Law Commons^™

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

Boardroom Diversity: Why It Matters, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for an organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? How might women and people of color best cultivate the skills necessary …

Rules Are Made To Be … Re-Examined: An Alternative Approach To The Rules Enabling Act And Its Subsequent Effect On Federal Rule 15(C), Francis R. Brossette

Francis R Brossette

Congress has the authority to make procedural rules for federal courts but delegated that authority to the Supreme Court by enacting the Rules Enabling Act (REA). The REA authorizes the Supreme Court to promulgate rules for providing a uniform system of practice and procedure for federal courts. Throughout the Court’s complicated history with the REA, an issue of interpretation has arisen. The REA’s second sentence prohibits rules that would affect substantive rights. And so the question that must be answered is this: When does a rule affect substantive rights? This Comment purports to answer that question.

Before 1938, the Court …

Evaluating Contracts For Customized Litigation By The Norms Underlying Civil Procedure, Colter Paulson

Colter Paulson

Recent scholarship on the potential for contractual modifications of litigation procedure focuses on contractual theories of enforcement, with constraints supplied by public policy. But this approach ignores the fact that such contracts purport to bind a third-party, the court, that did not agree to change its procedures. Nor can contractual theories of enforcement fully account for the societal and institutional interests in existing procedures. These problems are resolved, however, when contractual procedures are seen primarily as procedures, rather than as contracts, and are evaluated in light of the norms underlying civil procedure.

These norms are found both in the explicit …

Changing The Paradigm Of International Criminal Law: Considering The Work Of The United Nations War Crimes Commission Of 1943-1948, Daniel T. Plesch, Shanti Sattler

Daniel T Plesch

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943-1948 by Dr Dan Plesch and Shanti Sattler This article discusses the precedents of the largely forgotten United Nations War Crimes Commission (U.N.W.C.C.) of 1943-1948. The work of this multinational body should be regarded as a source of customary international law. We seek to introduce the U.N.W.C.C. and the thousands of national trials it supported into modern discourse about the development of international criminal justice and argue why they are relevant to current deliberations. The article concludes that the U.N.W.C.C. has been …

Vanishing Point: Alzheimer's Disease And Its Challenges To The Federal Rules Of Evidence, Ann Murphy

Ann Murphy

ABSTRACT Vanishing Point: Alzheimer’s Disease and Its Challenges to the Federal Rules of Evidence As of 2012, an estimated 5.4 million Americans suffer from Alzheimer’s disease (AD). By the year 2030, due to the overall aging of our population, the number of individuals with AD is expected to increase dramatically. Courts will consequently confront evidentiary issues involving parties, defendants, witnesses, and victims who are suffering from various stages of the disease. Testimony of course involves descriptions of events that happened in the past and thus frequently involves memory. This article explores three specific areas of evidence that will be affected …

What Do Kim Kardashian And Lance Armstrong Have In Common?: Celebrity Complaints In The Classroom, Amy K. Langenfeld

Amy K Langenfeld

Every day brings a report of a celebrity suing or being sued. The complaints initiating these suits are available online within hours. Regardless of the merits or outcomes of these complaints by or against celebrities, celebrity complaints are a rich source of samples for the law school classroom. As supplements to course materials in civil procedure or legal writing, celebrity complaints are likely to generate discussion for several reasons. First, they show a range of strategies and persuasive writing techniques. Second, they engage students because they are real world documents, and because they have a pop culture setting. Third, they …

An Inconvenient Forum: Altering The Doctrine Of Forum Non Conveniens For Human Rights Claims Under The Alien Tort Statute, Lynn Ta

Lynn Ta

This Article proposes a new approach to the doctrine of forum non conveniens. Traditionally, forum non conveniens has been considered a non-merits decision that does not require a prior determination of subject matter jurisdiction. This Article argues that this approach significantly disadvantages foreign plaintiffs who bring human rights claims under the Alien Tort Statute because it quickly and automatically dismisses such cases without considering either the U.S. interest in adjudicating human rights cases or the gravity of human rights violations. Both these considerations should trump the more mechanical analysis conducted under the traditional forum non conveniens model. The central thesis …

The New Scheme For Foreign National Prisoners: Vigilance Is Key, Patrick Matthew Hassan-Morlai

Patrick Matthew Hassan-Morlai

The provision governing the Tariff Expired Removal Scheme (TERS) is contained in section 32A of the Crime (Sentences) Act 1997 as inserted by section 119 of the LASPO Act. In broad terms, TERS applies only to foreign national prisoners whom the secretary of state can remove from the UK if the foreign national prisoner is serving a life sentence that includes an IPP sentence, has served their minimum term, i.e. tariff, and is liable to removal from the UK. Section 119 adopts the definition of liability to removal from the UK in section 259 of the Criminal Justice Act 2003.

Offensive Venue: The Curious Use Of Declaratory Judgment To Forum Shop In Patent Litigation, Chester S. Chuang

Chester S. Chuang

Forum shopping is widespread in patent litigation because there are clear differences in outcomes among the various federal districts. An accused patent infringer that is sued in a particularly disadvantageous forum can file a motion to transfer to a more convenient forum, but the general consensus is that such motions are difficult to win. Accordingly, accused infringers often file declaratory judgment actions to forum shop. Such actions allow accused infringers to preemptively sue the patent owner in the accused infringer’s preferred forum, and are considered by many to be the best way for accused infringers to play the forum shopping …

A Company’S Voluntary Refund Program For Consumers Can Be A Fair And Efficient Alternative To A Class Action, Eric P. Voigt

Eric P. Voigt

Consumer product companies are establishing internal programs where they are voluntarily compensating consumers for damages caused by their products. When a company implements a refund program in response to a threatened or pending class action, may federal courts rely solely on the voluntary refunds in denying class certification? The short answer is yes.

