Online research in philosophy

In this comparison of non-class-based complex litigation in California and federal courts, Scott Paetty examines the case management strategies employed in California's complex court system and in the federal multidistrict litigation process. Evaluating the strengths and weaknesses of both systems, Paetty describes what makes a case complex, evaluates procedural mechanisms for dealing with complex cases, and then discusses some of the informal case management techniques practiced by judges in both systems. Paetty ultimately finds the flexible approach advanced in the California complex court system to be more effective and argues California's system should be a model for other states seeking to manage complex cases.

There are seven core United Nations international human rights treaties under which committees of independent experts have been established to monitor their implementation. These committees produce a body of output, which include comments/recommendations adopted by the committees and views/decisions adopted in a case submitted under an individual complaints procedure. This material has become increasingly significant in the interpretation and application of the treaties by national courts and tribunals, thereby establishing the agreement of State parties on the interpretation of a treaty and facilitating the production of subsequent State practice. This paper examines the impact of the UN human rights treaty body system on Australian national courts and tribunals. It is based on a comprehensive review of the case law and other adjudicative decisions of Australian courts and tribunals from the late 1970s to mid-2006 where there were references to the treaty body output. It demonstrates that while Australian courts and tribunals are increasingly resorting to treaty body output as an aid to the interpretation of statutes and development of the common law as well as in the exercise and judicial scrutiny of administrative discretion, they have yet to engage in a 'fruitful' dialogue with the UN treaty bodies.

Perhaps the most distinctive aspect of the German approach to public law in general and to public international law in particular is the systemic vision: the effort to envision the various legal norms as arranged within a hierarchy, composing together a coherent, logical order. This essay highlights what I believe to be the contribution of this systemic vision to international law and politics. This approach has contributed significantly to the emergent conception of international law as a legal system. The system of norms constitutes a map that guides lawyers in their search for applicable norms, and empowers judges to fill lacunas, interpret treaties, manage the interface between different treaties, and in general develop and further solidify the system. Probably the most significant political outcome of the vision of international law as a legal system is the empowerment of courts to develop international law beyond the intention of governments, and the equalizing effect of a coherent and consistent interpretation and application of the law. The essay also mentions a few contemporary challenges to this vision, in particular the fragmentation of the law and the turn to informal arrangements.

For many years, judges and academics have debated the pros and cons of non-precedential judicial opinions in the federal appellate courts. Although the utility, necessity, and advisability of non-precedential opinions remain interesting issues to debate, at this point they are somewhat beside the point. Academics have lost the debate on non-precedential opinions. Judges control whether non-precedential opinions are permissible, and judges are not going to give them up anytime soon. So, as the saying goes, if you can't beat 'em, join 'em. Rather than continue to debate the merits of non-precedential opinions, the better course of action is to find a principled way to integrate them into the judicial system, both to provide clarity regarding the weight of the opinions and to preserve the legitimacy of the federal appellate courts. This article argues that Federal Rule of Appellate Procedure 32.1, which eliminated citation restrictions on non-precedential opinions, should be revised to integrate non-precedential opinions into the judicial system. Specifically, the rule should expressly authorize non-precedential opinions, establish uniform procedures governing their issuance, and define their authoritative value. The easiest answer to this last issue is to make the opinions persuasive authority. A bolder step, and one this article advocates, would be to create a new category of "overrulable" authority to give non-precedential opinions some weight without giving them full precedential value. The article concludes that the federal judiciary must take steps to institutionalize non-precedential opinions in a way that preserves the system of precedent.

This article is intended to provide an overview of recent Supreme Court jurisprudence on private international law. It will discuss several cases that have been brought to the Supreme Court over the past few terms, and will utilize these cases as a lens through which to view the movement of the Court toward or away from an increased awareness of and international consensus on private international law issues. Interspersed throughout this discussion will be mention of other issues of private international law that may be brought before the Court in the future. The article concludes that while the Court has embraced its role in defining the extraterritorial reach of federal laws, bringing about much needed predictability for international sovereign and private interests, it has separately continued to defer questions of personal jurisdiction to the authority of lower federal and state courts with little regard for internal (and international) harmony.

