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Articles 1 - 30 of 53
Full-Text Articles in Law
Protecting Human Rights During Emergencies: Delegation, Derogation, And Deference, Evan J. Criddle
Protecting Human Rights During Emergencies: Delegation, Derogation, And Deference, Evan J. Criddle
Faculty Publications
Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximize human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals …
Rethinking Transparency In U.S. Elections, Rebecca Green
Rethinking Transparency In U.S. Elections, Rebecca Green
Faculty Publications
Bush v. Gore catapulted this country into a crisis of confidence in the management of our elections. Despite reforms since 2000, public confidence in election administration continues to wane. Are dead people on the rolls? Are noncitizens voting? Are provisional ballots wrongly rejected? State election transparency statutes meant to reassure the public that elections are producing legitimate results are often conflicting, vague, and even nonexistent. Exacerbating the problem, the last two decades have witnessed huge changes that offset the transparency balance. Dramatic changes in how Americans vote, how elections are administered, and who scrutinizes the election process call for a …
Symposium On The Challenges Of Electronic Evidence, Daniel J. Capra, Sidney A. Fitzwater, Peter Pitegoff, Jeffrey S. Sutton, Paul Grimm, John Haried, Richard W. Vorder Bruegge, Jeffrey Bellin, Paul Scechtman, Deirdre M. Smith, Shira A. Scheindlin, David Shonka, Daniel Gelb, Andrew Goldsmith, George Paul, Paul Lippe
Symposium On The Challenges Of Electronic Evidence, Daniel J. Capra, Sidney A. Fitzwater, Peter Pitegoff, Jeffrey S. Sutton, Paul Grimm, John Haried, Richard W. Vorder Bruegge, Jeffrey Bellin, Paul Scechtman, Deirdre M. Smith, Shira A. Scheindlin, David Shonka, Daniel Gelb, Andrew Goldsmith, George Paul, Paul Lippe
Faculty Publications
No abstract provided.
The Case For Ehearsay, Jeffrey Bellin
Prediction Theories Of Law And The Internal Point Of View, Michael S. Green
Prediction Theories Of Law And The Internal Point Of View, Michael S. Green
Faculty Publications
No abstract provided.
Rights Speech, Timothy Zick
Rights Speech, Timothy Zick
Faculty Publications
Freedom of expression has a complex and dynamic relationship with a number of other constitutional rights, including abortion, the right to bear arms, equal protection, the franchise, and religious liberty. This Article discusses one aspect of that relationship. It critically analyzes the regulation of "rights speech" - communications about or concerning the recognition, scope, or exercise of constitutional rights. As illustrative examples, the Article focuses on regulation of speech about abortion and the Second Amendment right to bear arms. Governments frequently manage, structure, and limit how individuals discuss constitutional rights. For example, laws and regulations compel physicians to convey information …
Delaware Law As Lingua Franca: Theory And Evidence, Brian Broughman, Jesse M. Fried, Darian Ibrahim
Delaware Law As Lingua Franca: Theory And Evidence, Brian Broughman, Jesse M. Fried, Darian Ibrahim
Faculty Publications
Why would a firm incorporate in Delaware rather than in its home state? Prior explanations have focused on the inherent features of Delaware corporate law and on the positive network externalities created by so many other firms domiciling in Delaware. We offer an additional explanation: a firm may choose Delaware simply because its law is nationally known and thus can serve as a lingua franca for in-state and out-of-state investors. Analyzing the incorporation decisions of 1,850 venture-capitalist-backed start-ups, we find evidence consistent with this lingua franca explanation. Indeed, the lingua franca effect appears to be more important than other factors …
The Trouble With Amicus Facts, Allison Orr Larsen
The Trouble With Amicus Facts, Allison Orr Larsen
Faculty Publications
The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the …
Vertical Power, Michael S. Green
Vertical Power, Michael S. Green
Faculty Publications
Many legal scholars and federal judges - including Justices Ginsburg and Scalia - have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), I argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state's assertion of vertical power would improperly discriminate against federal courts. If state …
The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin
The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin
Faculty Publications
New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …
Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz
Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz
Faculty Publications
This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …
Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney
Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney
Faculty Publications
No abstract provided.
