Law Commons^™

Revisiting Our Administrative System Of Criminal Justice, Benjamin E. Rosenberg

Res Gestae

Nineteen years after Judge Lynch’s piece, "Our Administrative System of Criminal Justice," this Article considers recent developments in the criminal justice system and whether Judge Lynch’s observations have withstood the test of time. It suggests that Judge Lynch’s observation—that our criminal justice system has strayed far from the model of the adversarial system—remains as true today as it was when he made it in 1998. It further explains that developments in the nineteen years since the publication of “Our Administrative System of Criminal Justice” have caused the criminal justice system to stray even further from the adversarial model and in …

Arbitration Without Law: Choice Of Law In Frand Disputes, Eli Greenbaum

Res Gestae

Recent arbitration between InterDigital and Huawei seems to demonstrate the purported advantages of arbitration as a means of dispute resolution. The warring parties subsumed their multiple suits across different jurisdictions and forums into a single binding arbitral process. By virtue of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”), the arbitral award would be enforceable across jurisdictions. But even an agreement to arbitrate requires agreement on certain basic matters. On the most fundamental level, it requires agreement on the substantive and procedural laws governing the dispute, as well as the situs—or location—of the …

A Plan To Strengthen The Paris Climate Agreement, Bryan H. Druzin

Res Gestae

Sustainable use of common-pool resources is extremely tricky to maintain. Indeed, the failure of the Kyoto Protocol is a stark testament to this challenge. This short discussion offers a potential solution to this crisis of coordination. This Article proposes a mechanism to mitigate the impact of the tragedy of the commons and help ensure that the world’s nations live up to their commitments under the Paris Agreement. The challenge to international cooperation that the tragedy of the commons creates is pernicious. The question of how to tackle the tragedy of the commons—and I say this without a trace of exaggeration—is …

Toward A Writing-Centered Legal Education, Adam Lamparello

Res Gestae

The future of legal education—and experiential learning—should be grounded in a curriculum that requires students to take writing courses throughout law school. Additionally, the curriculum should be one that collapses the distinction between doctrinal, legal writing, and clinical faculty, as well as merges analytical, practical, and clinical instruction into a real world curriculum.

The justification for a writing-intensive program of legal education is driven by the reality that persuasive writing ability is among the most important skills a lawyer must possess and a skill that many lawyers and judges claim graduates lack. Part of the problem is that law schools …

Originalism As Thin Description: An Interdisciplinary Critique, Saul Cornell

Res Gestae

My essay was intended as a critique of originalism from the perspective of intellectual history. I pointed out that originalism lacked a rigorous empirical method for analyzing what texts meant in the past. I suppose in some sense it is flattering that Solum has devoted much of his recent article to an attack on my earlier essay. Of course, flattery aside, it would have been more useful if Solum had stated my thesis correctly. For purposes of clarity, I have juxtaposed Solum’s description of my argument with what my essay actually said. Readers will be able to judge for themselves …

State (Un)Separated Powers And Commandeering, Aaron P. Brecher

Res Gestae

This Essay argues that the Court’s line between state judges and other state officials is not as clean as the case law suggests. Specifically, early state constitutions, as well as the British constitutional order prevailing before the U.S. Constitution was enacted—which did not separate powers as rigidly as the U.S. Constitution—combine to undermine the distinction. Taking this line of analysis seriously is not to deny that commandeering state executive or legislative officials raises federalism concerns. But paying more careful attention to early state conceptions of the separation of powers furthers federalist goals in another way: it engenders respect for the …

Actual Innocence In New York: The Curious Case Of People V. Hamilton, Benjamin E. Rosenberg

Res Gestae

It is rare for a case from the New York Appellate Division to be as significant as People v. Hamilton. The case, however, was the first New York appellate court decision to hold that a defendant might vacate his conviction if he could demonstrate that he was “actually innocent” of the crime of which he was charged. Although the precedential force of the decision is limited to the Second Department, trial courts throughout the state are required to follow Hamilton unless or until the appellate court in their own Department rules on the issue. Courts throughout the state are …

Fisa Surveillance And Aliens, Amit K. Chhabra

Res Gestae

No abstract provided.

A Tribute To Ronald Coase: A Legend Misunderstood, Philip L. Fraietta

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No abstract provided.

De Novo Denied: District Courts' Reliance On Camardo Is Clear Error, Brian J. Levy

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No abstract provided.

Commencement Address, Preet Bharara

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No abstract provided.

The Public’S Constitutional Thinking And The Fate Of Health Care Reform: Ppaca As Case Study, Bruce G. Peabody, Peter J. Woolley

Res Gestae

No abstract provided.

Popular Constitutional Values: The Links Between Public Opinion And The Supreme Court's 2011 Term, Peter J. Woolley, Bruce G. Peabody

Res Gestae

No abstract provided.

The Economics Of Kirtsaeng V. John Wiley & Sons, Inc.: The Efficiency Of A Balanced Approach To The First Sale Doctrine, Guy A. Rub

Res Gestae

No abstract provided.

Two Cheers For The Constitution Of The United States: A Response To Professor Lee J. Strang, Patrick Mckinley Brennan

Res Gestae

No abstract provided.

Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman

Res Gestae

No abstract provided.

Apoplectic About Hyperlexis, William D. Araiza

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No abstract provided.

A Conversation On Financial Literacy, Susan Block-Lieb, Andrea Boyack

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No abstract provided.

Honor And Civil Recourse: A Response To Nathan Oman’S The Honor Of Private Law, Benjamin C. Zipursky

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No abstract provided.

A House Of Cards Falls: Why "Too Big To Debar" Is All Slogan And Little Substance, Jessica Tillipman

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No abstract provided.

A Commentary On The Committee On The Rights Of The Child's Definition Of Non-Refoulement For Children: Broad Protection For Fundamental Rights, Alice Farmer

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No abstract provided.

“Private Ordering” Taken A Tad Too Far, Brett H. Mcdonnell

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No abstract provided.

Polls, The Public, And Popular Perspectives On Constitutional Issues, Bruce G. Peabody, Peter J. Woolley

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No abstract provided.

Res Publica: Public Opinion, Constitutional Law, And The Supreme Court’S 2010 Term, Bruce G. Peabody, Peter J. Woolley

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No abstract provided.

A Conversation Without End: Human Rights Law In Perspective?, Colin Harvey

Res Gestae

No abstract provided.

History Redux: The Unheard Voices Of Domestic Violence Victims, A Comment On Aviva Orenstein’S Sex, Threats And Absent Victims, Myrna S. Raeder

Res Gestae

No abstract provided.

Battered Women, Self-Defense, And The Law, Joshua Dressler, Holly Maguigan

Res Gestae

No abstract provided.