Analysing the EU’s System of Government on the basis of the treaties establishing the Community and the Union leads to identifying five basic government functions, which are distributed in a complex system of checks and balances between the EU institutions and between the latter and member states’ institutions. Those five functions may be characterised as legislative function, which evolved over time from rule making to law making, the executive function which consists in implementing common policies, the supervisory function, consisting of judicial review and of oversight of member state’s compliance with their treaty obligations, the function of direction, consisting of policy guidance and programming, and an organic function consisting in institutional development. The new wording of the relevant treaty clauses by the Lisbon treaty clarifies the nature and distribution of these five functions and thus enable us to understand how separation of powers is organised in the EU.

The article is concerned with the question of how legal institutions are structured with the use of constitutive, institutive, consequential, and terminative rules. To that end, the regulation of international treaties as laid down in the Vienna Convention on the Law of Treaties of 1969 is analysed. This leads to the discovery of two additional categories of rules: content rules and invalidating rules. Finally, the special status of unique legal institutions is investigated. Unique legal institutions – for example, heads of state, parliaments, and supreme courts – enjoy validity in a legal system to the exclusion of the validity of any other legal institution of the same category in that system.

The article is concerned with the question of how legal institutions are structured with the use of constitutive, institutive, consequential, and terminative rules. To that end, the regulation of international treaties as laid down in the Vienna Convention on the Law of Treaties of 1969 is analysed. This leads to the discovery of two additional categories of rules: content rules and invalidating rules. Finally, the special status of unique legal institutions is investigated. Unique legal institutions – for example, heads of state, parliaments, and supreme courts – enjoy validity in a legal system to the exclusion of the validity of any other legal institution of the same category in that system.

Chronicling the tumultuous birth of federal trademark law in America from 1860 through 1882, In Search of the Trade-Mark Cases examines how understandings of the Treaty Power, Commerce Clause, and Intellectual Property clause shifted through that period. While focused on the Supreme Court's 1879 decision holding the federal trademark code unconstitutional, the history of the acts found unconstitutional and the acts enacted subsequent to the decision for trademarks are likewise examined. Among the discoveries this yields is a greater appreciation for the importance of international treaties in the development of American trademark law, and a clearer picture of how the Supreme Court arrived at its decision that trademarks were not "writings" for purposes of the Constitution. This is a draft, please feel free to provide feedback using the contact link.

A pair of U.S. Supreme Court cases in the mid-1980s created the exhaustion doctrine of federal Indian law - that cases within federal jurisdiction that raise a colorable claim of tribal jurisdiction should be litigated first in tribal court. Only when tribal remedies are exhausted may the losing party seek review in federal court. This federal post-exhaustion review raises two central questions: First, what standard of review should the federal courts employ in reviewing tribal court determinations? And second, what exactly are the federal courts entitled to review once tribal remedies have been exhausted? Underlying these questions is the issue of differentiating between tribal law and federal law. The existing standard of review between the two varies dramatically. Tribal court determinations of tribal law are entitled to absolute deference while tribal court determinations of federal law are generally reviewed de novo. Although federal courts may redetermine at least some issues of federal law on post-exhaustion review, proper respect for tribal courts and legislatures mandates that federal courts not review issues of tribal law. Thus, this article argues that proper deference to the sovereign powers of Indian tribes and tribal courts requires the federal courts, on post-exhaustion review, to scrupulously distinguish tribal court rulings on tribal law from rulings on federal law. Given that federal courts have apparently taken de novo review powers over all questions of federal law decided by tribal courts (whether that is legitimate or not), tribal courts are in some danger of serving merely as preliminary fact finders for federal district courts. This article proposes that federal courts can preserve the rights and values of tribal courts as instruments of tribal self-government only by carefully limiting questions of federal law to appropriate issues.