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W opracowaniu autor podejmuje próbę przedstawienia genezy i rozwoju jurysdykcji ape-lacyjnej wyższej izby parlamentu brytyjskiego, jaką jest Izba Lordów. Analiza koncentruje się na przedstawieniu źródeł i zakresu uprawnień sądowniczych posiadanych przez parlamenty królestw, które weszły w skład Zjednoczonego Królestwa Wielkiej Brytanii, a następnie dyskusji i rozwią-zań, które stały u podstaw regulacji relacji obu systemów prawnych w traktacie zjednoczeniowym z 1707 roku. Ostatnią częścią analizy jest przedstawienie najważniejszych aspektów sprawowania jurysdykcji apelacyjnej przez Izbę Lordów w okresie do powstania Sądu Najwyższego Zjednoczo-nego Królestwa.

Most of the empirical work on separate opinion writing by lower federal court judges examines the U.S. Courts of Appeals. Given the Supreme Court's discretionary jurisdiction, it is argued that dissenting opinions operate as a cue signaling that a case is worthy of review. Concurrences, on the other hand, allow judges to join dispositional majorities while still expressing differences in legal reasoning from the majority. Likely in an effort to minimize dissent, the behavior of circuit court judges is found to be less influenced by ideology when potential dissenters serve with them. Despite the specter of Supreme Court review, these works generally find that the motivation to write separately is based largely in ideologically differences among panelists and less so on preferences of the Supreme Court. What, however, does separate opinion writing look like when the Court's jurisdiction is mandatory, as it is over three‐judge district court panels? Among other uses required by law, these district court panels are used to adjudicate cases arising under the Voting Rights Act of 1965. These panels also differ from the traditional judicial structure by placing district court judges, who traditionally decide cases individually, in a multimember setting with another district court judge and a circuit court judge. Examining separate opinion writing on these panels, we find that ideological distance from the majority opinion writer is still an important factor. This, however, is conditioned by the preferences of the Supreme Court, which exert a much stronger influence over behavior than they do in the traditional appellate court setting.

Qualified immunity is awful. But it’s not just the substantive defense that is a problem. Qualified immunity also comes with a slew of special appellate procedures that add difficulty, expense, and delay to civil-rights litigation. Defendants have a right to immediately appeal from the denial of immunity. And the federal courts have steadily expanded the scope and availability of those appeals, further ensuring that civil-rights litigation will not be quick or easy. There is one seeming exception to the ever-expanding right to appeal from the denial of qualified immunity: Johnson v. Jones’s limit on the scope of appeals from the denial of immunity at summary judgment. Johnson holds that, with rare and narrow exceptions, the courts of appeals lack jurisdiction to second guess the factual basis for the immunity denial. They must instead take the district court’s assessment of the summary-judgment record as given and limit themselves to the core qualified-immunity issues. This limit on the scope of appeals was supposed to simplify and streamline litigation. But defendants flout Johnson’s limits with some regularity. They appeal and—without invoking an exception to Johnson—base their arguments on facts different than those that the district court thought a reasonable jury could find. Courts eventually reject these arguments as barred by Johnson. But at that point, the damage has been done. The defendant has created wholly unnecessary work for plaintiffs and delayed any progress in the suit for a year or more. Should qualified immunity stick around in its current or an altered form, it will be imperative to reform the rules governing qualified-immunity appeals. Foreclosing defendants’ abusive, fact-based qualified-immunity appeals will be a central part of that reform. But in the interim, something must be done. And that something is sanctions. I found few instances in which courts of appeals sanctioned defendants for violating Johnson. That needs to change. These appeals are frivolous. And the defendants who take them should be sanctioned.

Various Caribbean countries have established the Caribbean Court of Justice, and have taken steps to ensure its viability. The Court has two jurisdictions. One of these—the Original Jurisdiction—pertains to disputes arising under the Revised Treaty of Chaguaramas, the constituent treaty of the Caribbean Single Market and Economy. The other jurisdiction—the Appellate Jurisdiction—was intended from the outset to allow the Caribbean Court of Justice to serve as the final court of appeal for all Caribbean countries. The Appellate Jurisdiction, which forms the basis of this chapter, has been the subject of considerable debate. To date, only four Caribbean countries—Barbados, Guyana, Belize and Dominica—have entrusted their final appeals to the new court, with most former British colonies in the region retaining the Judicial Committee of the Privy Council for final appeals. What have been the main elements in the long and circuitous debate concerning the Appellate Jurisdiction of the Court? Why have some Caribbean States opted to retain appeals to the Privy Council? And what are the prospects concerning the Appellate Jurisdiction? The chapter considers these issues in light of the passage of more than a decade and a half since Caribbean States signed the Agreement Establishing the Caribbean Court of Justice.

