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Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George
Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George
Faculty Scholarship
Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.
Even within the biased frame, the test generally works, if not …
Appointments And Illegal Adjudication: The Aia Through A Constitutional Lens, Gary S. Lawson
Appointments And Illegal Adjudication: The Aia Through A Constitutional Lens, Gary S. Lawson
Faculty Scholarship
In 2011, Congress enacted the America Invents Act (“AIA”), largely in order to provide more effective mechanisms for invalidating, or cancelling, already-issued patents. The statute provides for inter partes review, in which patents, on the request of third parties, can be cancelled by an administrative body, the Patent Trial and Appeal Board (PTAB), subject to deferential judicial review. The constitutionality of this scheme is currently (as of January 9, 2018) before the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, but the arguments in that case understandably focus on the consistency of inter partes review …
Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern
Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern
Faculty Scholarship
Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory …
Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Samantha Zyontz, Martin H. Redish, Peter Julian
Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Samantha Zyontz, Martin H. Redish, Peter Julian
Faculty Scholarship
Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …