Law Commons^™

Protect The Children: Challenges That Result In, And Consequences Resulting From, Inconsistent Prosecution Of Child Pornography Cases In A Technological World, Francis S. Monterosso

Francis S Monterosso

This Note untangles courts’ problems with the prosecution of child pornography defendants and aims to redirect attention to the social impact associated with these crimes. First, Part I provides an introduction to the Note and discusses the background of the Child Pornography Prevention Act. Secondly, Part II sets forth the evolution of the CPPA and its goals and shortcomings. Next, Part III further explains the development of child pornography prosecutions in the United States through two cases that illustrate the government’s desire to prosecute child pornography defendants.

Moreover, Part IV explains the difficulties courts have encountered in the prosecution of …

The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez

Armando G. Hernandez

A simple truism we all learned in our childhood was that the square pegs did not fit into the circular shaped cut-outs. Greek philosophers often struggled with this very same conundrum of squaring the circle. In 1996, the Supreme Court decided Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The case required application of the Court's Erie jurisprudence. Many commentators hailed the case as the ideal moment to clarify the Court's esoteric body of law. However, writing for a six vote majority, Justice Ginsburg held that state law (the square) and federal law (the circle) could be accommodated. …

Evidence In International Criminal Trials: Lessons And Contributions From The Special Court For Sierra Leone, Patrick Matthew Hassan-Morlai

Patrick Matthew Hassan-Morlai

The general aim of this paper is to contribute to the discourse on the development of a system of international criminal justice. In so doing, this paper will pay attention to one aspect – rules of evidence – and examine its role in ensuring the rights to fair trial. The examination is limited to discussing offences relating to the jurisdiction ratione materiae of the SCSL contained in Articles 2-5 of the SCSL Statute.

Social Networking Sites: A Reasonably Calculable Method To Effect Service Of Process, Melodie M. Dan

Melodie M. Dan

SOCIAL NETWORKING SITES: A REASONABLY CALCULABLE METHOD TO AFFECT SERVICE OF PROCESS

The evolution of technology has presented a new method of affecting service of process. Society uses social networking sites to stay in touch with family and friends and to meet new friends. We live in a society where social networking sites are a part of our everyday lives. Such sites allow users to send each other messages publicly or privately, either to their private inboxes or by posting a comment to a user’s profile. In light of this new possible method of service, Courts must determine whether service …

An Overview Of Tolls To Statutes Of Limitations On Account Of War: Are They Current And Relevant In The Post-September 11th Era?, Hon. Mark Dillon

Hon. Mark C. Dillon

The devastation of the attacks that occurred at the World Trade Center on September 11, 2001 included costly disruption to the operation of courts in the City and State of New York. A court facility at Five World Trade Center was destroyed. Attorneys were among the 2,752 persons killed in the event. Law offices were destroyed. Key litigation witnesses and documents were lost forever. Thousands of attorneys were unable to access their work for days. State courts in Manhattan did not reopen for business until September 17, 2001. Amidst the turmoil and confusion, there was a defined set of potential …

A Tale Of Election Day 2008: Teaching Storytelling Through Repeated Experiences, Serge A. Martinez, Stefan H. Krieger

Stefan H Krieger

The article was inspired by a one-day project November 4, 2008, when we supervised a number of clinic students representing voters who had been denied the right to vote. As they represented client after client, we noticed significant improvement in their storytelling skills over a very short period, despite having little training in storytelling theory or techniques. Using our Election Day project as a starting point, the article questions the dominant pedagogical model for teaching storytelling, which focuses primarily on teaching storytelling and narrative theory. We propose a new method, based on cognitive science findings about experiential learning, that emphasizes …

Rules And Tools Of Nonprofit Lobbying, Sharon Wilson

Sharon Wilson

Abstract: This article focuses primarily on the federal tax law restrictions on lobbying and political campaign activities of 501( c)(3) organizations. A brief history of the restrictions on lobbying is followed by an instructional guide for nonprofit organizations and attorneys seeking to advise nonprofits about permissible conduct in this arena. Opportunities for greater political involvement through use of sec 501(h), sec 501©(4) and other strategies that have been deemed permissible by the Internal Revenue Service are explored. An examination of the IRS’s questionable annual examination process for nonprofits is explored.

Refashioning Legal Pedagogy After The Carnegie Report: Something Borrowed, Something New, Debra M. Schneider

Debra M Schneider

The Carnegie Foundation published in 2007 its ground-breaking book titled Educating Lawyers: Preparation for the Profession of Law, in which it pointed out significant pedagogical imbalance in legal education. In particular, the Carnegie report said that law schools should infuse their curricula with more practical and ethical training. How a law school ought to accomplish the Carnegie aim is another challenge, one that this paper squarely addresses.

Traditional legal education is sorely imbalanced. A law student receives rigorous training in legal doctrine and analytical skills—he learns to “think like a lawyer”—but is left with little training in practical skills or …

“T’Was Three Years After Twombly And All Through The Bar, Not A Plaintiff Was Troubled From Near Or From Far.” The Unremarkable Effect Of The U.S. Supreme Court’S Re-Expressed Pleading Standard In Bell Atlantic Corp. V. Twombly, Daniel R. Karon

Daniel R Karon

No U.S. Supreme Court case in recent memory has caused more confusion and suffering than Bell Atlantic Corp. v. Twombly. Post-Twombly commentary falls largely into two camps: Twombly is wrong because it raised Rule 8’s pleading standard or Twombly is right because it did. But scant, if any, discussion exists suggesting that Twombly is right because it didn’t alter this standard. My Article argues that the Court properly honored longstanding Court precedent when deciding Twombly and merely reaffirmed Rule 8’s pleading requirements. After chronicling the Federal Rules’ creation—with an emphasis on Rule 8—my Article dissects the trilogy of U.S. Supreme …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

Structure And Precedent, Jeffrey C. Dobbins

Jeffrey C. Dobbins

The standard model of vertical precedent is part of the deep structure of our legal system. The rules governing that model are largely intuitive, often taught only in passing at law school, and rarely addressed by positive law. While the application of these rules of precedent can be difficult in practice, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. A Ninth Circuit opinion, for instance, is binding on district courts within the Ninth Circuit and on subsequent Ninth Circuit panels; it is not binding on Second Circuit panels. …

Os “Quora” Nos Tribunais Superiores E A Legitimidade De Seus Precedentes: A Decisão Sobre O Recurso Prematuro No Superior Tribunal De Justiça., Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

Adverse Inferences About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance

Dale A. Nance

For at least two centuries, Anglo-American courts have responded to a party’s evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that it is time that the use of such inferences, and invitations to draw them, be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, which have long been noted, but more importantly because they involve a confusion of roles in which the jury is enlisted to participate in the …

Untangling The Web Spun By Title Vii's Referral & Deferral Scheme, Lisa D. Taylor

Lisa D Taylor

Title VII's dual enforcement scheme creates knotty preclusion and subject-matter jurisdiction issues. The statute requires that claims of employment discrimination made in those states or localities with their own administrative enforcement bodies must first be presented locally, and may be pursued in the federal system only after affording the state administrative body time to attempt their resolution. The result of this dual enforcement scheme is that in some cases, a claim comes to federal court after it has already been adjudicated in the state system. Questions then arise as to whether the federal court has jurisdiction to hear the claim …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …

How Can States Protect Their Policies In Federal Class Actions?, Lucas Watkins

Lucas Watkins

More than any other procedural device, class actions have substantive goals. By allowing negative-value suits and collective punishment for widespread wrongs, class actions allow plaintiffs and defendants to protect rights that would otherwise go unvindicated. States also use class actions to implement industrial and consumer protection policies. Despite their importance to state policy, however, many state class action rules do not survive the transition into the federal court system. Under the Erie doctrine, federal courts apply federal class action rules even when state rules are more permissive and even when the state rules are intended to serve important substantive policies. …

“I’M Dying To Tell You What Happened”: The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Peter Nicolas

In Crawford v. Washington and its progeny, the U.S. Supreme Court has re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote 6 of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This manuscript builds on the dictum set forth in footnote 6 of Crawford, the meaning of which the lower courts are just beginning to explore. In the manuscript, I first demonstrate that the …

The Extrapolation Of Defendants' Liabilities Under Cplr Article 16 Where The Plaintiff Is Contributorily Negligent: An Update Toward Resolving A Perceived Ambiguity Of Cplr 1601, Hon. Mark Dillon

Hon. Mark C. Dillon

This article follows the almost century-long development of pure comparative negligence in New York leading to the enactment of CPLR Article 16, which limits a defendant's liability in a multi-tortfeasor action to that defendant's equitable percentage of negligence if 50% or les, subject to exceptions. The article provides an answer to an ambiguity in Article 16 that has existed since its enactment in 1986, of whether a plaintiff's contributory negligence in any action should be deducted from the total percentages of negligence assessed by a trier of fact, and if so, the mechanism by which the percentages of remaining parties …

The Exxon Valdez Case And Regularizing Punishment, Jeffrey L. Fisher

Jeffrey L Fisher

In this Article, the Author discusses the implications of the Supreme Court's recent decision in Exxon Shipping Co. v. Baker for the Court's ongoing punitive damages jurisprudence, as well as for the Constitution's regulation of punishment more generally. The Exxon decision repeals that, notwithstanding modern rhetoric decrying supposedly "skyrocketing" punitive damages awards, the Court is troubled by the common law system of awarding punitive damages not so much because of the size of awards it allows as because of such awards' perceived unpredictability. From this insight, the Author argues that the Court's concerns about large punitive damage awards are therefore …

Inadvertent Commissions Of Fraud: How Far Does The Duty Of Candor Spread?, Benjamin J. Adams

Benjamin J Adams

This article examines the duty of candor to a tribunal after adjudication. New York, in particular, has recently changed their candor requirement. This article argues for disclosure and remediation.

The Hidden Mandate: How Federal Rule Of Evidence 502 Will Push Enterprises To Adopting A More Organized Electronic Filing System, Nicholas A. Matlach

Nicholas A Matlach

Inexpensive storage combined with inefficient procedures result in a catacomb of electronic documents that are only raised during litigation. Recently passed Federal Rule of Evidence requires “reasonable steps” to be taken to prevent disclosure. The judicial flexibility of 502 will allow judges to continue a decade long trend of pushing enterprises to either adopt document management systems or risk losing their privileged information to inadvertent waivers.

Batson Claims Since Miller-El And The Success Of Miller-El In Light Of Habeas Corpus Deference In The Eleventh Circuit, John J. Cronan

John J Cronan

After grappling with the issue of peremptory challenges for nearly fifty years in this country, one wonders if Justice Breyer’s concurrence in Miller-El is simply the best, and sole solution to this perpetual problem. Thus far, it is surprising how little progress has been made following the Supreme Court’s instruction in Miller-El given the fact that many judges seem all to quick to grant deference, generally under the AEDPA, even in the face of arguably unreasonable applications of federal law. Unfortunately, there appears to be little chance of success on habeas review by federal courts for petitioners. Thus, it seems …

Batson Claims Since Miller-El And The Success Of Miller-El In Light Of Habeas Corpus Deference In The Eleventh Circuit, John J. Cronan

John J Cronan

After grappling with the issue of peremptory challenges for nearly fifty years in this country, one wonders if Justice Breyer’s concurrence in Miller-El is simply the best, and sole solution to this perpetual problem. Thus far, it is surprising how little progress has been made following the Supreme Court’s instruction in Miller-El given the fact that many judges seem all to quick to grant deference, generally under the AEDPA, even in the face of arguably unreasonable applications of federal law. Unfortunately, there appears to be little chance of success on habeas review by federal courts for petitioners. Thus, it seems …

Reasonable Efforts To Reunite Families In Child Abuse And Neglect Proceedings: They Aren’T Just For Funding Anymore In Re Rood, 763 N.W.2d 587 (Mich. 2009), Evelyn K. Calogero