The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction over state courts. Conventionally, we tend to view controversy over judicial federalism through the lens of the Jeffersonian and Jacksonian eras, in which this appellate oversight functioned to consolidate the power of national institutions against the periphery and defenders of states’ rights promoted the independence of state courts from federal oversight. But the deliberative process that attended the formation of the federal judiciary exhibited a more complex dynamic that presented the framers of the Constitution and of the first judiciary act with a range of possible institutional arrangements. Given the available alternatives, the Supreme Court’s appellate oversight was not so much an aggression on states’ rights as a concession to those wary of consolidation. Rather than being contested, it in fact formed a ground of consensus as a modest means of ensuring federal supremacy.

The Constitution of India, by way of Part V, Chapter IV established the Supreme Court of India, giving it original, appellate and advisory jurisdiction. Similarly, the United States Supreme Court was established by the Congress under the Judiciary Act in 1789 and has been granted original and appellate jurisdiction. That being the case, the aim of this paper is to provide a comparative analysis between the appellate jurisdiction of the Supreme Court of India and the United States of America, and thereby show that the appellate function of the Supreme Court of India has in turn decimated the power of the Supreme court to critically analyze constitutional matters. Conclusively, the paper showcases that the Supreme Court of India requires a more efficient management system for its appellate jurisdiction, much like its American Counterpart.

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon's work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized the salience of ideological distance across Justices as well as ideological distance separating the Supreme Court from the lower federal appellate courts, results from our study, by contrast, suggest that when it comes to ideological differences, intra-Court rather than intercourt ideological distance emerged, on balance, as critical. Other variables also emerged as persistently important, notably Congress’s decision in 1988 to remove much of the Court’s mandatory appellate jurisdiction and variation in the total number of certiorari petitions filed. Finally, these core findings appear robust across alternative model specifications. While most commentators react to a diminishing Court docket by emphasizing possible adverse consequences, rather than commit to any normative position, our Article instead considers both the possible institutional costs and benefits incident to a declining Court docket, with an emphasis on structural horizontal separation of powers implications.

The court of appeal of Tanzania is established under Article 117 of the Constitution, it is the highest Court of the land in terms of hierarchy of judiciary in Tanzania. This is the court of final appeal. The law governing the procedures before the Court of Appeal is the Appellate Jurisdiction Act, and The Tanzania Court of Appeal (Amendments) Rules 2019 which came into force on 26 April 2019. This paper gives a synopsis of the procedures to be undertaken for civil appeals to the Court of appeal of Tanzania a practical perspective. It covers appeals in Land, Labour and normal civil suits. Procedures, necessary documents and timing for each step will be discussed. At the end a discussion will be triggered on challenges faced on the field (a practical perspective).

Judicial independence is constitutionally protected but the precept has been vitiated by instances of political overreach including attempts to have CJIs who are amenable if not pliable. Though all appointees have been eminent jurists, as administrative head of the judiciary they have disappointingly failed to keep the political executive at bay. Twin issues, judges not sitting en banc and their early retirement, provide motive and opportunity for political interference. On both counts, CJIs have done precious little, some even engaging in quid pro quo. CJIs must press for a Constitution Division to sit en banc, ensure appellate jurisdiction is not abused, retirement age of judges is raised and post-retirement engagements by the government is prohibited. Since in a populous democracy political interference is not surprising, it is for CJIs to thwart those machinations by institutionally progressing judicial reforms and individually proclaiming: I am not available.

An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court- (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies that the case is a fit one for an appeal to the Supreme Court; Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.

In the Yagba Area Court Grade 1 holden at Isanlu, Kwara State (now Kogi State) the plaintiff for himself and as representing Ere Community in West Yagba claimed from the Kati family of Egbe also in West Yagba and represented by the defendant on record "a parcel of land belonging to Ogbagbo family in Odo-Ere situated between Lawiri River and Okuta Gigiri hill on both left and right sides of the Federal Road leading from Kabba to Ilorin and between Odo-Ere and Egbe township." The Yagba Area Court Grade I after it carefully reviewed and evaluated the evidence led by both parties held as follows: "From the facts above we are satisfied that the plaintiff was able to establish ownership of the land in dispute as the land of Odo-Ere and therefore the land between Lawiri River and Okuta Gigiri hill between Odo-Ere town and Egbe town is awarded to the plaintiff (Odo-Ere Community)." The defendant, Egbe town who was aggrieved by the decision of the Yagba Area Court Grade 1, appealed to the Upper Area Court sitting at Lokoja. The court allowed the defendant's appeal, set aside the decision of the Yagba Area Court Grade 1 and ordered a re-trial of the case by the Upper Area Court, Ilorin. Both parties were dissatisfied with the decision of the Upper Area Court in Lokoja and appealed to the High Court in Lokoja sitting in its appellate jurisdiction. The court allowed the appeal of the defendant, set aside the decision of the Upper Area Court and the trial Area Court. The plaintiff's claim was dismissed by the High Court in Lokoja. On a further appeal by the plaintiff, Odo Ere town to the Court of Appeal, Kaduna Division, the judgment of the High Court was set aside and that of the Yagba Area Court Grade 1 was restored. The defendant, Egbe town further appealed the decision of Court of Appeal, Kaduna Division to the Supreme court.

