Law Commons^™

Bankruptcy Voting And The Designation Power, Christopher W. Frost

Law Faculty Scholarly Articles

Chapter 11 of the Bankruptcy Code is the only form of bankruptcy that requires winning the consent of the creditor body. Creditors are given the right to vote based on an underlying assumption that they will cast their votes to maximize recovery on their claims. When creditors collectively vote to further these distributional goals, then the estate in turn should realize the maximum value for its assets. "Value maximization" is one of the fundamental goals of chapter 11, and voting in bankruptcy is an important way of achieving that goal.

The problem with these assumptions is that creditors sometimes vote …

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …

Much Ado About Nothing?: What The Numbers Tell Us About How State Courts Apply The Unconscionability Doctrine, Susan D. Landrum

Susan Landrum

No abstract provided.

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

Toward Adequacy, Sarah L. Brinton

Sarah L Brinton

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 …

Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs’ Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss

Scott A Moss

For a major field, employment discrimination suffers surprisingly low-quality plaintiff’s lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for won/loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses. These findings are puzzling; in a major legal service market, how …

Education For Judicial Aspirants, Keith R. Fisher

Journal of the National Association of Administrative Law Judiciary

Introductory judicial education (IJE) is an avenue for improving both appointive and elective systems of judicial selection. The impetus for considering this topic can be traced back to lingering unease with judicial selection and the ongoing (though now somewhat stagnant) debate over merit selection. Moreover, changes in the nature of law practice and the judicial role over the past several decades have rendered the gap between those two activities increasingly large. Moreover, surveys of minority communities have consistently demonstrated a far lower degree of confidence in the impartiality and fairness of our nation’s judges. IJE is an effort to maximize …

Discouraging Election Contests, Joshua A. Douglas

Law Faculty Scholarly Articles

This essay offers a few proposals for discouraging losing candidates from contesting the certified result of an election. The ultimate goal in any election, of course, is to ensure that a state declares as the winner the person who actually received the most votes. But when an election is close, a candidate on the losing side might see an incentive to continue the fight in the courts on the off-chance that it would change the outcome. The candidate could challenge, for example, certain provisional or absentee ballot—even if the likelihood that the candidate will win is slim (but still theoretically …

A Home With Dignity: Domestic Violence And Property Rights, Margaret Johnson

Margaret E Johnson

This Article argues that the legal system should do more to address intimate partner violence and each party’s need for a home for several reasons. First, domestic violence is a leading cause of homelessness and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides that continuing to share a home with the person who abused her receives little or no system support, despite the evidence that this decision could most effectively reduce the violence. The legal system’s current failings result from its …

In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis

John F. Preis

Barren County, Kentucky - Court Records (Sc 884), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid and scan (Click on "Additional Files" below) for Manuscripts Small Collection 884. Circuit Court of Barren County, Kentucky, Memoranda Book, 5 June 1819-December 1821.

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …

Barren County, Kentucky - Court Records (Sc 876), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid and scan (Click on "Additional Files" below) for Manuscripts Small Collection 876. Barren County, Kentucky, Quarter Sessions Order Book, 1799-1802.

Report To The Connecticut Judicial Branch Access To Justice Commission, Melanie B. Abbott, Leslie C. Levin, Stephen Wizner

Leslie C. Levin

No abstract provided.

Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

Costs Of Codification, Dru Stevenson

Dru Stevenson

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs …

Institutionalization Of Alternative Dispute Resolution By The State Of California , Bruce Monroe

Pepperdine Law Review

No abstract provided.

Helm, John Blakey, 1899-1979 (Sc 572), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid and scan (Click on "additional files" below) for Manuscripts Small Collection 572. Typescript of a speech, [April, 1949], entitled “Memo on Second Appellate District Judges” by John Blakey Helm, which contains a history of the district and biographical information about the judges who had served that district until 1949.

