Courts & Justice Law Journal

Advocatus Iustitia Aeque

1 Cts. & Just. L.J.

Vol. 1       Vol. 2

Forthcoming Issue

Spring 2020 | Vol. 2, Issue 2

Featured Article

Madison v. Alabama: An Analysis and Future Considerations

                                                    

by Kaleb Byars, University of Tennessee College of Law 2021

Editor-in-Chief, Tennessee Law Review 2020-2021

2 Cts. & Just. L.J. 154 (2020)

This article is forthcoming in the Tennessee Journal of Race, Gender, and Social Justice.  Thank you to RGSJ for allowing us to share this article.

Part I of this Article has introduced the facts of Madison v. Alabama and its central holding.  Next, Part II addresses other Supreme Court Jurisprudence on execution of mentally incompetent prisoners.  Part III further discusses the Court’s holding in Madison v. Alabama.  Part IV provides an analysis of the Court’s holding, specifically noting implications the Court failed to consider.  Further, Part IV discusses other issues related to executing mentally ill prisoners that may arise following Madison v. Alabama.  Part V briefly concludes.

/ Spring 2020 / C&JLJ                                                                            

A State-Circuit Split:

Reconciling Tennessee Damage Caps after Lindenberg and McClay

                                                    

by Bailey D. Barnes, University of Tennessee College of Law 2021

2 Cts. & Just. L.J. 201 (2020)

A divided panel of jurists on the United States Court of Appeals for the Sixth Circuit invalidated Tennessee’s caps on punitive damages in Lindenberg v. Jackson National Life Insurance Company on December 21, 2018. The Sixth Circuit, sitting en banc, denied an application to rehear the case.   A year later, the United States Supreme Court denied the petitions for writs of certiorari of both Jackson National Life Insurance Company and the State of Tennessee. Meanwhile, the Tennessee Supreme Court heard a challenge, via certified question from the Middle District of Tennessee, to the Volunteer State’s statutory limits on non-economic damages. In early 2020, a divided court held the caps did not violate the Tennessee Constitution’s protections for litigants’ right to a trial by jury, separation of powers, or equal protection. Accordingly, the law of damage caps in Tennessee remains unsettled. The court of last resort on issues of state law, the state supreme court, has issued a ruling that seemingly conflicts with the Sixth Circuit’s interpretation of the state’s constitution; however, the Tennessee Supreme Court majority, while acknowledging the Sixth Circuit’s opinion in a footnote, explicitly chose not to address any issues of punitive damages. Therefore, the constitutionality of Tennessee’s punitive damage limits is currently unsettled, and this situation presents a rare state-circuit split of authority.

/ Spring 2020 / C&JLJ                                                                            

International Diamond Laws and Africa: Purportedly Helping African Nations by Preventing Them From Exporting Precious Natural Resources

                                                  

by Professor Kenneth L. Lewis, Jr., Nova Southeastern University - Shepard Broad Law Center

2 Cts. & Just. L.J. 171 (2020)

A Game of Telephone: Why §1972 Should Not Apply to Pro Se Litigants

                                                    

by Pierce Schultz, University of Florida Levin College of Law 2021

2 Cts. & Just. L.J. 215 (2020)

Not much has been written about the 30-year old circuit split over whether 28 U.S.C. § 1927 applies to pro se litigants. The little that has been written about it has seemingly missed that the Ninth Circuit’s rule is built on a faulty foundation. Specifically, I argue that the case establishing the rule in the Ninth Circuit erroneously relied on a previous case that it misinterpreted.

 

I further argue that the source of this misinterpretation was an inaccurate headnote. This raises concerns about the use of headnotes more generally. Attorneys cite headnotes more frequently than you would think, and courts have been misled by headnotes several times. Therefore, to prevent similar occurrences in the future, I propose that publishers add a warning not to rely on the case’s headnotes.

/ Spring 2020 / C&JLJ                                                                            

Suo Moto Powers of the CCI: A Road Mired With Procedural Potholes

                                                    

by Professor Prateek Bhattacharya, Jindal Global Law School

2 Cts. & Just. L.J. 233 (2020)

The proliferation of multinational enterprises has created the need for a strong and systematic regulatory process in each jurisdiction. In India, specialised regulators such as the Competition Commission of India have been created for this purpose, and with the aim that special skills and expertise is required for regulating such niche areas and industries. This paper discusses the evolution of the judicial system in India from the days of the British Raj, which has led to the current system of regulation, following which the nature and functions of the Commission are discussed, with particular emphasis on its suo moto powers. The paper proceeds to compare the Commission’s suo moto powers with those of competition regulators of the European Union and Australia. Finally, the paper deliberates on the procedural inadequacies and irregularities committed by the Commission, which have created an environment where the regulatory process followed by it is at odds with the principles of natural justice, resulting in opaqueness and unpredictability for market participants.

/ Spring 2020 / C&JLJ                                                                            

main-qimg-58b6d90da5d3feeafb33f5c1010614

A diamond is a symbol of wealth and even love and affection.  The Twenty-First Century’s emphasis on a bling and the glitzy lifestyle has thrown diamonds in the spotlight.  Interestingly, most people do not truly understand how diamonds are formed and or realize that the marketing genius of one company, De Beers (at one point a virtual international monopoly), has conditioned most of us to desire diamonds, regard diamonds as intrinsically valuable, and associate diamonds with romance and love.

