Law Commons^™

The Sacrifice Of Unarmed Prisoners To Gladiators: The Post-Aedpa Access-To-The-Courts Demand For A Constitutional Right To Counsel In Federal Habeas Corpus, Emily S. Garcia Uhrig

Emily S. Garcia Uhrig

Abstract

This article argues for a constitutional right to counsel in all initial federal habeas corpus proceedings based on access-to-the-courts doctrine. The doctrine guarantees an indigent inmate a constitutional right to meaningful access to the courts in incarceration-related litigation, including postconviction proceedings. The Supreme Court initially articulated the access right, in relevant part, as merely prohibiting states from actively interfering with an indigent inmate’s efforts at pursuing postconviction relief from a criminal judgment. Though still fairly inscrutable in dimension, in certain circumstances the access right requires states to provide affirmative assistance to inmates to ensure constitutionally adequate access to the …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order to …

Reconsidering Arizonans: Proposition 8, Direct Democracy, And The Supreme Court, Frank M. Dickerson Iii, Reid Bolton

Frank M. Dickerson III

The most interesting issue raised by the Proposition 8 litigation in California is the question of standing for ballot-initiative sponsors in defensive litigation and how courts should deal with these unique public “representatives”. This Article argues that ballot-initiative sponsors such as ProtectMarriage.com meet the relevant Article III standing criteria and should be allowed to appeal a district court’s judgments against the proposition. Standing for ballot-initiative sponsors is consistent with both the Constitutional and the prudential concerns underlying the doctrine of standing and allows the proper party to defend an initiative when the government chooses not to. Ballot initiative sponsors play …

Recent Developments In Intellectual Property Law In Nigeria, Ufuoma Barbara Akpotaire

Ufuoma Barbara Akpotaire

Key Point – This article provides an overview of the developments in the field of Intellectual Property (IP) in Nigeria and highlights key issues in 10 recent judgments on IP Law in Nigeria. The cases are organized thematically according to the type of Intellectual Property Rights (IPRs) protected under the Nigerian legal system such as trademarks, copyrights, patents, and designs. The decision to pen this Article is borne out of a conversation with a colleague in New York, who seemed surprised to learn that I had worked as an IP lawyer in Nigeria. My colleague was aware of the existence …

Chooseyourjudges.Org: Treating Elected Judges As Politicians, Ric Simmons

Ric Simmons

The United States is the only country in the world that elects its judges, and popular support for judicial elections is so strong that we will certainly continue electing our judges for many years to come. However, even after centuries of conducting judicial elections, we have no clear answer to a basic question: what criteria are voters supposed use when they choose between competing judicial candidates? This article proposes a simple but controversial answer to that question: voters ought to evaluate judicial candidates based on the candidates' political ideology, and the only way to truly know the political ideology of …

The Supreme Court, Self-Persuasion, And Ideological Drift, Molly Wilson

Molly J. Walker Wilson

Whether one conceives of judicial attitudes as culturally derived, emotive values, or ideology-based policy positions, the work of behavioral law theorists, political scientists, and legal realists has amply documented the influence of personal beliefs on judicial decision-making. However, there is evidence for a previously unexplored possibility; the possibility that judges may be systematically more vulnerable to ideological extremes than those outside of the judiciary. There is reason to suspect that specific features of a jurist’s job may lead him or her inevitably toward a greater commitment to his or her own worldviews. In particular, the requirement that judges draft opinions …

Opening Pandora’S Box: An Empirical Exploration Of Judicial Settlement, Peter Robinson

Peter R. Robinson

The article is an empirical study of, among other things, what judges do when they are facilitating a settlement and they believe the outcome is substantially different from what they believe would be the usual range of outcomes at trial. The topic is important because many authors have expressed concern about the blurring of the judicial roles of settlement facilitator and decision maker. it documents that judges are largely unconcerned, which raises many policy questions.