The Supreme Court is the highest court in the land and it is established by article 163 of the constitution of Kenya. The jurisdiction of the Supreme Court is provided for exhaustively under the act and is further elaborated under part III and IV of the Supreme Court act CAP 9A laws of Kenya. The court has original appellate and advisory jurisdiction. This submission focuses on the appellate jurisdiction of the court.

An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceedings, that the case involves a substantial question of law as to the interpretation of this Constitution.

In the very first decision reported in the Commonwealth Law Reports, Griffith CJ, Barton and O'Connor JJ mooted whether an appeal lay to the Court from a judgment given after the coming into force of the Constitution but before the coming into force of the Judiciary Act 1903 (Cth). The Constitution, from 1 January 1901, vested the judicial power of the Commonwealth in the High Court and made provision for the appellate and other jurisdiction of the Court. But only the Judiciary Act 1903 (Cth), from 25 August 1903, 'actually constituted' the apparatus and the machinery of the Court; the appellate jurisdiction 'could not, of course, be exercised' before then. The question presented, 'one of difficulty and importance', ultimately did not need to be resolved because leave to appeal would be refused on other grounds in any event.3 Nonetheless, the Court articulated the reasons that supported each of the competing views of the operation of ss 71 and 73 of the Constitution. There was said to be much force in the contention that the jurisdiction of [the lower courts] was, from the first, intended to be subject to the right of appeal to the High Court, and that that right, being a right conferred by the Constitution itself upon suitors, could not be lost or taken away by mere inaction of the Parliament.

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134A: (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. (2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause: (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. (3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.

This paper examines judicial review and judicial power in Nigeria under the 1999 Constitution in relation to the constitution itself and in relation to the political branches of government. Th is is essentially to locate where lays supremacy between the branches and the judiciary particularly the Supreme Court with its final appellate jurisdiction. Judicial review and supremacy of the judiciary had been of recurring academic discuss in some jurisdictions with written Constitutions, particularly the United States from where Nigeria largely borrowed its presidential constitutionalism. This thus suggests that there is a need to examine the controversy within the context of Nigeria’s experience; is it really in the Constitution that creates branches of the government and that is proclaimed to be supreme over all authorities including the judiciary? Is it in the judiciary whose oversight function cuts across the political branches and whose interpretative decisions are binding on the constitution itself and the other branches? Is it in the executive that appoints and removes Justices of the court subject to confirmation by the Senate, or is it in the legislature? The paper argues that the overriding effect of the judicial power of the Supreme Court over all persons and authorities including the Constitution puts the judiciary in supreme position, that being the natural consequence of the power so vested in the judiciary by the “People Themselves.”

In Gillespie v. U.S. Steel Corp., the Supreme Court appeared to endorse a balancing approach to federal appellate jurisdiction, whereby courts could weigh the costs and benefits of an interlocutory appeal in any case. But the Court soon disavowed the balancing approach and today eschews case-by-case determinations of appellate jurisdiction. The common perception, then, is that Gillespie and the balancing approach are dead. But the balancing approach persists in the Courts of Appeals. In a variety of contexts, these courts have relied on the balancing approach to hear appeals. They’ve constructed doctrines based on the balancing approach. And they engage in case-by-case balancing in determining their jurisdiction. Contrary to popular belief, the balancing approach is alive and well in the Courts of Appeals.The balancing approach’s persistence — seemingly in direct defiance of the Supreme Court’s mandate — suggests that appellate judges cannot resist wielding some discretion when defining their jurisdiction. This allure of discretion poses a challenge to the primary goal of the literature on interlocutory appeals: reform. If reform is to happen, it will likely take the form of categorical rules. But if what the balancing approach’s persistence suggests is true — if appellate judges cannot completely forego using discretion in defining their jurisdiction — that threatens to undermine the certainty, predictability, and ease of application of any rules that reform might develop. I thus propose a largely novel approach to interlocutory appeal reform: a combination of categorical rules and a discretionary catchall.

The United States Constitution builds the two great pillars that raise up a vigorously independent judiciary -jurisdiction and tenure. But the independent power of United States courts is more robustly guaranteed by other aspects of the structure of government. The Con stitution's apportionment of lawmaking and law-executing powers among multiple actors in national and state governments guarantees a universally-appreciated need for independent adjudication. Before further considering how the Constitution's other structural arrange ments underwrite the text's provision for an independent judiciary, let us consider that provision. Here are the words through which the American founders created the world's first federal judiciary

PRESENT : > Mr. Justice Muhammad Bashir Jehangiri > > Mr. Justice Sh.Ijaz Nisar > > Mr. Justice Abdur Rehman Khan > > Mr. Justice Sh.Riaz Ahmad > > Mr. Justice Munir A. Sheikh CIVIL APPEAL NO. 1398 & 1399 OF 1999 (On appeal from the orders of High Court of Sindh, Karachi, dated 11-8-1999 and 23-1-1999 respectively passed on Misc. Applications in H.C.A. No. 90 of 1999). CIVIL APPEAL NO. 1398 OF 1999 The Hub Power Company Limited (HUBCO), through its Chief Executive Syed Khurshid Hussain … Petitioner. VERSUS 1. Pakistan WAPDA through its Chairman. 2. Federation of Pakistan through Secretary Water & Power, Ministry of Water & Power, Islamabad … Respondents. CIVIL APPEAL NO. 1399 OF 1999 Pakistan WAPDA … Petitioner. VERSUS 1. The Hub Power Company Limited (HUBCO), through its Chief Executive Syed Khurshid Hussain. 2. Federation of Pakistan through Secretary Water & Power, Ministry of Water & Power, Islamabad … Respondents. MUHAMMAD BASHIR JEHANGIRI, J. The two titled appeals by leave of this Court under Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 are directed against the orders passed by a learned Judge in Chambers of the High Court of Sindh at Karachi in Suit No. 1417 of 1998 and CMAs Nos. 9751, 9752, 10602, 10603 and 399 of 1998 and 8434 of 1999 decided on 26-3-1999. 2. The facts forming the background of the two titled appeals as narrated in the leave granting order are that a Power Purchase Agreement was executed on 3-8-1992 between the parties together with an Implementation Agreement of the even date guaranteeing due performance of the aforesaid Agreement. On the same day, a Sovereign Guarantee was also executed on behalf of the President of the Islamic Republic of Pakistan undertaking to pay the amount falling due under the aforesaid Power Purchase Agreement of the even date. The Power Purchase …

1. Constitutional Framework In 1867 Canada was constituted as an indepen dent constitutional monarchy configured on a federal plan. Now, Canada encompasses ten provinces and two northern territories.1 The Constitution Act, 1867 divides the subjects of legislative competence between the federal and provincial legislatures. Criminal law was placed within the federal sphere and, hence, the Criminal Code of Canada applies in every jurisdiction. We have a unitary judicial system2 in which each province and territory has its own courts, including an appellate court. The Supreme Court of Canada is the final court of appeal from cases commenced in the various provincial and territorial courts. The Supreme Court exercises only limited appellate jurisdiction in sentencing matters.3 While the legal framework of sentencing is federal, Canada has a curious array of federal, provincial and territorial entities involved the implementation of sentences. For a reason which history has entrusted only to the long-since departed participants in the constitutional conferences which occurred between 1864 and 1867, the Constitution Act, 1867 gave the federal Parliament authority over penitentiaries while provincial governments are responsible for local prisons, jails, remand centers and other correctional facilities. The distinction between the two kinds of correctional institutions is

This chapter in the edited collection, Transitions in Caribbean Law, explores the first major decision of the Caribbean Court of Justice (CCJ) in its appellate jurisdiction, Attorney General of Barbados v Joseph, and its expansive read of the right to the protection of the law as an aspect of the rule of law. In that 2006 case, the CCJ spoke of an inherent jurisdiction in the courts to give effect to the right to the protection of the law. It examines the development of unwritten constitutional norms in Caribbean constitutional law, particularly in the early Privy Council decision of R v Hinds on separation of powers. Despite the dubious distinction made between ‘exhaustive’ and ‘inexhaustive’ rights in the Caribbean constitutions by the CCJ, Robinson concludes that the Joseph is an important contribution to the notion that the rule of law is an unwritten constitution norm in the Anglophone Caribbean.

In a common-law jurisdiction, “Supreme Court” is not always the name of a court of final appeal. There are 41 Supreme Courts and Supreme Courts of Judicature with general original jurisdiction. They cover 60 political units. In addition to general original jurisdiction, some of those courts have general appellate jurisdiction. There is a number of political units in which a second appellate consideration is possible.This article provides information about Supreme Courts and Supreme Courts of Judicature with general original jurisdiction. It includes a list with the names of the political units served by Supreme Courts or by Supreme Courts of Judicature with general original jurisdiction; a statement whether a Supreme Court or a Supreme Court of Judicature of a political unit has both general original jurisdiction and general appellate jurisdiction, or only general original jurisdiction; and further information.The goal of this article is to inform librarians, lawyers, solicitors, and barristers about the many court systems in the common-law world, in which the court of general original jurisdiction is named “Supreme Court” or “Supreme Court of Judicature.” Those courts are found in diverse political units, including Australian states and territories, Belize, Brunei, Canadian provinces and territories, Gibraltar, and Samoa. The oldest among them is the Supreme Court of New York, founded more than 300 years ago.

Procedure has often been said to be the handmaiden of justice, and thus the rules of procedure do exist to provide a formal mechanism where justice can be attained expeditiously, fairly and without delay. However, rules of procedure are at times treated as masters of justice rather than merely handmaiden to justice. There thus exist at times a tug of war between the procedural dictates of the law and the dictates of normative and substantive justice. This is more so in the arena of civil litigation and practice. In a bid to cure this mischief, the Kenyan legislature enacted the Statute Law Miscellaneous Amendment Act of 2009 which amended various provisions of the law including, the Civil Procedure Act and the Appellate Jurisdiction Act to provide for Kenyan Courts of Law being guided by the overriding objectives of the various acts of parliament in civil dispute resolution. The amendment brought into perspective what was later coined as the 'Oxygen Principle'. This paper analyzes the application of the Overriding Objective principle in the interpretation and application of rules of procedure in furtherance to the requirements of substantive justice to all parties to a case. In attempting to achieve this objective, this paper shall have due regard to the practice in Kenyan courts, while drawing inspiration from the jurisprudence of other commonwealth countries.