 

Furthermore, some do not know that several poor African nations have large deposits of diamonds; yet, others, while knowing that several African nations possess large caches of diamonds, have been led to believe that the diamonds from those nations should be shunned because African nations use diamonds to fuel wars and conflict on the African continent. Still others are familiar with the term blood diamonds but do not fully understand the genesis of the phrase or the consequence of so labelling a country’s diamonds.

/ Spring 2020 / C&JLJ                                                                            

International Issue

Winter 2020 | Vol. 2, Issue 1

The Fair Administration of Justice  in International Courts

Featured Article

The Judge Posner Doctrine as a Method to Reform the Italian Civil Justice System

                                                    

by Professor Cesare Cavallini, Bocconi Law School of Milan

and Stefania Cirillo, Bocconi Law School of Milan

2 Cts. & Just. L.J. 8 (2020)

Introducing Mandatory Mediation to Egypt’s Administrative Courts: Two Feasible Approaches

                                                  

by Judge Mahmoud Elsaman, State Council of Egypt 

2 Cts. & Just. L.J. 55 (2020)

This article represents a preliminary and methodology-oriented effort to conduct an economic analysis of the Italian civil justice system, commonly perceived as inefficient and proposes a different approach. More specifically, it demonstrates how the failure of several Italian legal reforms was based on methodological errors, which led to the inefficiency of the system itself. Accordingly, it proposes an alternative in methodology.

For the mentioned purpose, it shall use the theories and methods studied by Judge Posner concerning the judiciary system. In particular, it shall evaluate if the Posnerian methodology could be applied to the reforms to come from the Italian judiciary system. The evaluation is carried out by assessing the behavior of judges, lawyers, and litigants based on the theory of wealth maximization.

/ Winter 2020 / C&JLJ                                                                            

The Egyptian Judiciary suffers a huge case backlog. Alternative Dispute Resolution has proved to be a good tool in various jurisdictions to reduce the number of disputes referred to courts. Specifically, the advantages of integrating mediation into public disputes are very clear. It can reduce the time and costs required to settle disputes by avoiding the lengthy process of litigation. Also, mediation helps disputing parties to settle their disputes confidentially. Unlike litigation, mediation is not associated with public disclosure requirement.

Since the Egyptian government aims to follow the international trend of requiring court-annexed mandatory mediation before referring cases to competent courts, the Egyptian Ministry of Justice has recently proposed a bill on the integration of mediation into Ordinary Courts. In line with the case-load reduction strategy reflected in the bill, this paper aims to provide a roadmap for the introduction of mandatory mediation into Egypt’s administrative courts, represented in the State Council of Egypt. What this paper proposes, as a solution to reduce number of cases referred to the administrative courts, is making mandatory mediation a prerequisite before referring a dispute to the relevant court within the State Council. This might lead to an increase in amicable settlements of disputes and a reduction of the State Council's case workload. 

 

/ Winter 2020 / C&JLJ                                                                            

Independence of Judiciary and Judges and Techniques of Interpretation in Japan

                                                  

by Professor Yuichiro Tsuji, Meiji University Law School

2 Cts. & Just. L.J. 76 (2020)

This principle of judicial independence is also true of the Japanese judiciary. The Japanese judiciary and constitutional scholars have incorporated US legal studies and have developed skills of legal interpretation to maintain the independence of the judiciary. Not only the judicial branch, but the individual judges are also independent and are bound to the law and their professional conscience. Urawa and Naganuma cases present some cases that suspect that the Japanese judiciary and individual judges have been influenced by political considerations. Other cases such as judge Miyamoto case in Chapter 3 have suggested that the office of the Japanese Supreme Court may have an impact on individual judges.

/ Winter 2020 / C&JLJ                                                                            

Should We Teach (A Bit Of) U.S. Civil Procedure in the European Law Schools?

                                                    

by Professor Cesare Cavallini, Bocconi Law School of Milan

and Marcello Gaboardi, Bocconi Law School of Milan

2 Cts. & Just. L.J. 109 (2020)

main-qimg-58b6d90da5d3feeafb33f5c1010614

The occasion for this article moves from several suggestions emerging by the research and teaching work, mostly spent in the graduate courses in (Italian) civil procedure. Therefore, the perspective stems from a «continental» scholar and teacher; it would mean the traditional research focus on the country-specific area, usually taught in the same manner. As we can see, it generally happens all over European Law Schools. The main output, probably due to the Bocconi University of Milan, one of the leading international universities in Europe, has been first the Law students' interest in the common law procedural systems (the U.S. one, mostly). That interest was spontaneous, even if the lectures proposed not a few references to the common law judiciary system. However, that interest has been continuous, and it is still daily growing, even the students come entirely from the civil law (European) legal tradition. It has been as much spontaneous wondering about that, and quite quickly, the question has been one. Are there serious reasons why (a bit of) U.S. Civil Procedure should be taught in European Law Schools? The essay aims to explore the backgrounds of the positive response, and to some extent, to move toward a new season for the comparative civil procedure as well as an imperative mood of the legal education, even conscious of the limits set off by that traditional domestic area. 

/ Winter 2020 / C&JLJ                                                                            

© 2020 by Everyday Evidence

Daniel@everydayevidence.og

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