Law Commons^™

Absolute Immunity: A License To Rape Justice At Will, Prentice L. White

Prentice L White

ABSOLUTE IMMUNITY: A LICENSE TO RAPE JUSTICE AT WILL BY PRENTICE L. WHITE We are all acquainted with the phrase the sanctity of marriage. We understand that the vows made by a couple at the wedding ceremony is sacrosanct, and if those vows are not taken seriously, or abused in any way, then the offending spouse will be penalized and evicted from the marital relationship. Likewise, justice should be handled in the same manner and with the same intensity. America prides itself on having the best legal system in the world. It broadcasts to all the surrounding nations that its …

Assessing The Applicability Of The Business Judgment Rule And The “Defensive” Business Judgment Rule In The Chinese Judiciary: A Perspective On Takeover Dispute Adjudication, Xiao-Chuan Charlie Weng

Xiao-chuan Charlie Weng

With the surge of takeovers in China, many issues regarding takeover adjudication and legislation have increasingly received academic attention. The issues of the independence and professionalization of the judiciary and the scarcity of legislation on duty of care are the major predicaments facing corporate China. Massive legislative and judicial reform of takeover adjudication is not viable in the near future. However, U.S. common law standards of review, including the business judgment rule and serial rules against hostile takeover, with diacritical the business judgment rule stamp, may hold potential for reform within the current economic environment. The article investigates the problems …

Escaping Legal Limbo: Can Illinois Residents Who Entered Into A Legally Recognized Same-Sex Marriage Or Civil Union In Another State Dissolve Their Marriage In Illinois?, Michelle R. Green, Allen Wall, Jacob H. Karaca, Melissa Sereda

Michelle R. Green

Legal limbo: when a same-sex couple in a valid, legally performed marriage performed in a jurisdiction that recognizes such marriages wants to dissolve their marriage, but now lives in a jurisdiction that refuses to recognize their marriage as valid. This article explores the options available to such couples in Illinois and provides a practical roadmap for practitioners that we think provides the best chance of success for their clients seeking to dissolve a same-sex union.

While Illinois courts have not yet determined whether such a couple may lawfully dissolve their marriage in Illinois, many lessons can be gleaned from other …

Does The Readability Of Your Brief Affect Your Chance Of Winning An Appeal?--An Analysis Of Readability In Appellate Briefs And Its Correlation With Success On Appeal, Lance N. Long, William F. Christensen

Lance N. Long

The study described in this article suggests that the length of sentences and words, which is “readability” for our purposes, probably does not make much difference in appellate brief writing. First, we found that most briefs are written at about the same level of readability; there simply is not much difference in how lawyers write appellate briefs when it comes to the length of sentences and words. Furthermore, the readability of most appellate briefs is well within the reading ability of the highly educated audience of appellate judges and justices. Second, the relatively small differences in readability are not related …

Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp?, David B. Alden, Matthew P. Silversten

David B. Alden

Ohio’s attorney-client privilege statute, Ohio Rev. Code § 2317.02(A), has been interpreted to provide for a broad waiver of the attorney-client privilege whenever the client testifies voluntarily, including when the client’s testimony does not disclose the substance of the otherwise privileged communications. Finding a privilege waiver under these circumstances is virtually unique to Ohio. This article (1) traces the origins of this rule back to Ohio’s first code of civil procedure, which was enacted in 1853, (2) identifies the long-forgotten reasons that prompted its adoption; (3) analyzes decisions that have applied it from the mid-nineteenth century through today; (4) assesses …

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions by government officials without …

Ending Erie's Third Phase: Why The Supreme Court Should Stop Freelancing And Go Back To Drawing Lines Between Substance And Procedure, Jennifer S. Hendricks

Jennifer S. Hendricks

John Hart Ely famously observed, “We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure,” but for most of Erie’s history, the Supreme Court has answered the question “Does this state law govern in federal court?” with a “yes” or a “no.” Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed and Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for themselves the prerogative to fashion law that purportedly accommodates …

The Pinkerton Problem, Bruce A. Antkowiak

Bruce A Antkowiak

Pinkerton is a longstanding principle of criminal law that holds a conspirator liable for the substantive crimes of his confederates as long as they were committed during the course of and in furtherance of the conspiracy, and as long as they were objectively and reasonably foreseeable to a defendant. This leads to liability being imposed on individuals who did not personally have the mens rea required to commit the crime for which they are sentenced. The article argues that the use of such conspirator liability rules in many jurisdictions (federal and state) violates both due process and separation of powers …

An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference With Former Employee Non-Disclosure Agreements And The Threat Of Disqualification, Maura I. Strassberg

