Today's Court Research Articles

Constitutional principles of protection of family rights and interests of the child in civil proceedings

In today's society, paradigms and models of child-rearing, values, and opportunities of parents, competent authorities, and the court to ensure the rights of the child are changing. Most states have identified the protection of family rights and interests of the child, the avoidance of violence against the child, the prohibition of bullying, etc. among the priority areas of state policy. It is important to analyze the constitutional principles of protection of family rights and the concept “the best interests of the child” in civil proceedings, because it is the court that the legislator has the broadest powers in this area, compared to other jurisdictions. The work aims to study the guiding constitutional principles based on which the court can protect the family rights and interests of the child. The research methodology consists of general theoretical and special scientific methods, namely: hermeneutic, system-structural, structural-functional, historical-legal, comparative-legal, and formal-logical. As a result of the study, the mechanisms of the best possible protection of children's rights by the courts were analyzed. An analysis of current case law, including the case-law of the European Court of Human Rights, concluded that today courts and other competent bodies pay considerable attention to analyzing "how a child will be better" and make informed decisions and, if necessary, correct previous mistakes.

The Making of the Supreme Court Bar: How Business Created a Solicitor General for the Private Sector

This Essay tells a simple but important story about power and the law: that of the rise of the modern Supreme Court bar. Since 1985, a small cadre of private attorneys has come to dominate Court advocacy. While the share of lawyers making their first arguments before the justices fell from 76% to 43% between 1980 and 2007, the fraction with ten or more arguments under their belt rose from 2% to 28%. Similarly, while litigators with five or more previous arguments were responsible for 5.8% of the case petitions granted in October Term 1980, that quotient soared to 55.5% by 2008. This elite bar disproportionately influences the Court's activity. Of the 17,000 lawyers who petitioned the Court from 2004 to 2012, the top sixty-six succeeded in getting their cases heard six times more often than their competitors. Interviews with former Supreme Court clerks, who read and summarize cert petitions for the justices, confirm that they place outsized weight on briefs filed by prominent advocates. Statistical analysis further shows that these lawyers significantly raise a party's chance of success on the merits. The bar's success on behalf of business has induced a form of "docket capture." As legal scholar Richard Lazarus has observed, the bar has forced a surge in antitrust cases that has softened anti-monoppolistic doctrine and cleared the way for aggressive mergers. It has similarly managed to persuade the justices to limit punitive damages in mass tort litigation. The bar has therefore played a crucial role in making today's Court one of the most business friendly in the nation's history.

News and Notes

News and Notes

The Need for a National Abortion Reporting Requirement: Why Both Sides Should Be in Support of Better Data

This paper focuses on the status of abortion reporting in the United States and how current data is inadequate. Looking to the two primary collectors of abortion statistics, the CDC and the Guttmacher Institute, this article highlights how both institutions suffer deficiencies and delays with their information gathering and how this is ultimately bad for society. Next, the paper discusses the Supreme Court's treatment of state abortion reporting statutes and how under today's Court, such legislation would likely pass constitutional muster as long as patient confidentiality was maintained. Finally, I discuss potential avenues through which better data can be achieved by Congress, characterized as the command option (legislative mandate), and the bribe option (conditional spending), respectively. I conclude that the bribe option is superior as it avoids concerns of anti-commandeering and allows the states to voluntarily cooperate with federal policy rather than passively resist it.

The Holocaust II – Civil Laws Undermining Criminal Justice

The current criminal justice system and civil laws are allowing the mass incarceration of many men, especially black for crimes beyond their control. Poverty is now a crime and even the children are not safe. The right to a fair trial is no longer an option. Today's courts only deal with crime and punishment ; truth is no longer required and no one is innocent. Attachment is no longer an right, you must make a deal with the DA before your Public Defender will give you an audience. Private Prison are gaining momentum, and courts are their marketing tools because of abuse of by insider criminal and civil justice officials. Some are even filling their pockets with millions in the mist. Most think that this is a conspiracy theory, but these facts mirror the beginning of the Holocaust and why millions died in mass graves, before the global community became outraged and did something about it. However, they were almost too late because millions died. Today, one superior court statistics showed that there were 159,000 criminal convictions and 300, 000 civil convictions in one county. Why are so many going to jail for civil penalties? It is because of tactical decisions to enslave through entrapment and unemployment against poor blacks who can’t pay. This is a human rights crisis where the defendant’s only crime is being poor and caught in legalized slavery in a vicious cycle of hate. See my paper A cross to bear, this is no longer a conspiracy theory.

Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine

This essay, forthcoming in the North Carolina Law Review, describes the transformation of the political question doctrine and the law of standing from flexible standards, suitable as techniques identified first by Alexander Bickel for the prudent exercise of political judgment by the Supreme Court, into true legal doctrines, whose relative rigidity makes their use as prudential avoidance devices difficult. The essay uses Bush v. Gore to illustrate the fact that doctrinalization has done much to eliminate justiciability concepts as vehicles for exercising prudent judgment, showing that the Court ignored substantial and interesting political question and standing issues in the case. The essay concludes by arguing that justiciability concepts as vehicles for prudent judgment fit well into the historical and political context in which Bickel wrote, and that their disappearance fits equally well with the historical and political context of today's Court and its (and our) acceptance of a strong theory of judicial supremacy.

Living Constitution, dying faith: Progressivism and the new science of jurisprudence

In Living Constitution, Dying Faith, political scientist and legal historian Bradley Watson examines how the contemporary embrace of the 'living' Constitution has arisen from the radical transformation of American political thought. This transformation, brought about in the late nineteenth century by the philosophies of social Darwinism and pragmatism, explains how and why contemporary jurisprudence is so alien to the constitutionalism of the American Founders. To understand why today's courts rule the way they do, one must start with the ideas exposed by and explained in Watson's timely tome.Today's view - rooted in progressivism - is not simply that we have an interpretable Constitution, but that we have a Constitution which must be interpreted in light of 'historically situated', continually evolving notions of the individual, the state, and society. This modern historical approach has been embraced by the judicial appointees of both Democratic and Republican presidents, by both liberals and conservatives, for a century or more. Living Constitution, Dying Faith shows how such an approach has directly undermined Americans' faith in a limited Constitution - as well as their faith in the eternal verities.

The Roots of the Modern Trial: Greenleaf's Testimony to the Harmony of Christianity, Science, and the Law in Antebellum America

The Christian is part of our common law, with the very texture of which it is interwoven.Simon Greenleaf (1834)Simon Greenleaf's life and legacy have been quietly influential even if overshadowed by the Websters and the Storys of American law. An accomplished lawyer, Greenleaf (1783-1853) served with Justice Joseph Story as a founding father of Harvard Law School, won the celebrated Charles River Bridge case against Daniel Webster before the Supreme Court, and wrote a masterful legal treatise that earned acclaim in Britain while remaining authoritative in American courts into the twentieth century. Yet, one who researches Greenleaf today will find him best remembered by evangelical Christians. And what draws evangelicals is a curious, oddly evocative essay published in 1846, entitled An Examination of the Testimony of the Four Evangelists (hereinafter, Testimony), in which the Harvard law professor investigate [d] the of [the Christian] religion by applying the Rules of Evidence Administered in Courts of Justice. If those rules, Greenleaf reasoned, yielded the of facts all right-thinking Christians knew to be indisputably true as a matter of faith, the same rules could be relied upon to determine a wide range of factual or historical disputes. Greenleaf chose the title carefully; he did not purport to stage a trial of the evangelists, but sought rather to display the rules of evidence as a science of proof that could be used wholly apart from courtroom proceedings.1Greenleaf's Testimony merits reappraisal for four reasons. First, it provides unique insights into the interrelationship of antebellum law and religion, which is often dominated by narratives of increasing secularization and church/state separation. The Testimony evinces something quite different. Religion remained in the law not as residue or artifact; rather, Greenleaf resolutely believed, as quoted above, that Christianity was interwoven with the common law. And as a devout evangelical, an ardent Whig, and a chief architect of the common law of evidence, Greenleaf consciously threaded his beliefs about Christianity and science into the very rules and doctrines that are still used in today's courts.2Second, and related, it offers a unique perspective in the debate over the hegemonic influence of evangelical Christianity in antebellum culture and politics, a debate that has largely ignored the law except when confronting church/state issues. Through the Testimony as well as his influential legal scholarship and teaching, Greenleaf strove to make the modern trial a for the that merited approbation on religious (specifically, evangelical Christian) as well as scientific grounds. The core of the modern trial drew from methodological and epistemological assumptions rooted in the Scottish Common Sense tradition, which dominated antebellum scientific thinking in most fields while finding much favor among evangelical Christians. Indeed, Greenleaf so completely and skillfully adopted mainstream thinking that some reviewers found the Testimony disappointing, yet by broadly borrowing common sense thinking Greenleaf guaranteed the legitimacy (popular acceptance) of modern judge-controlled trials dominated by rules that radically delimited a jury's power. Oddly, GreenleaPs originality resided in showing law's conformity with conventional thinking.3Third, in Greenleaf we see how Whig politics and ideology affected the law. Distrustful of popular decision making, Greenleaf was nonedieless firmly committed to moral improvement, social uplift, and a commercial economy. He also reflected Whiggery's strong evangelical chord. The Whig penchant for elite leadership and institution building is strikingly evident in his reconceptualization of trials as judge-dominated proceedings in which jurors had no say in determining the law and an increasingly circumscribed role in finding facts. The search for the truth would be conducted under the protocols of a new legal science. …

