, she argued twenty-eight cases, as set forth in the chart published originally with my article. When I first decided years ago to research Margolin’s life and career, I started with what seemed a simple fact, often repeated about her, in one form or another. “Bessie Margolin argued twenty-seven cases at the Supreme Court,” said chroniclers including Clare Cushman,2 Chief Justice Earl Warren,3 and, most importantly for her biography, Margolin herself.4 That simple fact prompted a simple inquiry: Which were the twenty-seven cases? I initially searched an online legal database and an online version ofthe Journal of the United States Supreme Court for all occurrences of “Bessie Margolin,” within Supreme Court decisions and entries, review­ ing each one to identify those that reported Margolin had argued them. Robert Ellis, Federal Judicial Records Archivist at the National Archives, later provided Margolin’s Supreme Court admission papers, which contained a handwritten list, albeit incom­ plete, ofcases she argued. These were helpful starting tools, but it was only when I located Margolin’s numbered lists, nestled among personal files, that I was certain I had identified the twenty-seven cases that she claimed. By comparing all ofthese sources, I discovered a twenty-eighth case that she argued during her career but that she inexplicably omitted from her tallies. The twenty-eighth case was Mitchell v. Oregon Frozen Foods, which Margolin argued on November 17, 1959 and for which the Court dismissed certiorari as improvidently granted based on “ambiguities in the record.”5 Whether Margolin omitted her argument in Oregon Frozen Foods due to mere oversight or perhaps a beliefthat a case not decided on the merits should not be included in her tally, I do not expect that we will ever know. Although I could not explain it, Margolin’s omission of an argued case begged correction. Not bad, I thought; I had identified the twenty-seven cases she claimed and chalked up another case to add to Margolin’s record. To preserve my findings, I listed all twenty-eight cases in the chart, “Cases Argued by Bessie Margolin at the Supreme Court,” which was published as part of my article. Since then, my interest in Margolin’s remarkable life continues; I am writing her book-length biography, under contract with Louisiana State University Press’s Southern Biography Series. To that end, while review­ ing the Supreme Court files at the National Archives in Washington, D.C., for...

Economic Ideology and the Federal Judicial Task

Richard Posner has produced an ambitious of the federal judicial system in which he now officially participates (p. 322). Its reach is better reflected in the broad, if less catchy, title of the book (The Federal Courts) than in the subtitle (Crisis and Reform). Though a major portion of the book (chapters three through five) analyzes the dramatic expansion of the federal court caseload in the past twenty-five years and assesses a wide variety of reform proposals aiming to alleviate the caseload crisis, the work as a whole ranges far beyond these topics. Posner begins with two chapters analyzing the federal court system as an economist or sociologist might study an industrial organization. He describes the system's functions, the demand for and supply of its services, its hierarchical and pyramidal organization, its personnel, and its jurisdiction. He addresses the caseload crisis and palliatives designed to cure it in the next three chapters, but the second half of the book branches out in several different directions. Chapter six elaborates an economic and political theory of federalism as a basis for reconsidering the optimal use of federal courts. Chapters seven through ten present essentially normative arguments for ways to improve the quality of judicial performance wherever federal jurisdiction is retained. Here, Posner argues for judicial self-restraint to reduce federal court power, more institutional and less individualistic judicial opinions, statutory and constitutional interpretation more sensitive to legislative compromises when text and history are not determinative, and the systematic use of economic analysis in judging (pp. 220-21). A concluding chapter calls for more social science research into legal institutions to be performed in the law schools' and for new law courses in judicial administration, opinion writ-

Of Waves and Water: A Response to Comments on the FJC Study Motions to Dismiss for Failure to State a Claim after Iqbal