An Ntsb For Capital Punishment, Adam M. Gershowitz
An Ntsb For Capital Punishment, Adam M. Gershowitz
Faculty Publications
When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When afatal airplane crash occurs, however, we turn instead to the National Transportation Safety Board (NTSB). The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and …
Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker
Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker
Faculty Publications
No abstract provided.
Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons
Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons
Faculty Publications
For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a "search" has occurred within the meaning of the Fourth Amendment. The Supreme Court's recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine's importance when determining whether there has been a "search" triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine's bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.
This Article argues that while …
Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin
Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin
Faculty Publications
This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case. The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective assistance of …
Juries, Social Norms, And Civil Justice, Jason M. Solomon
Juries, Social Norms, And Civil Justice, Jason M. Solomon
Faculty Publications
At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.
This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article …
The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz
The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz
Faculty Publications
No abstract provided.
Following Lower-Court Precedent, Aaron-Andrew P. Bruhl
Following Lower-Court Precedent, Aaron-Andrew P. Bruhl
Faculty Publications
This Article examines the role of lower-court precedent in the US Supreme Court’s decisions. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, this Article analyzes a variety of potential reasons …
Health Equity For All: Sexual And Reproductive Health Needs And Access To Health Services For Adolescents 10–17 Engaged In Selling Sex In Asia Pacific, Brendan M. Conner, Ayesha Mago, Sarah Middleton-Lee
Health Equity For All: Sexual And Reproductive Health Needs And Access To Health Services For Adolescents 10–17 Engaged In Selling Sex In Asia Pacific, Brendan M. Conner, Ayesha Mago, Sarah Middleton-Lee
Faculty Publications
No abstract provided.
Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson
Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson
Faculty Publications
This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature—attributes that have the …
Liberty Without Capacity: Why States Should Ban Adolescent Driving, Vivian E. Hamilton
Liberty Without Capacity: Why States Should Ban Adolescent Driving, Vivian E. Hamilton
Faculty Publications
No abstract provided.
Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski
Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski
Faculty Publications
Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress’s expectations regarding statutory interpretation, we show that existing knowledge of Congress’s expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover, Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of statutory interpretation …
Hobby Lobby, Corporate Law, And The Theory Of The Firm: Why For-Profit Corporations Are Rfra Persons, Alan J. Meese, Nathan B. Oman
Hobby Lobby, Corporate Law, And The Theory Of The Firm: Why For-Profit Corporations Are Rfra Persons, Alan J. Meese, Nathan B. Oman
Faculty Publications
No abstract provided.
Standing Outside Article Iii, Tara Leigh Grove
Standing Outside Article Iii, Tara Leigh Grove
Faculty Publications
The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …
Mutual Marginalization: Individuals With Disabilities And Workers With Caregiving Responsibilities, Nicole B. Porter
Mutual Marginalization: Individuals With Disabilities And Workers With Caregiving Responsibilities, Nicole B. Porter
Faculty Publications
This Article explores the marginalization of two groups of employees--individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. However, while these groups are not perfectly aligned, they do have much in common in the workplace. First, these employees are unable to consistently meet their employers' expectations of an "ideal worker." Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal-worker norm. The need for accommodation causes both groups of employees to suffer from "special-treatment stigma," which manifests itself in …
Antitrust, Regulatory Harm, And Economic Liberty, Alan J. Meese
Antitrust, Regulatory Harm, And Economic Liberty, Alan J. Meese
Faculty Publications
No abstract provided.
Mental Illness And Danger To Self, Cynthia V. Ward
Mental Illness And Danger To Self, Cynthia V. Ward
Faculty Publications
No abstract provided.
Why Arizona V. Gant Is The Wrong Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz
Why Arizona V. Gant Is The Wrong Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz
Faculty Publications
No abstract provided.
Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec
Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec
Faculty Publications
Modern international trade law seeks to increase global welfare by lowering barriers to trade and encouraging international competition. This “free trade” approach, while originally applied to reduce tariffs on trade, has been extended to challenge non-tariff barriers, with modern trade agreements targeting telecommunication regulations, industrial and product safety standards, and intellectual property rules. Patent law, however, remains inconsistent with free-trade principles by allowing patent holders to subdivide the world market along national borders and to forbid trade in patented goods from one nation to another. This Article demonstrates that the doctrines thwarting free trade in patented goods are protectionist remnants …