Law Faculty Scholarship
Permanent URI for this collectionhttps://hdl.handle.net/10601/18
The dynamic faculty of Texas Tech University School of Law continually writes books, articles, and other scholarly materials on a wide range of law-related issues. This collection showcases the scholarly publications written by Tech Law faculty members.
Please click on Browse by issue date, author, title or type under This Collection to see all items.
Browse
Browsing Law Faculty Scholarship by Author "Baker, Thomas E."
Now showing 1 - 20 of 39
- Results Per Page
- Sort Options
Item 2020 Year-end Report on the Judiciary(Pepperdine Law Review, 1997) Baker, Thomas E.Professor Baker reports on his startling “glimpse into the future” of the federal judiciary. Writing as the retiring Chief Justice of the Supreme Court in the year 2020, Professor Baker uses current trends to hypothesize about the impacts of changing demographics, colossal docket growth, federalization of both criminal and civil law, badly-needed appellate court reform and expansion, and, of course, technology.Item Ambiguous Independent and Adequate State Ground in Criminal Cases: Federalism along a Mobius Strip(Georgia Law Review, 1985) Baker, Thomas E.Professor Baker discusses the attempts of the United States Supreme Court to determine whether cases have been adequately decided upon independent state grounds. In doing so, Baker critiques the new methodology employed by the Court in Michigan v. Long and the lack of legal justification from which the methodology springs.Item Assessment of Past Extramural Reforms of the U.S. Courts of Appeals(1994) Baker, Thomas E.Professor Baker posits several radical changes to the structure of the federal appellate courts to ease the growing caseload. First, he suggests restricting the jurisdiction of the federal district courts. Second, Professor discusses the merits of using alternative dispute resolution. Next, he discusses the merits and pitfalls of expanding, dividing and even establishing a specialized appellate judiciary. Finally, he discusses improving federal legislation to ease the load on the federal appellate courts.Item Bibliography for the United States Courts of Appeals(Texas Tech Law Review, 1994) Baker, Thomas E.Professor Baker’s bibliography was compiled for his book, Rationing Justice on Appeal - The Problems of the U.S. Courts of Appeals, published in 1994 by the West Publishing Company. That book is a general inquiry into the question whether the United States Courts of Appeals have broken Judge Hand's commandment already (“If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice,”) and, if not, whether the Congress and the Courts inevitably will be forced to yield to the growing temptation to ration justice on appeal. This is intended to be a complete and comprehensive bibliography of all the books and articles dealing with the United States Courts of Appeals available through June 1993.Item Catalogue of Judicial Federalism in the United States(South Carolina Law Review, 1995) Baker, Thomas E.The literature on the United States Constitution and the Supreme Court of the United States would fill an entire library. Professor Baker prepares a list of books which likely would be of interest to curious readers, both lawyers and non-lawyers alike, who want to learn more about the basic principles of the Constitution. Each book is listed only once and the entries are arranged in eight broad and overlapping categories: civil rights and civil liberties; constitutional history; constitutional law; constitutional philosophy; constitutional politics; Supreme Court biography; Supreme Court cases; Supreme Court history.Item Commentaries: the Need for a New National Court(Harvard Law Review, 1987) Baker, Thomas E.Professors Baker and McFarland ponder the caseload crisis besetting the U.S. Supreme Court and the attending failure in uniformity in national rulings. They then provide two broad solutions with multiple alternatives, substantially reducing the Court's non-conflicts caseload to allow it to resolve more conflicts or by substantially increasing national appellate capacity outside the Supreme Court.Item A Compendium of Proposals to Reform the United States Courts of Appeals(University of Florida Law Review, 1985) Baker, Thomas E.In this essay, Professor Baker discusses proposals to reform the federal court system’s middle tier. After an introduction, section two considers the ideal role of the intermediate court in the federal judicial institution. Section three addresses current problems within the courts of appeals. Sections four and five discuss intramural and extramural reforms, respectively. Intramural reforms involve changes in how the courts of appeals themselves choose to perform within their traditional role itself, while extramural reforms involve congressional changes in the role of the courts of appeals. Professor Baker also addresses most of the reforms that have