Antonin Scalia's jurisprudence: text and tradition

Lionized by the right and demonized by the left, Supreme Court Justice Antonin Scalia is the high court's quintessential conservative. Witty, outspoken, often abrasive, he is widely regarded as the most controversial member of the Court. This book is the first comprehensive, reasoned, and sympathetic analysis of how Scalia has decided cases during his entire twenty-year Supreme Court tenure. Ralph Rossum focuses on Scalia's more than 600 Supreme Court opinions and dissents - carefully wrought, passionately argued, and filled with well-turned phrases - which portray him as an eloquent defender of an original jurisprudence. He also includes analyses of Scalia's Court of Appeals opinions for the D.C. circuit, his major law review articles as a law professor and judge, and his provocative book, A Matter of Interpretation. Rossum reveals Scalia's understanding of key issues confronting today's Court, such as the separation of powers, federalism, the free speech and press and religion clauses of the First Amendment, and the due process and equal protection clauses of the Fourteenth Amendment. He suggests that Scalia displays such a keen interest in defending federalism that he sometimes departs from text and tradition, and reveals that he has disagreed with other justices most often in decisions involving the meaning of the First Amendment's establishment clause. He also analyzes Scalia's positions on the commerce clause and habeas corpus clause of Article I, the take care clause of Article II, the criminal procedural provisions of Amendments Four through Eight, protection of state sovereign immunity in the Eleventh Amendment, and Congress's enforcement power under Section 5 of the Fourteenth Amendment. The first book to fully articulate the contours of Scalia's constitutional philosophy and jurisprudence, Rossum's insightful study ultimately depicts Scalia as a principled, consistent, and intelligent textualist who is fearless and resolute, notwithstanding the controversy he often inspires.

Thayerian Deference to Congress and Supreme Court Supermajority Rule

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise of judicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority; in ten of the eleven cases, the vote was five-to-four. Many scholars have recently considered ways in which Congress can either work within the new doctrinal constraints laid down by the Court, or circumvent those constraints entirely. In this Symposium Essay, I explore a more direct congressional mechanism for tempering the Court's aggressive review: imposition of a supermajority consensus requirement (say, six Justices rather than five) before the Court can invalidate a federal statute on federalism grounds. While virtually unheard-of today, this was a popular congressional proposal at earlier times in our history, especially during the Progressive Era. Indeed, two states that adopted a supermajority protocol during that period still operate under such a rule today. The notion was that such a supermajority requirement would institutionalize the prevailing view (then generally associated with James Bradley Thayer) that the Court shouldn't invalidate a federal statute unless it was perceived to be unconstitutional beyond reasonable doubt. In this Essay I bracket questions regarding the constitutionality and logistical feasibility of such a proposal today, and simply use the supermajority concept as a heuristic lens through which to explore different ways of institutionalizing what today's Court would articulate more loosely as a of constitutionality. Drawing upon the Progressive Era debates, I try to offer new insights into the operation of such a presumption, as well as to remind us of an additional mechanism for consideration by those who would advocate beefing up this presumption in the federalism (or any other) context.