This paper responds to comments regarding the Federal Judicial Center’s recent studies of the resolution of motions to dismiss for failure to state a claim. Those studies, undertaken at the request of the Judicial Conference Advisory Committee on Civil Rules, found a statistically significant increase in the rate at which defendants file motions to dismiss following the Supreme Court decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. The studies also found no statistically significant increase in the rate of grants of motions to dismiss without leave to amend, except in cases involving challenges to financial instruments such as mortgages, and no statistically significant increase in cases terminated by such motions. Several scholars have expressed reservations regarding these findings and raised a number of specific issues regarding the research. This paper responds to the following issues:• Professor Hoffman’s concerns about our use of statistical analysis in general, and the use of multinomial statistical models in particular;• Professor Moore’s concerns about the exclusion from our study of pro se cases and cases asserting affirmative defenses, and the findings of her most recent study of the outcome of motions to dismiss;• Professor Brescia’s recent study finding an increase in grant rate of motions to dismiss in employment and housing discrimination cases; and • Professor Gelbach’s incorporation of our findings into an economic model of pretrial litigation that attempts to estimate the overall effect on settlement and access to discovery.I continue to believe that our findings represent the most accurate statement of the federal district courts’ response to these Supreme Court decisions, but acknowledge that this response has continued to evolve since we conducted our study. I propose a study of all dispositive motions that will, among other things, examine the interaction between motions to dismiss for failure to state a claim and motions for summary judgment.

La democracia como la dictadura mediática de la burguesía. Análisis comunicativo de la elección presidencial de 2006

Este trabajo es un ejercicio de aná­lisis comunicativo, en el cual se estudia el dictamen del Tribunal Electoral del Poder Judicial de la Federación (TEPJF) que resolvió, juridicamente, la controversía postelectoral de la elección presidencial de 2006. Mediante la teoría del acto de habla de Habermas, se develan las razones del fracaso del gobierno de Felipe Calderón, surgido de aquella tan cuestionada elección, a saber: la irracionalidad comunicativa del proceso electoral en su conjunto.

La designación de consejeros electorales en Querétaro: un estudio de la sentencia SUP-JRC-412/2010 y acumulados, en el marco de la teoría constitucional contemporánea

<p class="Pa2">El presente estudio aborda el estudio de una de las sentencias más polémicas que ha dictado la Sala Superior del Tribunal Electoral del Poder Judicial de la Federación en torno a la integración de órganos electorales locales. Resulta que en la pasada renovación del Consejo General del IEQ, se eligió a los Consejeros Electorales por el voto de las dos terceras partes de los miembros presentes en la Legislatura del Estado, situación derivada de que una fracción parlamentaria abandonó la sesión, a fin de impedir la integración de la mayoría requerida. La Sala se pronuncia sobre el particular, además de otros interesantes argumentos sobre la elegibilidad y la reelección de Consejeros y la fundamentación y motivación de los actos legislativos; es una sentencia que vale la pena ser estudiada en el marco del neoconstitucionalismo, a fin de comprender su <em>ratio esendi</em>.</p>

Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom

This article discusses the spoliation of ESI (electronically stored evidence) in a completely non-technical way. It focuses on the law governing sanctions and not on computer technology. Professor Richard L. Marcus, the Special Reporter to the Civil Rules Advisory Committee and a primary drafter of the 2006 amendments addressing the discovery of ESI, kindly reviewed and commented on my article. He said that the piece is particularly timely because the Advisory Committee is presently considering whether to propose further amendments to address problems created by disparate positions taken by federal courts on sanctioning for spoliation. For instance, courts divide over the level of culpability required for the issuance of a serious sanction (such as an adverse inference instruction) and over requirements that the innocent party prove the relevance of the missing evidence. I focus on these differences in my discussion of two landmark 2010 sanctions decisions, Pension Committee and Rimkus, by federal district Judges Shira A. Schiendlin (author of the famous Zubulake opinions) and Lee H. Rosenthal (now Chair of the Standing Committee). Both of these judges served on the Advisory Committee during the amendment process and are widely known to be e-discovery experts. Rimkus and Pension Committee are useful background for my analysis of the teaching effectiveness of Connor v/ Sun Trust, the first spoliation decision in the casebook, Electronic Discovery and Digital Evidence (by Judge Shria A. Scheindlin and Professor Daniel J. Capra), which I used in my course in Complex Litigation. Conner appears in the casebook under the heading, “What Constitutes Spoliation?” I had my students email me each day their comments on how the cases covered in class helped them learn about the spoliation of ESI. Their comments (and mine) on the teaching effectiveness of Connor are an integral part of the article. Also, I briefly refer to some of the Federal Judicial Center’s empirical research on sanctions decisions. Please see my CV for citations to my articles in which I report the results of my own empirical research. The article concludes with a discussion of the current efforts of the Advisory Committee on Civil Rules to whether or not to propose a rule-based approach to preservation and sanctions for spoliation.