Constructing Courts: Architecture, The Ideology Of Judging, And The Public Sphere, Allison Anna Tait

Law Faculty Publications

In several countries, governments have embarked on major building expansion programs for their judiciaries. The new buildings posit the courtroom as their center and the judge as that room’s pivot. These contemporary projects follow the didactic path laid out in Medieval and Renaissance town halls, which repeatedly deployed symbolism in efforts to shape norms. Dramatic depictions then reminded judges to be loyal subjects of the state. In contrast, modern buildings narrate not only the independence of judges but also the dominion of judges, insulated from the state. The significant allocation of public funds reflects the prestige accorded to courts by …

Speak Now Or Hold Your Peace: Prearbitration Express Waivers Of Evident-Partiality Challenges, Edward C. Dawson

American University Law Review

No abstract provided.

Abstention, Separation Of Powers, And Recasting The Meaning Of Judicial Restraint, William P. Marshall

Faculty Publications

No abstract provided.

Post-Crisis Reconsideration Of Federal Court Reform, David R. Cleveland

Law Faculty Publications

No abstract provided.

Crashing The Misdemeanor System, Jenny M. Roberts

Articles in Law Reviews & Other Academic Journals

With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis. Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court. This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” …

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

Articles in Law Reviews & Other Academic Journals

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

Eyes In The Sky: Constitutional And Regulatory Approaches To Domestic Drone Deployment, Hillary B. Farber

Faculty Publications

This article begins with a current look at the deployment of drones domestically, both in terms of their use and the procedure for attaining approval for flight. Part II examines the capabilities of drones. Part III considers the Supreme Court's current Fourth Amendment jurisprudence and its application to law enforcement's use of drones. Part IV reviews existing and proposed federal and state regulation of drones. Part V offers constitutional and legislative prescriptions for regulating drones.

The Surveillance Society And The Third-Party Privacy Problem, Shaun B. Spencer

South Carolina Law Review

No abstract provided.

E-Jurors:A View From The Bench, Judge Antoinette Plogstedt

Judge Antoinette Plogstedt

E-JURORS: A View From the Bench

Electronic jurors pose new twists to an old problem. With emerging technology in mobile devices, social media, and internet research, juror misconduct exists in new shapes and forms. Many jurisdictions have made attempts to curb electronic misconduct by modifying standard jury instruction and confiscating juror cell phones. Some judges have implemented jury instructions which remind jurors to refrain from communicating about the case and conducting on-line research. However, their efforts fall short. In previous literature, practicioners, students and a few scholars have offered suggestions on modifying jury instructions to better inform jurors of prohibited …

Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello

Adam Lamparello

Supreme Court Justice Anthony Kennedy’s decision in United States v. Windsor—invalidating the Defense of Marriage Act—made the same mistake as his decision in Lawrence v. Texas: it relied upon abstract notions of ‘liberty’ rather than the text-based guarantee of equality. Same-sex couples deserve more. They are entitled to equal treatment under the United States Constitution. Bans on same-sex marriage cannot be supported by a rational state interest, and instead constitute impermissible discrimination under the Fourteenth Amendment’s Equal Protection Clause. By issuing a doctrinally muddled decision that included discussions of federalism, liberty, due process, and equal protection, Justice Kennedy missed an …

Partially Concurrent Sentences, Statutory Interpretation, And Legislative Intent: Amicus Brief Filed In State V. Bryant Wilson (Indiana Supreme Court), Adam Lamparello, Charles Maclean

Adam Lamparello

Indiana Code § 35-50-1-2 states that terms of imprisonment “shall be served concurrently or consecutively.” The Code’s plain language does not authorize courts to impose partially consecutive, blended, or “split sentences. Partially consecutive sentences would impermissibly read into the Code a third sentencing option, thus contradicting Indiana’s well-settled jurisprudence and undermining the goal of reasonable uniformity in sentencing. The decision of the Indiana Court of Appeals should therefore be reversed.

Retention Redux: Iowa 2012, Todd E. Pettys

Todd E. Pettys

In 2010, Iowa voters ousted three members of the Iowa Supreme Court for their participation in that court's ruling that Iowa's statutory ban on same-sex marriage violated the Iowa Constitution. In 2012, however, Iowa voters opted to retain a fourth member of that same court. This article examines the differences between the two elections.