been tried or proposed in the various courts of appeals. While Professor Baker acknowledges that the respective circuit courts are quite different and that the differences will likely remain unless a major structural extramural reform occurs, Baker posits that some value exists in collecting these proposals in one place. The essay concludes by noting that the present structure of the federal court system may no longer serve its intended purpose, which the essay contends is “to deliver the best quality of justice at the least cost in the shortest amount of time” (quoting Chief Justice Burger). Professor Baker argues that to preserve and further what remains of the appellate ideal, Congress must consider reforming the structure of the federal courts of appeals. Baker urges Congress to develop a long-range perspective to the current problems through careful study, and by always keeping in mind the purpose of the federal judicial institution.Item Constitutional Bibliography(William & Mary Bill of Rights Law Review, 1996) Baker, Thomas E.;The literature on the United States Constitution and the Supreme Court of the United States would fill an entire library. Professor Baker prepares a list of books which likely would be of interest to curious readers, both lawyers and non-lawyers alike, who want to learn more about the basic principles of the Constitution. Each book is listed only once and the entries are arranged in eight broad and overlapping categories: civil rights and civil liberties; constitutional history; constitutional law; constitutional philosophy; constitutional politics; Supreme Court biography; Supreme Court cases; Supreme Court history.Item Constitutional Criminal Procedure(1981) Baker, Thomas E.This article discusses decisions of the Eleventh Circuit and also decisions of the former Fifth Circuit during the survey period of January 1, 1981, to December 31, 1981. Of the twenty-three individual rights guaranteed in the first eight amendments to the Constitution, twelve relate to criminal procedure. Because of the founding fathers’ emphasis in this area, which has been carried forward by the court, constitutional criminal procedure dominates the workload of the courts of appeal. During the survey period, the court decided more than three hundred appeals related to constitutional criminal procedure. The article focuses on the principal areas of concern in constitutional criminal procedure during the survey period. The article begins with an introduction. Section two discusses appeals challenging arrests based on violations of the Fourth Amendment. Section three analyzes searches and seizures, explaining that the protection of the Fourth Amendment comes into play if, and only if the government, as searcher and seizer, has violated an individual’s reasonable expectation of privacy. Section four discusses the Fifth Amendment privilege against self-incrimination. Section five discusses the limits of a defendant’s constitutional guarantee against double jeopardy. Finally, section six discusses components of the Sixth Amendment right to counsel. Section seven consists of a brief conclusion.Item Constitutional Criminal Procedure(Mercer Law Review, 1981) Baker, Thomas E.This article discusses decisions of the Eleventh Circuit and also decisions of the former Fifth Circuit during the survey period of January 1, 1981, to December 31, 1981. Of the twenty-three individual rights guaranteed in the first eight amendments to the Constitution, twelve relate to criminal procedure. Because of the founding fathers’ emphasis in this area, which has been carried forward by the court, constitutional criminal procedure dominates the workload of the courts of appeal. During the survey period, the court decided more than three hundred appeals related to constitutional criminal procedure. The article focuses on the principal areas of concern in constitutional criminal procedure during the survey period. The article begins with an introduction. Section two discusses appeals challenging arrests based on violations of the Fourth Amendment. Section three analyzes searches and seizures, explaining that the protection of the Fourth Amendment comes into play if, and only if the government, as searcher and seizer, has violated an individual’s reasonable expectation of privacy. Section four discusses the Fifth Amendment privilege against self-incrimination. Section five discusses the limits of a defendant’s constitutional guarantee against double jeopardy. Finally, section six discusses components of the Sixth Amendment right to counsel. Section seven consists of a brief conclusion.Item Constitutional Law: Justiciability(Loyola Law Review, 1981) Baker, Thomas E.This 1981 article discusses principles of federal constitutional law. Professor Baker notes that the constitutional decisions of the courts of appeals will continue to increase in number and importance as the burgeoning federal caseload