Evelyn K. Calogero

The article explores the history of the reasonable efforts to reunify families requirement in state and federal law; explains how the Rood opinion explains what the State Department of Human Services must do to satisfy the reasonable efforts requirement under Michigan law; shows how the Michigan Supreme Court’s decision regarding the Department of Human Services’ duties to non-custodial parents in child welfare proceedings is inconsistent with Michigan statutes, court rules, and the Department’s own procedures; and suggests what advocates for children and their parents must now know about the Department of Human Services’ procedures.

Manipulating Court Doctrine For The Good Of The Common Law And Compusory Arbitration, Richard L. Barnes

richard l barnes

Manipulating Court Doctrine for the Good of the Common Law and Compulsory Arbitration By Richard L. Barnes Abstract: Preston v. Ferrer from the Supreme Court in 2008 shows that the Court is steadfastly committed to fostering arbitration. In the most sweeping terms so far the Court pushed the limits of interstate commerce and reached into the California state court system to override that state’s deference to administrative fact finding. In place of administrative and adjudicatory decision-making the Court again demanded arbitral dispute resolution. This Article covers, in a compact format of approximately 9800 words, the origins of the Federal Arbitration …

The Historical Origins Of The Patterns Of Taxpayer Standing, Charlotte Crane

Charlotte Crane

In this article, I explore the pattern, sometimes described as puzzling, according to which the federal courts have sometimes considered the claims of a local taxpayer sufficient to allow a challenge the activities of the taxpaying entity, while rarely finding the claims of a state or federal taxpayer sufficient. I trace this pattern to the doctrines according to which local governments were seen as having taxing powers conditioned upon the ways in which the funds raised are to be spent. Since such doctrines never applied to impose judiciable limits on the taxing powers of either states or the federal government, …

Where's The Party: Do Class Action Plaintiffs Really Prefer State Courts?, Neil J. Marchand

Neil J. Marchand

Scholars and interest groups have discussed litigants’ behavior in the class action context. This paper uses empirical data to determine whether class action plaintiffs actually prefer to litigate their suits in state courts. Despite well-reasoned conjectures on the subject, to date there is a paucity of empirical data on class action litigation, especially at the state court level. This scarcity has thwarted analysis of the likelihood of class certification in the state courts, the Class Action Fairness Act of 2005’s (CAFA) total impact on the judiciary, and the predictability of class action litigation. This study aims to start filling the …

The Effect Of State Law On The Judge-Jury Relationship In Federal Court, Richard Worf

Richard Worf

This article takes on the conventional wisdom, which says that the judge-jury relationship in diversity cases is governed solely by federal law. It shows that state law may exert a meaningful influence on judge-jury rules under Erie's constitutional holding, Hanna's twin aims test, or a properly-conceived Byrd balancing test. The first part establishes a new framework for analyzing judge-jury issues in diversity, relying heavily on the Supreme Court's decision in Gasperini v. Center for Humanities, Inc. The next two parts apply the framework to two practical problems--sufficiency and allocation of issues to judge and jury--showing that state law should play …

Tainted Loans: Towards A Mass Torts Approach To Subprime Mortgage Litigation, Raymond H. Brescia

Raymond H Brescia

A poison has entered the financial bloodstream. The subprime mortgage crisis and the wider financial crisis it has spawned have caused the erosion of trillions of dollars in wealth, destroyed whole communities and the dislocation of millions of homeowners. Yet, unlike in other situations where toxic products have caused widespread harm, to date, we have not seen an avalanche of litigation, large jury awards, massive settlements compensating victims and financial ruin for the distributors of those products. Some of this is changing, however. Litigation arising out of the present financial crisis is hitting the courts, including suits alleging discrimination in …

Recent Private International Law Developments Before The Supreme Court Of Canada, Antonin I. Pribetic

Antonin I. Pribetic

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd's Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta's Limitations Act, governs when a party seeks the recognition and enforcement in Alberta …