This article evaluates 3,344 appeals to the Israel Supreme Court (ISC) to assess case selection, case outcomes, and rates of dissent and concurrence, with an emphasis on the behavior of individual justices. We show that analyses of judicial activity, and of individual justices’ behavior, in courts with discretionary jurisdiction should account for the court’s case selection process. This finding has implications for studies of all courts with discretionary appellate jurisdiction and for studies of individual judicial behavior. ISC assignment of cases for preliminary screening by individual justices has a substantial non-random component. Over 95% of the discretionary jurisdiction criminal cases were screened by two justices, who significantly differed in the rate at which they referred cases to 3 judge screening panels. Screening outcomes also varied significantly in discretionary civil cases. The rate of granting review was highest in tort cases. The rate of granting review was substantially higher in cases involving female defendants than in cases involving male defendants. With respect to outcomes in cases reaching the merits, the high rate of reversal in discretionary jurisdiction cases is not a consequence of one or two justices’ behavior; granting review of cases to reverse them is an ISC-wide practice. Regardless of the initial screening justice, the reversal rate in discretionary cases, civil or criminal, was well above the 24% to 32% reversal rate in mandatory jurisdiction cases. Dissent rates were low, less than 2% overall and only 3% in discretionary jurisdiction cases. Rates of concurrence with an opinion by an individual justice were substantially higher.

In many patent infringement cases, the only practical way that the plaintiff can obtain relief is on a theory of secondary liability, which is generally referred to as indirect infringement. The remedy in patent cases frequently includes damages for past infringement. Because jury verdicts in patent cases can amount to hundreds of millions of dollars, patent damages have become a hotly litigated issue. Nevertheless, much to the frustration of the litigants in these high-stakes lawsuits, the courts continue to struggle to clarify how damages for indirect infringement should be determined.The Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdiction over patent cases, has deepened the confusion over calculating damages. Two opinions from the Federal Circuit have made contradictory pronouncements on the issue of accounting for proven acts of primary (i.e., direct) infringement in determining damages for indirect infringement. Lucent Technologies, Inc. v. Gateway, Inc. held that the extent of directly infringing use of the patent should be viewed as one of many pieces of evidence for measuring the extent of damages (“the evidentiary approach”). In contrast, Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc. endorsed a rule that enables trial judges to limit damages as a matter of law to proven, enumerated acts of direct infringement of the asserted patents (“the atomistic approach”). The conflict between the two approaches raises fundamental, unanswered questions concerning the relationship between patent infringement and ordinary torts. This Article fills a gap in the literature by identifying, and working toward unraveling, one of the puzzles of indirect infringement. Specifically, it examines what the legal fiction of formally imputing an act of one entity to another — an important tenet of secondary liability in tort — means for patent damages. The answer is surprising: the atomistic approach is consistent with the principles of tort law, but is at odds with well-established, general rules for determining patent damages. Conversely, the evidentiary approach seems to ignore tort law’s imputation principle and embodies the pragmatic, patent-specific damages rules that the atomistic approach eschews. This Article resolves the tension in favor of the evidentiary approach and explains that considerations of policy, logic, and precedent support a damages analysis that reflects fundamental differences between patent law and tort law.

This paper discusses the case for the establishment of an appellate system in international investment law, as put forward notably by the ICSID secretariat. It assess the pros and cons of such an institutional overhaul of the ICSID system, drawing on the experience of other international dispute settlement systems and taking into account factors such as consistency of jurisprudence, quality and accuracy of decisions, finality of awards, costs and speed of proceedings. Having concluded that an institutional overhaul is unlikely and not required, the paper evaluates potential alternatives to an appellate investment system. These include increased consolidation of cases (seen as helpful), broad construction of the existing annulment procedure (unhelpful) and the introduction of a reference procedure modeled on the European Community's experience (the best option).

The German Episcopacy and the Implementation of the Decrees of the Fourth Lateran Council, 1216-1245: Watchmen on the Tower By Paul B. Pixton. [Studies in the History of Christian Thought, Volume LXIV] (Leiden: E. J. Brill. 1995. Pp. xv, 543. $135.00.) The Fourth Lateranum was the most important medieval council. Its seventy canons on such subjects as transubstantiation, the Jews, marriage, and auricular confession have shaped Western culture. The conciliar decrees were to be executed by annual provincial and diocesan synods, episcopal visitations, and triennial general chapters of regulars. Paul B. Pixton examines the implementation of its edicts in Germany before the First Council of Lyons (1245). Innocent III's reform program built on a tradition of synodal activity, but ecclesiastical discipline had broken down after the double election of 1198. The success of Innocent's plans depended on the zeal of individual prelates like Archbishops Dietrich II of Trier and Eberhard II of Salzburg and after 1224 on the leadership of the legate, Cardinal Conrad of Porto. Pixton concludes that this reform effort failed for a number of reasons: the impossibility of reforming society through legislation, the renewal of the papal-imperial conflict, and the contradiction between the council's emphasis on episcopal authority and Roman appellate jurisdiction. This book will be a reference work for any English-speaking scholar who is interested in the thirteenth-century German Church. Nevertheless, I was disappointed. First, anyone who attempts to synthesize what happened in six ecclesiastical provinces will make mistakes that a specialist is likely to spot. Let me cite a few of Pixton's factual errors about Salzburg. Reichenhall is in Bavaria, not Tyrol; Gerhoch of Reichersberg was a provost, not an abbot; St. Victor is the Cistercian abbey of Viktring (pp. 27-31); Eberhard II was a noble, not a ministerial, whereas Rudiger of Radeck, the first bishop of Chiemsee, was an archiepiscopal ministerial, not a noble (p.199); the bishopric of Vienna was established in 1469, not in the late thirteenth century (p. 217); St. Lambrecht is in Styria, not Carinthia (p. 231); and Archbishop-Elect Philip was a Spanheimer, not an Ortenburg (p. 453). None of this is very significant, and I suspect that there are fewer mistakes in the treatment of Mainz and Trier where Pixton is more at home, but some caution is in order. Second, Pixton presents the information "in a chronological fashion in order to reveal relationships between diocesan and provincial synods of specific regions of Germany, and also to suggest the response to papal, legatine, and archiepiscopal stimuli" (p. …

On June 27, 2001, the International Court of Justice (ICJ) held in the case of Germany v. United States of America (LaGrand) that Article 36 of the Vienna Convention on Consular Relations ("VCCR") affords an individually enforceable right to consular access upon arrest or detention in a foreign country.1 In the United States, death penalty opponents applauded the ICJ's finding for its promise of greater due process protection, while states' rights advocates criticized the decision as an unlawful exercise of criminal appellate jurisdiction. LaGrand, in theory, resolves many questions that have plagued American courts: whether Article 36 rights are vested in an individual or a signatory state; whether the right may be privately enforced; whether domestic procedural rules may bar Article 36 claims in certain circumstances; and whether the ICJ's provisional measures are binding upon member states. The LaGrand opinion, however, leaves unclear as many issues as it clarifies. Procedurally, LaGrand has enormous implications for American criminal courts if taken at its word. Yet it remains to be seen how, and if, the American courts will incorporate the ICJ's decision in LaGrand into their jurisprudence. The United States Supreme Court has yet to address the LaGrand issues in a comprehensive manner.2 As a result, courts vary widely in

The Supreme Court's Eleventh Amendment decisions give conflicting signals about what the Amendment does. On one view, the Amendment functions as a forum-allocation principle--immunizing states from liability in suits filed in federal court, but leaving open the possibility that states may be compelled to entertain suits against themselves in their own courts. A separate line of cases, however, implies that state courts enjoy an immunity from suit in their own courts and that nothing in the Constitution withdraws such immunity; on this view, the Eleventh Amendment, by protecting the states from suit in the federal courts, effectively immunizes the states from any damage liability to individuals under federal law. This latter view finds strong support in last term's decision in Seminole Tribe of Florida v. Florida. This article examines the doctrinal support for these competing lines of cases, and looks for ways to reconcile them. The article also considers the rule-of-law ramifications of adopting the latter interpretation of the Amendment. It concludes that so long as officials remain personally liable in damages for their willful violations of federal law, the latter interpretation comports tolerably well with the rule-of-law ideal that for violations of federal rights there be a federally enforceable remedy. If so, then what matters most from a rule-of-law perspective is not so much which of the two interpretations of the Eleventh Amendment the Court adopts, but that it clearly and definitively adopt one or the other.

Among all the world's national assemblies, the United States Congress is virtually unique in its legislative activism and productivity. Unlike Westminsterstyle parliamentary bodies, it writes, processes, and refines its own legislative products, relying to a large degree on "in-house" resources of member specialization and staff assistance. Congress's primacy as lawmaker is mandated by the Constitution and validated by historical experience. Focusing upon the legislative work of Congress follows Woodrow Wilson's admonition that we pay attention to "what Congress actually does and how it does it, with all its duties and all its occupations, with all its devices of management and resources of power."l Congress's agenda and workload shape not only the behavior and operations of the Senate and House of Representatives but also the two chambers' relationships with other governmental branches. Articles I and II of the Constitution are devoted largely to outlining the interwoven lawmaking duties of the legislative and executive branches-from initiation ("[The president] shall from time to time .. . recommend to [Congress's] Consideration such Measures as he shall judge necessary and expedient."2) to implementation ("[H]e shall take Care that the Laws be faithfully executed ....").3 Beginning with George Washington, purposeful presidents have always tried to insert themselves into the legislative process. Franklin D. Roosevelt and his successors institutionalized the "legislative presidency";4 today's chief executives are expected to present legislative agendas to Congress and to provide Capitol Hill allies with guidance and leadership. Congressional interactions with the judiciary are no less significant. Such encounters are, on the whole, less conspicuous than those between Congress and the White House, and until quite recently have received far less attention from scholars and other serious observers. Yet the judicial branch is in large measure a creature of Congress. Article III of the Constitution contains no less than four grants of congressional discretion. Most importantly, the Supreme Court's structure is left to statutory specification; its appellate jurisdiction is to be