grows. Professor Baker analyzes how the Fifth Circuit dealt with constitutional principles in the year preceding the article. The article commences with a discussion of cases dealing with justiciability issues. The justiciability issues discussed include standing, mootness, advisory opinions, political questions, ripeness, and Eleventh Amendment issues. Next, Professor Baker discusses cases construing the Commerce Clause. Next, the article discusses cases dealing with due process issues, both substantive and procedural. After the due process section, the article discusses cases pertaining to First Amendment jurisprudence. In discussing First Amendment activity of citizens, the article examines the doctrines of overbreadth, vagueness, and least restrictive means. The article also discusses the First Amendment in the government employment setting before discussing the law of defamation, free association, and religious activity. Finally, the article includes a sample of Fifth Circuit cases where the claim involved a violation of the Equal Protection Clause. Professor Baker includes cases using the reasonableness standard as well as cases using the strict scrutiny standard.Item Dam Federal Jurisdiction(Emory Law Journal, 1983) Baker, Thomas E.Judge Hill and Professor Baker describe briefly the decisions of the United States Supreme Court during the 1981 Term in the broad field of federal jurisdiction, and compare and contrast those decisions with the past decisions of the United States Court of Appeals for the Eleventh Circuit. They also evaluate how those decisions singularly and collectively narrow and broaden the jurisdiction of the federal courts.Item Deferred Fine: An Alternative Disposition for Class C Misdemeanors(Texas Bar Journal, 1983) Baker, Thomas E.This 1983 article discusses article 45.54 of the Texas Code of Criminal Procedure. The amendments had been recently enacted at the time of the article. Before these amendments, the Justice of the Peace and Municipal Courts of Texas lacked statutory authority to probate any fine assessed for Class C misdemeanors. The enactment of article 45.54 provided these courts probation authority, without ever expressly referring to it as such. In the article, Professor Baker and Professor Bubany consider the terms of the legislation, its potential uses, and some likely problems in its applications. The article concludes by noting that the ultimate significance of the new deferral procedure cannot be fully discerned. The authors point out, however, that because of its potential significance, article 45.54 warrants careful consideration by attorneys and judges involved in misdemeanor cases.Item Eleventh Circuit's First Decade Contribution to the Law of the Nation(Nova Law Review, 1994) Baker, Thomas E.Professor Baker provides a broad overview of the first decade of the Eleventh Circuit Court. Starting with a brief history of the events giving rise to the court’s creation, he analyzes the court’s leading decisions in the areas of administrative law, antitrust law, civil procedure and federal jurisdiction, criminal law, evidence law, labor law, and taxation. Professor Baker ends with laudatory comments on the court’s ability to establish a unique identity both from its predecessor, the 5th Circuit, and from the other circuits.Item Exercising the Amendment Power to Disapprove of Supreme Court Decisions: A Proposal for a Republican Veto(Hastings Constitutional Law Quarterly, 1995) Baker, Thomas E.Professor Baker expounds on the shortcomings of the modern Supreme Court, specifically the rise of indeterminate jurisprudence relying, not on the Constitution, but five justices’ votes to determine the supreme law of the land. To combat this, he proposes liberal use of a so-called “republican veto” whereby Congress immediately passes constitutional amendments repealing an unpopular Court decision, to be approved within six months to one year by the states. Professor Baker then expounds in detail on the likely form that the process would take and answers criticisms of the proposal.Item Federal Jurisdiction(Texas Tech Law Review, 1985) Baker, Thomas E.In this article, Professor Baker examines several Fifth Circuit cases dealing with the issue of federal jurisdiction during the survey period of July 1, 1983, to June 30, 1984. Because federal courts are courts of limited jurisdiction, there are only certain types of cases a federal court may decide. In the first section of the article, Professor Baker explains that his task is to inform the reader of general survey developments in the area of federal jurisdiction during the survey period. Section two discusses the judicial power of the United States, focusing on the areas of pendent jurisdiction, standing, and mootness. Section three discusses cases dealing with general federal question jurisdiction and civil rights jurisdiction. Section four discusses cases dealing with diversity jurisdiction. The