This Article analyzes Rule 23(b)(3) of the Federal Rules of Civil Procedure and the requirement that a class action be "superior to other available methods for fairly and efficiently adjudicating the controversy." The Article argues that courts must compare the superiority of a class action not only …

The Rules Of Engagement, David D. Butler

David D. Butler

This brief article contains 1,300 words. It is well worth your time to read it in full.

False Certainty: Judicial Forcing Of The Quantification Of Risk, Diana R. H. Winters

Diana R. H. Winters

Risk, which is by definition only the possibility of harm, is speculative and amorphous. To transform risk into something more concrete and measurable, courts reviewing risk determinations by agencies or individuals in certain contexts will insist that the parties quantify this risk. However, forcing such quantification may undercut the benefits of judicial review. This Article looks at the judicial forcing of the quantification of risk in two contexts: first, the review of agency action, and second, the determination of whether probabilistic injury satisfies the injury-in-fact standing requirement. By juxtaposing these two contexts, the Article illuminates the work that judges think …

California Standing Doctrine: The Enigma Explained, Tawnda Elling, Damien Schiff

Tawnda Elling

The doctrine of standing in the federal courts requires that a plaintiff, in order to obtain relief, must show not only that she has a valid cause of action, but also that her injury is constitutionally cognizable, that it is fairly traceable to the alleged wrongful act of the defendant, and that a favorable judicial decision will probably redress his injury. In the last 75 years, standing has arguably become the most important doctrine in federal court practice. Discussion of standing is not, of course, limited to federal decisions. In fact, cases from the California Supreme Court and courts of …

University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal

Zena Denise Crenshaw-Logal

On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …

An Inconvenient Forum: Altering The Doctrine Of Forum Non Conveniens For Human Rights Claims Under The Alien Tort Statute, Lynn Ta

Lynn Ta

This Article proposes a new approach to the doctrine of forum non conveniens. Traditionally, forum non conveniens has been considered a non-merits decision that does not require a prior determination of subject matter jurisdiction. This Article argues that this approach significantly disadvantages foreign plaintiffs who bring human rights claims under the Alien Tort Statute because it quickly and automatically dismisses such cases without considering both the U.S. interest in adjudicating human rights cases, as well as the gravity of human rights violations. Both these considerations should trump the more mechanical analysis conducted under the traditional forum non conveniens model. The …

Social Media Campaigns As An Emerging Alternative To Litigation, Michael Tristan Morales

Tristan Morales

This article analyzes the likely impact of social media on the legal arena. In particular, it seeks to identify the extent to which social media campaigns might emerge as a viable alternative to litigation in cases where an injury occurs. The Internet has given individuals an easily accessible and broadly impactful platform for voicing allegations of indignity and injustice. By exploring the impact of social media campaigns on two areas of law in which litigation has long been deemed invaluable, consumer protection and employment law, this article seeks to demonstrate that the Internet might also soon overhaul the way we …

The Public Speaks: An Empirical Study Of Legal Communication, Christopher R. Trudeau

Christopher R Trudeau

Most attorneys agree that writers need to tailor their writing to a particular audience. This just makes sense. So it is not a stretch to argue that to convey a clear message to a client, attorneys should use plain language. But there is little empirical data supporting the public’s preference for plain language. Rather, most sources largely rely on anecdotal evidence to prove this point. Therefore, in 2011, I conducted a study to help measure many of the following unanswered questions: to what degree does the public prefer plain language over traditional legal language? How do people react when they …

Forfeitures Revisited: Bringing Principle To Practice In Federal Court, David Pimentel

David Pimentel

Dramatically expanded use of federal forfeitures since the 1980s has raised persistent concerns about government overreaching in the seizure of private property. The Supreme Court failed to address the problem in Bennis v. Michigan (1996), upholding the forfeiture of property of an entirely innocent owner, relying on the ancient and unconvincing principle that the property itself is guilty. Congress stepped in to curb law enforcement’s worst abuses of this lucrative practice in 2000, but the Civil Asset Forfeiture Reform Act was a patchwork effort that tweaked the rules without revisiting the unsatisfying policies behind them. Thus a comprehensive, policy-based re-examination …

Defense Counsel, Trial Judges, And Evidence Production Protocols, Darryl K. Brown

Darryl K. Brown

This essay, a contribution to the 2012 Texas Tech Symposium on the Sixth Amendment, argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be understood as a problem of the state’s adversarial adjudication process, for which public officials—notably judges, whose judgments depend …

Secularization By Incorporation: Corporate Identity And The Religious Corporation, Bruce B. Jackson

Bruce B Jackson

First Amendment Religion Clause doctrine applicable to a religious organization’s internal property dispute offers civil courts an option. Provided the controversy does not involve religious doctrine, a civil court may either defer to a religious organization’s governing body, or, resolve the matter itself by applying neutral principles of law. Application of the doctrine requires a civil court to treat religious corporations with a hierarchical form of government differently from those with a congregational form of government. For religious corporations that are hierarchically organized and governed, a normative Religion Clause analysis requires a civil court to defer to the decision of …