There has been considerable debate about the limits of Congress' power under the exceptions clause' to strip the Supreme Court of appellate jurisdiction. Some have argued that Congress may strip the Court of all its appellate jurisdiction, withhold jurisdiction from the lower federal courts, and thereby all but eliminate the judicial branch.2 Others have argued that the Supreme Court has an "essential role" that Congress may not destroy through exceptions.3 Still others have argued that the exceptions clause gives Congress unfettered discretion to distribute appellate jurisdiction among the federal courts-that is, to make exceptions in favor of other Article III courts.4

The vagueness and uncertainty of application of the principles used to determine child custody appeals continue to cause great problems for the legal practitioner who must advise a client aggrieved by a decision at first instance. Child custody is an area where the right of appeal is unrestricted, but appeal court judges have nonetheless shown a marked tendency towards self-restraint in the exercise of their appellate jurisdiction. Two principal reasons are commonly given for this: first, the trial court in a child custody dispute often has a special advantage not possessed by the appeal court, in that it has seen and heard the witnesses; secondly, and more generally, the determination of a child custody dispute involves an exercise of discretion on the part of the trial court, in which the paramount consideration is the welfare of the child. For these reasons, which are considered in detail in the following section, it is perceived to be necessary to allow trial courts a degree of latitude. However, although the necessity for appellate self-restraint is generally accepted, there has been and continues to be wide disagreement as to the form which that self-restraint should take. In addition, there are many reported cases in which an appeal court has acknowledged the need for self-restraint, only to succumb to the temptation to intervene on the facts before it. The result of the absence of a principled justification for intervention is that there is no rational basis upon which parties can assess the strengths of their respective positions.

The jurisdiction of the Roman see is, and always has been, a point of controversy, not merely between the adherents of that see and all other Christians, but even among those who look with reverence akin to devotion to the successor of St. Peter. It is not merely a legal question, it is essentially a theological question, and as a doctrine it must be dejure divino. Accordingly, it has been discussed with that acrimony which as from a psychological necessity is characteristic of so many theological disputes. But discussion of the development of the doctrine and practice does not necessarily involve polemics. For a doctrine may be true or false, and to show this is a matter of exegesis and systematic theology, but to show that as finally stated it was the result of a long development is not to touch upon the question of its truth at all. Thus one may ask as to a doctrine closely connected with that we are to discuss, does the teaching of the Church as stated in the Bull, Unam Sanctam, appear in the second or third century as an article of belief required to be held by all Christians as a condition for receiving the sacraments? To show that it does not so appear, is merely to show what nearly every one acknowledges as to almost any doctrine not involved in modern polemics, that in the earliest ages they were not formulated with any great precision, in fact were expressed in forms sometimes afterward regarded as even heretical. Such a doctrine as the appellate jurisdiction may be studied in the same historical and non-polemical spirit as the doctrines of the atonement, incarnation, grace, or the sacraments.

ALTHOUGH the dynamics of American politics demand perpetual and creative alterations in the constitutional system, the building of the original complex of arrangements on the foundation provided by the framers was probably the most precarious undertaking in America's history. It was the task of Congress to turn the blueprint for a government into an operating reality, and all at one time. Any structural weakness might have brought down the entire edifice or, at least, would have forced some rebuilding at a later time under new stresses and strains. The establishment of the Supreme Court was peculiarly significant since, paradoxically, the Constitution deemed it as coordinate and co-equal with the Presidency and the Congress, and yet the Court was a creature of Congress in the sense that its detailed form and substance depended upon a statutory enactment. Had the framers spelled out in Article III the precise structure of a federal judicial system, prescribed the detailed nature of the Supreme Court's appellate jurisdiction, and explicitly authorized judicial review, much of the conflict which continues to this day might have been avoided. Instead, the Constitution left these important questions open to legislative discretion and the stage was set for frequent legislative-judicial altercations which at times have almost reached an irreparable constitutional crisis.

