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Court Review: Volume 43, Issue 3 •Fi Complete Issue University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Court Review: The Journal of the American Judges Association American Judges Association Fall 2006 Court Review: Volume 43, Issue 3 – Complete Issue Follow this and additional works at: https://digitalcommons.unl.edu/ajacourtreview Part of the Jurisprudence Commons "Court Review: Volume 43, Issue 3 – Complete Issue" (2006). Court Review: The Journal of the American Judges Association. 248. https://digitalcommons.unl.edu/ajacourtreview/248 This Article is brought to you for free and open access by the American Judges Association at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Court Review: The Journal of the American Judges Association by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Court ReviewVolume 43, Issue 3 THE JOURNAL OF THE AMERICAN JUDGES ASSOCIATION TABLE OF CONTENTS EDITORS REMARKS Judge Steve Leben Kansas Court of Appeals 112 Remarks on Judicial Independence Professor Alan Tomkins Ruth Bader Ginsburg University of Nebraska ASSISTANTS TO THE EDITOR Kimberly Applequist University of Nebraska ARTICLES Rachel Sharpe Kansas Court of Appeals 116 Recent Civil Decisions of the United States Supreme Court: The 2006-2007 Term EDITORIAL BOARD Judge B. Michael Dann Charles H. Whitebread National Institute of Justice Julie Kunce Field Fort Collins, Colorado 132 Recent Criminal Decisions of the United States Supreme Court: Professor Philip P. Frickey The 2006-2007 Term University of California at Berkeley Charles H. Whitebread Mark D. Hinderks Overland Park, Kansas Judge Leslie G. Johnson American Institute for Justice 140 Jailing Ourselves: Standards Used for Declaring United States Citizens to Be Enemy Combatants Professor Steven Lubet Joseph Carl Storch Northwestern University Judge Gregory E. Mize Washington, D.C. Elizabeth Neeley, Ph.D. DEPARTMENTS University of Nebraska 110 Editor’s Note C. Robert Showalter, M.D. Harrisonburg, Virginia 111 President’s Column Professor Charles H. Whitebread University of Southern California 152 The Resource Page NATIONAL CENTER FOR STATE COURTS STAFF Charles F. Campbell Managing Editor Court Review THE JOURNAL OF THE AMERICAN JUDGES ASSOCIATION Volume 43, Issue 3 Fall 2006 Court Review, the quarterly journal of the American EDITOR’S NOTE Judges Association, invites the submission of unsolicited, original articles, essays, and book reviews. Court Review e welcomed Alan Tomkins as coeditor of Court Review in the last seeks to provide practical, useful information to the work- ing judges of the United States and Canada. In each issue, issue. This issue marks my return to Court Review from the over- we hope to provide information that will be of use to all leadership of the American Judges Association (see page 111 judges in their everyday work, whether in highlighting W new procedures or methods of trial, court, or case man- for the new president’s opening remarks). I certainly enjoyed my year as AJA agement, providing substantive information regarding an president, but it will be great to be able to refocus on Court Review and its role area of law likely to be encountered by many judges, or by as an aid to judges both in doing their daily work and in protecting the role providing background information (such as psychology or other social science research) that can be used by judges of independent judges in our society. in their work. Guidelines for the submission of manu- For those of you who were unable to attend the AJA’s annual educa- scripts for Court Review are set forth on page 128. Court Review reserves the right to edit, condense, or reject mate- tional conference in Vancouver in September 2007, we will bring you some of rial submitted for publication. the highlights in this and coming issues. In this issue, we present the remarks Court Review is in full text on LEXIS and is indexed in the of United States Supreme Court Justice Ruth Bader Ginsburg on judicial inde- Current Law Index, the Legal Resource Index, and pendence. She was a delightful guest at our LegalTrac. conference, and we believe you will find her Letters to the Editor, intended for publication, are wel- remarks of interest. come. Please send such letters to one of Court Review’s editors: Judge Steve Leben, 301 S.W. 10th Ave., Suite This issue also includes Professor 278, Topeka, Kansas 66612, email address: Charles Whitebread’s annual review of recent [email protected]; or Professor Alan Tomkins, 215 decisions of the United States Supreme Court. Centennial Mall South, Suite 401, PO Box 880228, Lincoln, Nebraska 68588-0228, email address: atom- One of the highlights of each of AJA’s annual [email protected]. Comments and suggestions for the educational conferences is Professor publication, not intended for publication, also are wel- come. Whitebread’s presentation of commentary about these decisions. In Vancouver, Justice Advertising: Court Review accepts advertising for prod- ucts and services of interest to judges. For