Another piece of good news is that this is the fourth in a series of law review articles and is empirically based. A literature review …

Violent Video Games & "Constitutionalized" Negligence, Deana Ann Pollard Sacks

Deana A Pollard

Violent video games create serious risks of harm to children’s brain functioning, health, and safety. Extremely wealthy game producers’ demonstrated disregard for children’s safety raises questions about lower courts’ negligent speech liability rules that effectively bar tort liability for unreasonably dangerous speech, including violent video games. Violent Video Games & “Constitutionalized” Negligence reviews the latest scientific data on the effects of violent video games on children and challenges the prevailing negligent speech liability rules generally, and specifically relative to violent video game producers’ relationship with children. Most courts have adopted the Brandenburg incitement test to prove fault and causation in …

Toward Adequacy: Sense And Statutory Construction In The Judicial Review Provisions Of The Apa, Sarah L. Olson

Sarah L Olson

Each year, hundreds of people, companies, organizations, and associations sue the federal government for injuries they have suffered at the hands of federal agencies. Such suits are often brought under the judicial review provisions of the Administrative Procedure Act (“APA”), which Congress enacted expressly to allow broad access to courts in an age of increasing administrative agency action. By the terms of the APA itself, all final agency action for which there is no other adequate remedy in a court is reviewable under the APA.

But the very language meant to welcome such suits into court also acts as a …

A Positive Political Theory Of Rules And Standards, Tonja Jacobi, Frank Cross, Emerson Tiller

Tonja Jacobi

How judges choose between rules and standards fundamentally shapes case outcomes and the development of broader doctrine. While the literature has much to say about the relative merits of rules versus standards, it has largely failed to produce a comprehensive explanation of how judges make that choice. This Article takes a novel approach, using Positive Political Theory to examine the incentives of higher court judges and the information available to them about how lower court judges will be likely to use those doctrinal tools. By taking seriously both how substantive and ideological judicial preferences shape the choice over doctrinal form …

Judges Who Settle, Hillary A. Sale

Hillary A Sale

This Article develops a construct of judges as gatekeepers in corporate and securities litigation, focusing on the last-period, or settlement stage of the cases. Many accounts of corporate scandals have focused on gatekeepers and the roles they played or, in some cases, abdicated. Corporate gatekeepers, like investment bankers, accountants, and lawyers, function as enablers and monitors. They facilitate transactions and enable corporate actors to access the financial and securities markets. Without them the transactions would not happen. In class actions and derivative litigation, judges are the monitors and enablers. They are required to oversee the litigation arising from bad transactions …

Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh

Edward D. Cavanagh

Abstract This article examines the role of litigation culture in establishing standards for the conduct of litigation in the federal courts. It argues that culturally based practices are firmly embedded in the federal civil justice system. The practice culture in a particular district may be the source of local rules or may serve as a gap-filler to provide standards where written rules do not exist or are not cost-effective to draft. Rules at odds with cultural practices face resistance from the bench and bar. Culturally rooted practices are not easily dislodged, and a mere amendment to the Federal Rules is …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Trapped In The Amber: State Common Law, Employee Rights And Federal Enclaves, Chad Deveaux

Chad DeVeaux

The Constitution empowers Congress, with state consent, to establish federal enclaves for legitimate purposes including military bases and national parks. To date, Congress has established 5,000 federal enclaves covering nearly thirty percent of land in the United States. More than a million Americans live and work in such places. When an enclave is created, all state authority over it is terminated and the federal government assumes exclusive jurisdiction. State laws existing at the time of cession continue in effect until abrogated by Congress. But post-acquisition changes in state law, including common law rules, are not part of the body of …

Jury Selection And The Coase Theorem, Dru Stevenson

Dru Stevenson

The thesis of this article is that jury selection is unique among the components of the litigation process, in that zero negotiation or bargaining occurs between the parties over the substantive or procedural events that unfold – despite the absence of any prohibitions on such negotiation. This lack of bargaining is particularly striking given that the litigants are in the same room, where they could discuss things face to face. Negotiation, whether over the ultimate outcome or over specific issues within the case, pervades every other segment of litigation, from the pre-filing phase until after the verdict. It is therefore …