The Judicial Panel on Multidistrict Litigation (“JPML” or “Panel”) has been functioning effectively for almost 20 years. Indeed, multidistrict consolidation for pretrial proceedings has become essential to the federal courts’ handling of the burden of complex litigation. Yet such consolidation sometimes creates procedural dilemmas of its own. In the last few years, two areas of uncertainty have emerged that interfere with the optimal operation of the multidistrict litigation system. First, courts are perplexed as to the application of ‘law of the case’ doctrine in multidistrict litigation, where cases may fall within the jurisdiction of two or three federal district courts consecutively, having landed briefly in the hands of the JPML, while still other courts may handle certain discovery issues. Second, the cases reflect some confusion concerning which federal courts have appellate jurisdiction over the cases that move among district courts of different circuits. In light of the substantial and growing number of cases drawn into the multidistrict net, these unresolved issues will obstruct and delay the administration of justice.It is the goal of this Article to examine particularly the first of these muddled areas and to suggest how law of the case doctrine should be tailored to fit multidistrict litigation. The necessary starting point is the basic doctrine of law of the case. Part I outlines the contours of the doctrine and details the split among the federal circuits as to how it should be defined and applied. Part II then explains how the content of the doctrine must be adjusted to reflect administrative changes in the handling of cases such as changes of judge, transfer, consolidation, and possible combinations of these three mechanisms. Part II explores, in addition, the threshold question of choice of law that is raised when such administrative changes entail a change of court and the courts involved define the content of the doctrine differently. All of these factors complicate the use of law of the case doctrine in multidistrict litigation. Part III discusses the doctrine in the context of section 1407 litigation, presenting a new synthesis of law of the case to accommodate the peculiarities and fit the needs of multidistrict litigation.

In New Jersey the power to promulgate rules governing the practice and procedure in the state courts is vested in the Supreme Court.' Although the structure of these rules, particularly in the area of appellate review, is relatively straightforward, their application is not without uncertainty. The purpose of this article is to provide a coherent discussion of these rules2 and to illustrate the various avenues of appellate review. Either of two major themes may be reflected in a body of procedural rules dealing with appellate jurisdiction

Raoul Berger stands for the honorable tradition that a scholar must put aside his own social and economic predilections and look only to original sources in seeking the meaning of the United States Constitution. His numerous books and articles have addressed many of the most pressing questions about the organization and prerogatives of the three branches of the federal government, including the President's right to withhold information from Congress,' the congressional power of impeachment,2 the reach of executive war powers,3 the scope of judicial authority under the fourteenth amendment,4 the legitimacy of capital punishment,5 and the congressional power to remove controversial matters from the appellate jurisdiction of the Supreme Court.6 On some of these issues (executive privilege, impeachment, war powers, and jurisdic

Newspapers and legal journals, bar associations, lawyers and judges are quite generally united in a demand for reform in the administration of the criminal law and frequently the demand is accompanied by criticism of the methods of procedure of courts of review in criminal cases which are held largely responsible for delays and failures in the administration of justice. Whether conditions are so desperate that the administration of the criminal law may be properly said to have broken down as an unworkable machine, or to be a disgrace to civilization, as has been emphatically stated by gentlemen whose prominent positions give to their words weight with the public, may well be doubted. It will hardly be accepted as a fair statement of the administration of tle criminal law in America, as has also been declared in the same manner, that if a man has the means to employ able counsel, he can in the great majority of cases escape punishment for crime. The critics of the courts seize upon an extreme case decided in any one of the State or Federal courts where an apparently just conviction has been reversed upon what may be regarded as a merely technical reason and generalizing from it, produce articles having a tendency to induce in the general reader the belief that such cases are fairly typical of the attitude of the courts toward criminal prosecutions. The Supreme Court of Ohio, a year ago, reversed a conviction for murder in which the name of the victim was alleged in the indictment as Percy Stuckey, alias -Frank McCormick, because while the murder of Frank McCormick was proved, there was no evidence that he was the same person as Percy Stuckey or that there ever was such a person as Percy Stuckey. Goodlove v. State, 82 Ohio State, 365. The Supreme Court of Missouri reversed a conviction because of the omission of the word "the" before "State" in the formal conclusion of the indictment which should have been "against the peace and dignity of the State." State v. Campbell, 210 Mo. 202. These cases have been published far and wide and have been frequently referred to as illustrations of the assumed disposition of the courts of appellate jurisdiction in criminal cases to disregard the merits and reverse judgments upon the most technical errors appearing in the record without reference to the guilt of the accused. Ordinarily no reference is made to the decisions in other cases to the contrary of the cases

0 much has been said during the last few years about an international organization which shall bring peace and order to the people of the world and so little about previous efforts of society to achieve the same result that it seems not inappropriate to sketch again the outlines of one of the most successful of those attempts. It might appear rather rash, certainly visionary, to propose that the League of Nations, or Conference on the Limitation of Armament (new style), be empowered not only to administer territories gained by joint conquest, but, also, to recruit armies and levy taxes directly from the people, without the intermediation of national governments; to act as a supreme court, with original jurisdiction in cases arising between nations or against rulers of nations, and with appellate jurisdiction in all cases whether of nations or individuals; and to execute its judgments whether against individuals or against states, even to the extent of making war upon an obstinate state. That would seem a very dangerous array of powers, indeed, and yet, you will agree, this is but a sober summary of the powers actually exercised by such an international authority through nearly two centuries of medieval history. Of the various attempts to achieve international control in the Middle Ages only one need receive our serious attention, however high the hopes and ambitions of the others. This is the one headed by the papacy in the days from Gregory VII. to Boniface VIII. It has been customary to trace its development in the evolution of papal theories and policies of temporal power reaching back all the way to Roman days. That path, however, is a rather tortuous one, like an old and abandoned road through the northern forest. Seldom smooth