information, Ginsburg both attended Professor contact Deloris Gager at (757) 259-1864. Whitebread’s presentation and responded to Photo credit: Mary Watkins (maryswatkinsphoto@ it. Even without her insightful comments, earthlink.net). The cover photo is of the Washington though, having an overview of the past year’s decisions of the Court will be of County Courthouse in Machias, Maine. The courthouse was built in 1853; the cupola and bell were added in interest to most judges. We invite you to attend our 2008 annual educational 1868. The courthouse is listed on the National Register conference (September 7-12 in Maui, see page 151) for Professor Whitebread’s of Historic Places. update on the decisions of 2008. ©2008, American Judges Association, printed in the This issue concludes with an article by Joseph Storch on the stan- United States. Court Review is published quarterly by the dards under which the United States is holding its own citizens as enemy American Judges Association (AJA). AJA members receive a subscription to Court Review. Non-member sub- combatants. Because those standards have not been explicitly detailed by the scriptions are available for $35 per volume (four issues government, Storch’s informed surmise about the standards being used raises per volume). Subscriptions are terminable at the end of any volume upon notice given to the publisher. Prices are important questions and provides some initial conclusions. subject to change without notice. Second-class postage In a future issue, we will follow up on another presentation made at paid at Williamsburg, Virginia, and additional mailing offices. Address all correspondence about subscriptions, the Vancouver AJA conference—the AJA’s first “white paper,” which was pre- undeliverable copies, and change of address to sented and adopted by the AJA at the Vancouver conference. That paper rec- Association Services, National Center for State Courts, Williamsburg, Virginia 23185-4147. Points of view or ommends a number of steps judges and courts can take to increase the per- opinions expressed in Court Review are those of the ception of procedural fairness in our courts. We have a special issue in the authors and do not necessarily represent the positions of the National Center for State Courts or the American works on that topic; it will include—but go beyond—the paper presented in Judges Association. ISSN: 0011-0647. Vancouver. Before the special issue on procedural fairness, we’ll have a spe- cial issue on the use of social-science concepts, including psychology, in the Cite as: 43 CT. REV. ___ (2006). courts. Stay tuned. — Steve Leben 110 Court Review President’s Column Eileen Olds I can never say enough what an honor and a privilege it is to Self-representation by litigants is at an all-time high, and this have been elected to serve as your 46th president of the complicates access issues even more. The risk for inefficien- American Judges Association. I have used that time since our cies, as well as many unintended consequences, are expensive annual conference in Vancouver to crystallize my vision of and time consuming for the court system. It is the pro se liti- what I would like to accomplish during my tenure and of what gant who most often confuses procedural fairness with per- I believe we can accomplish together. The potential to see ceived fairness. I am also convinced that we can do more to dreams realized is what keeps us going! Like many of you, I educate the public about our roles, authority, and limitations as have concluded that judges in general—and the members of judges. My “Tell It to the Judge” initiative is designed to open AJA in particular—must seize the opportunity to improve our the dialogue between stakeholders in the judicial system and delivery of services within the justice system and to address the the public. It is more than fitting since we live during a time in continuing concerns that we as judges have. history where there is raging debate over the role of judges in When I joined AJA in 1995, I never envisioned leading this our society. most important and distinguished body of judges from all Like you, I have seen a progressive influx of mentally ill per- states and provinces, from different levels and jurisdictions, sons in our courtrooms. In Virginia alone, 15% of jail and and from courts with varying subject matters. prison inmates have a serious mental illness, and What I now know for sure is that wherever we 43% percent of juveniles in detention are diag- sit, we have many commonalities that bind us. nosed with mental and emotional disorders. When I first became a member, none of the Virginia’s experience is typical. We judges must following—cyber-crimes, security concerns, elec- examine responsible and necessary steps to deal tion reform, multilingual litigants, caseflow man- with this: the potential for criminalization of agement, court technology, domestic-violence mental illness is something we cannot afford to protective orders—were at the forefront.
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