Judging, Expertise, And The Rule Of Law, Chad M. Oldfather

Chad M Oldfather

Though we live in an era of hyper-specialization, the judiciary has for the most part remained the domain of generalists. Specialized courts exist, however, and commentators regularly claim that further judicial specialization is desirable or inevitable. Yet recent years have witnessed the beginning of a backlash against the increasing division of intellectual labor, such that it is appropriate to question the merits of judicial specialization. This article engages the existing literature on judicial specialization in two ways. First, by demonstrating that the question of judicial specialization is considerably more complex and contingent than is typically depicted. We must, for example, …

Can The Rule Of Law Survive Judicial Politics?, Charles G. Geyh

Charles G. Geyh

According to a Renaissance myth, the ermine would rather die than soil its pristine, white coat. English and later American judges would adopt the ermine as a symbol of the judiciary’s purity and commitment to the rule of law. This “ermine myth” remains central to the legal establishment’s conception of the judicial role: independent judges, the argument goes, disregard extralegal influences and strictly follow the law. In contrast, political scientists had long theorized that judicial independence liberates judges to disregard the law and substitute their extralegal policy preferences. A recent spate of interdisciplinary research, however, has led to an emerging …

Life, Death & The God Complex: The Effectiveness Of Incorporating Religion-Based Arguments Into The Pro-Choice Perspective On Abortion, Stacy A. Scaldo

Stacy A Scaldo

While speaking on the issue of healthcare in August of 2009, President Barrack Obama told a meeting of Jewish rabbis, “We are God’s partners in matters of life and death.” While the President’s message was expressly targeting choices in healthcare and end of life decisions, the statement is representative of a shift in the public rhetoric reflective of all matters concerning life - including abortion. This, indeed, would be a remarkable change in both express policy and argument identification – one that appears to be a new weapon in the arsenal of those who identify themselves with the pro-choice movement. …

Jurisdiction, Abstention, And Finality: Articulating A Unique Role For The Rooker-Feldman Doctrine, Dustin Buehler

Dustin Buehler

Federal courts frequently confuse the Rooker-Feldman doctrine with Younger abstention and preclusion law, often using these doctrines interchangeably to dismiss actions that would interfere with state court proceedings. For years, scholars argued that the Supreme Court should alleviate this confusion by abolishing the Rooker-Feldman doctrine altogether. The Court recently refused to so, however. In Exxon Mobil Corp. v. Saudi Basic Industries Corp. and Lance v. Dennis, the Court reaffirmed Rooker-Feldman’s vitality, and held that the doctrine plays a unique role, completely separate from abstention and preclusion rules. And yet these decisions leave a key question unanswered: exactly how does Rooker-Feldman …

The Disappearing Opt-Out Right In Punitive Damages Class Actions, Richard Frankel

Richard Frankel

The tension between protecting defendants from multiple punitive damages awards for a single act and ensuring that wronged plaintiffs can recover punitive damages is one of the most pressing problems in punitive damages law today. Numerous commentators have proposed non-opt-out class actions for punitive damages as the best solution to the “multiple punishment” problem because they subject defendants to a single collective punitive damages award that can be distributed equitably across all injured plaintiffs. This Article challenges that position. It argues that mandatory classes improperly deprive class plaintiffs of their right to opt out and pursue their own individual claims …

Bad Romance: The Uncertain Promise Of Modeling Legal Standards Of Proof With The Inference To The Best Explanation, Michael J. Stephan