Common Law Branches off into New Directions

It can be said that the law generally takes two forms: statutory and common law. Statutory laws are those laws made by the legislatures of the either the State or Federal government. Whereas, common laws are a result of Court interpretations of reasoned law, and are often referred to as judge-made laws. The Common Law dates back in history to the English Legal System. During that period of time, judges presided over cases, reached decisions and shared them with each other. Many legal issues pertaining to the rights and responsibilities associated with trees are governed by laws which are the product of court interpretation. Many such court interpretations have withstood the test of time and still remain the law of the land to this day. However, it appears that new interpretations of old common law theories are taking place by today's courts causing common law issues pertaining to trees to branch off into new directions. What follows is a brief discussion of two recent changes of common law issues which have occurred regarding trees and the duty of care to be exercised by landowners.

Forensic inference from genetic markers.

This review provides an overview of forensic inference from genetic markers. Because the judge and jurors are charged with decision-making, the forensic expert's job is to provide a useful summary of the evidence to the court. Hence, this review focuses on the likelihood ratio as a means of summarizing the genetic data for either criminal or civil cases. The properties of the genetic markers frequently used in today's court cases, those being VNTR loci, are discussed in detail. Unlike traditional markers, the data from VNTR loci are complicated because current molecular methods generate data that follow a finite mixture distribution. Critical ancillary issues are also covered, though not in detail.

Supreme Court Dilemmas in Striking a Balance between the Right to Counsel and the Welfare of Society

The poor are often far removed from the legal system not only as a result of the lack of funds, but also because the law is complicated to the point that it is all but completely alien to them. Yet, in society the legal problems of these people are multitudinous, ranging from everyday relationships with landlords and welfare agencies to the area of criminal cases in which so many impoverished citizens find themselves embroiled. The Supreme Court, since the milestone case of Gideon v. Wainwright in 1963, focused upon the guarantee to counsel for indigents in the many stages of criminal proceedings from arrest to sentencing, and appeal. Judicial activism in the Escobedo (1964), Miranda (1966), Wade (1967), Coleman (1970), Argersinger (1972), and Mempa (1967) cases provided bridges of procedural precedents that ensure fairness for the poor defendant. The procedural criteria established in those six key cases are sweeping remedies for the vulnerable position in which the destitute accused finds himself upon being arrested. The analysis here suggests that the defendant should have the advantage of a lawyer at every step in the criminal justice system. When an individual is arrested, the atmosphere of the police station is tense, and the stakes are high, sometimes involving many years of imprisonment. At the same time, the charges brought against him appear awesome and mysterious. More than any recent case on the right to counsel, Brewer v. Williams (1977) displays the dilemma faced by the Court in dealing with the boundaries between the investigatory and accusatory stages of criminal justice. The unique nature of the facts of this 5-4 decision left the judges sharply divided, with Justice Stewart explaining in the majority opinion that the Court should be vigilant in preserving the integrity of the right to counsel. The dissenters, led by Chief Justice Burger, wrote an impassioned attack against extending the exclusionary rule beyond a reasonable threshold. By expanding the right to counselfor indigent defendants, the Court has, in effect, eradicated what Justice Douglas termed "invidious discrimination" against a disadvantaged class in our society. To appreciate the significance of the fully developed role of today's Court as guardian of the civil liberties of the poor, one need only to look at the insensitivity that the 19th century Court expressed toward indigence when it referred to "the moral pestilence of paupers" in the City of New York v. Miln (1837) case.

The Products Liability Problem

The problem of fixing legal responsibility for product-caused injury or death comes before today's courts with increasing frequency. American courts have begun to look not merely at the product itself and the harm caused, but also at the way in which the product was advertised and especially how it was described in the advertising. It is implied, therefore, that improper advertising can be the CAUSE of injury. And this means that both advertising agencies and advertisers have serious moral and legal responsibilities to see to it that this does not happen.