discussion includes general issues in diversity jurisdiction, a discussion of section 1359 of the Unites States Code specifically, and the Erie Doctrine. The fifth and final section discusses cases dealing with federalism issues, or the relationship between the federal and state governments. In this section, Professor Baker analyzes issues of sovereign immunity, abstention, and habeas corpus. The leitmotif of the article is the process by which the Fifth Circuit has determined whether a piece of litigation appropriately belongs in or out of the federal court.Item Federal Jurisdiction: Thrust and Parry(Litigation, 1985) Baker, Thomas E.In this article, Professor Baker analogizes a litigator’s task in understanding federal jurisdiction to a fencing match because of the special art and form required for both activities. Because federal courts are courts of limited jurisdiction, a case must pass two tests before a federal court may hear the case. First, the case must fall within the scope of Article III of the Constitution, the case and controversy requirement. Second, the case must fall within the scope of some particular jurisdiction enabling act of Congress. If the case fails either test, the federal court does not have jurisdiction. The presumption is against federal jurisdiction, and the party invoking federal power must rebut that presumption. In the article, Professor Baker focuses on the “thrusts” and “parries” involved in answering two questions: does the federal court have the power to hear the case, and should the court exercise that power. The “thrusts” are arguments against federal jurisdiction, and the “parries” are the responses to those arguments. The “parries” contend that the federal court does have the power to hear the case, and that the court should exercise that power. Professor Baker concludes by noting that federal jurisdiction is complicated, sophisticated, and theoretical. Baker challenges the litigator to be equal to the challenge, and to strive for mastery.Item The History and Tradition of the Amount in Controversy Requirement: A Proposal to "Up the Ante" in Diversity Jurisdiction(Federal Rules Decision, 1985) Baker, Thomas E.In this article, Professor Baker argues that Congress should increase the amount in controversy required to trigger diversity jurisdiction. At the time of the article, the amount in controversy requirement was $10,000.00, which Congress had set in 1958. The first section of the article highlights a problem that is virtually undisputed among federal jurisdiction gurus: the federal courts have an unmanageably large caseload. Professor Baker explains that any reformation of general diversity jurisdiction raises federalism issues, and proposes that Congress increase the amount, consistent with historic theory and contemporary reality of diversity jurisdiction. Section two explains the history of the amount in controversy; Professor Baker contends that over the years, three distinct policy rationales have framed the debate over the legitimacy and the sufficiency of the amount in controversy requirement: judicial federalism, cost efficiency, and caseload constraints. Professor Baker posits that judicial federalism is the first and foremost consideration in the history of the jurisdictional amount requirement; however, the coincident lesser considerations of cost efficiency and caseload constraints are discussed as well. Section three argues that it is time for Congress to increase the jurisdiction amount, and then considers how much of an increase is appropriate. The fourth and final section contends that postponing an increase any longer is at odds with the history and tradition of federalism. Professor Baker concludes by urging Congress to act now in raising the amount in controversy requirement.Item Imagining the Alternative Futures of the U.S. Courts of Appeals(Georgia Law Review, 1994) Baker, Thomas E.Any number of extramural or structural reforms have been proposed over the years to solve the present problems and to meet the future needs of the United States Courts of Appeals. Some have been on the drawing board for a long time, while others are much more novel. In this article, Professor Baker gathers the more provocative extramural or structural proposals that have coalesced thus far in the decades-long debate over what Congress should do about the intermediate federal appellate courts. The Final Report of the Federal Courts Study Committee is the point of departure for this "inquiry and discussion."Item Impropriety of Expert Witness Testimony on the Law(University of Kansas Law Review, 1992) Baker, Thomas E.Professor Baker weighs in on a new trend of allowing expert opinion on the status of the law. He begins with a brief history of lay and expert opinion testimony and continues with an analysis of Rule 702 of the Federal Rules of Evidence before concluding that expert opinion on the law simply has no place in federal practice.