Michael J. Stephan

Abductive reasoning, commonly described as ‘inference to the best explanation,” has long found favor among many philosophers as a method of choosing between competing candidate explanations. Inference to the best explanation (IBE) dictates that when confronted with a set of different explanations for a given phenomenon, we should examine the explanatory virtues of each of the respective explanations—e.g., consilience, simplicity, coherence, lack of ad hocery, testability, et cetera—and defeasibly accept as true the candidate explanation which does the best job of explaining the phenomenon. Such an inference pattern is believed to be prolific in the reasoning conducted during daily life—but …

Judges Who Settle, Hillary A. Sale

Hillary A Sale

This Article develops a construct of judges as gatekeepers in corporate and securities litigation, focusing on the last-period, or settlement stage of the cases. Many accounts of corporate scandals have focused on gatekeepers and the roles they played or, in some cases, abdicated. Corporate gatekeepers, like investment bankers, accountants, and lawyers, function as enablers and monitors. They facilitate transactions and enable corporate actors to access the financial and securities markets. Without them the transactions would not happen. In class actions and derivative litigation, judges are the monitors and enablers. They are required to oversee the litigation arising from bad transactions …

Stoney Road Out Of Eden: The Struggle To Recover Insurance For Armenian Genocide Deaths And Its Implications For The Future Of State Authority, Contract Rights, And Human Rights, Jeffrey W. Stempel

Jeffrey W Stempel

The Armenian Genocide during the waning days of the Ottoman Empire continues to represent one of history’s underappreciated atrocities. Comparatively few people even know about the 1.5 million deaths or the government-sponsored extermination attempt that provided Hitler with a blueprint for the Nazi Holocaust. Unlike the Holocaust, however, there was never any accounting demanded of those responsible for the Armenian Genocide. In the aftermath of both tragedies, insurers seized upon the resulting disarray and victimization to deny life insurance benefits owed as a result of the killings. American-based litigation to vindicate rights under the Armenian polices faced substantial legal and …

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Randy Beck

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

The Principle Of Complementarity In The Origins Of Federal Civil Rights Enforcement, 1866-1871, Matthew A. Smith

Matthew A Smith

When the Rome Statute of the International Criminal Court was adopted in 1998, it was praised for its potential to ensure the punishment of international crimes without subjecting states to overzealous international prosecution. The Statute’s careful balance of individual security and sovereign autonomy—achieved by employing a legal concept known as complementarity—is credited as one of its core innovations. However, complementarity’s historical roots run deeper than commentators on the Rome Statute have recognized: complementarity also played a central role over a hundred years earlier in the United States Congress’s efforts to enforce the civil rights of United States citizens. This article …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Agencies Interpreting Courts Interpreting Statutes: The Deference Conundrum Of A Divided Supreme Court, Robin K. Craig

Robin K. Craig

Plurality decisions from the U.S. Supreme Court demand interpretation, especially because they tend to occur when the Court faces important but divisive legal issues. Most courts, agencies, and scholars have assumed that federal agencies are in no better position than the lower federal courts when confronted with a potentially precedential Supreme Court plurality decision—that is, that the agency must construe the Justices’ various opinions in search of a controlling rationale. In so doing, however, the agency eschews any claim to Chevron deference, because it is no longer implementing a statute pursuant to congressionally delegated authority. Instead, it is merely an …

“Buy Stock In The Gpo”? An Empirical Analysis Of How United States V. Mead Corp. Increased The Use Of Informal Rulemaking By Federal Agencies, Ryan T. Holt

Ryan T. Holt

In the dynamic field of administrative law, no case has received more attention over the past ten years than United States v. Mead Corp., in which the Supreme Court created a threshold requirement for federal-agency action to receive Chevron deference. But despite this focus from courts and commentators, one of that case’s major implications has thus far escaped the spotlight of analysis: To what extent has Mead affected agencies’ choice of policymaking device? In an excoriating dissent, Justice Scalia forewarned that Mead would precipitate an undesirable increase in informal (so-called “notice-and-comment”) rulemaking. However, whether Mead has increased informal rulemaking over …