Maura I Strassberg

ABSTRACT The Model Rule 4.4 prohibition on the use of methods of obtaining evidence that violate the rights of third parties can be read to prohibit the informal questioning of a former employee with a non-disclosure agreement to advance a proposed or pending lawsuit, as this may constitute the tort of intentional interference with contract. The use of non-disclosure agreements is proliferating and, although actual tort liability in this context has hardly ever been litigated, it is easy to strategically use this tort to allege an ethical violation that can be the basis of a disqualification motion. The threat of …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

The Extent To Which "Yellowstonre Injunctions" Apply In Favor Of Residential Tenants: Who Will See Red, Who May Earn Green, And Who May Feel Blue?, Hon. Mark Dillon

Hon. Mark C. Dillon

Difficulties in the residential and commercial real estate markets have caused an influx of cases in the New York State courts by which banks seek the foreclosure of delinquent mortgages and landlords seek the eviction of tenants that are in default of rent payment obligations.

New York State has long recognized "Yellowstone injunctions" in the context of commercial leases, where tenants preemptively obtain court orders enjoining their landlords from terminating their breached leases. The concept is named after its case of origin, First Nat. Stores, Inc. v. Yellowstone Shopping Center, Inc., which was decided by the state's Court of Appeals …

Plausibly Pleading Employment Discrimination, Charles A. Sullivan

Charles A. Sullivan

The Supreme Court’s unanimous 2002 decision in Swierkiewicz v. Sorema N.A., which took a very permissive approach to pleading discrimination claims, may or may not remain good law after Ashcroft v. Iqbal. As is well known, Iqbal took a restrictive approach to pleading generally under the Federal Rules, and its application to employment discrimination cases could pose serious problems for plaintiffs attempting to get into federal court. Further, there is certainly a tension between Swierkiewicz and Iqbal. This is in part because the former is a strong reaffirmation of notice pleading as it has traditionally been understood while the latter …

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions by government officials without …

The Extent To Which "Yellowstone Injunctions" Apply In Favor Of Residential Tenants: Who Will See Red, Who May Earn Green, And Who May Feel Blue?, Hon. Mark Dillon

Hon. Mark C. Dillon

Difficulties in the residential and commercial real estate markets have caused an influx of cases in the New York State courts by which banks seek the foreclosure of delinquent mortgages and landlords seek the eviction of tenants that are in default of rent payment obligations.

New York State has long recognized "Yellowstone injunctions" in the context of commercial leases, where tenants preemptively obtain court orders enjoining their landlords from terminating their breached leases. The concept is named after its case of origin, First Nat. Stores, Inc. v. Yellowstone Shopping Center, Inc., which was decided by the state's Court of Appeals …

Saying “I’M Sorry” Is Not So Simple: Embracing The Complexity Of The Apology With A New Evidentiary Rule, Amy Poyer

Amy Poyer

Apologies are everywhere. In day-to-day life, when a person apologizes, they must deal with a myriad of consequences for that apology. These may include vulnerability to the victim, embarrassment, a bruised ago, or even rejection of the apology by the victim. However, when the wrong one apologizes for turns into a lawsuit, the one apologizing has an additional penalty. Piled on to the emotional consequences that accompany any apology, a potential defendant must also worry about his apology’s use against him in court to prove that he is liable. Recently, a debate has developed over whether or not the law …

Exceptional Circumstances: Texas Mandamus Moves Into A Bleak House, Timothy D. Martin

Timothy D Martin

No abstract provided.

Instrumentalizing Jurors: An Argument Against The Fourth Amendment Exclusionary Rule, Todd E. Pettys

Todd E. Pettys

In this symposium contribution, I argue that (1) courts infringe on jurors' deliberative autonomy in a morally problematic way whenever they refuse to admit evidence that is both relevant and reasonably available; (2) this infringement is especially problematic in the Fourth Amendment setting; and (3) although there are several ways in which these moral problems could be at least partially mitigated, the best approach might be to abandon the Fourth Amendment exclusionary rule entirely.

Measuring Business Damages In Fraudulent Inducement Cases, George P. Roach

George P Roach

Measuring Business Damages In Fraudulent Inducement Cases Abstract A cause of action for fraudulent inducement provides for expectancy damages and punitive damages, as well as legal fees and mental anguish in some statutory claims, prompting the Texas Supreme Court to express concern that fraudulent inducement can overwhelm other claims such as breach of contract. Litigation relating to the measure of damages for fraudulent inducement has resulted in a substantial number of cases in which juries, trial courts and courts of appeal are over-ruled or reversed. For example, in the last 30 years, more than two-thirds of the Texas Supreme Court’s …

The Constitution Guarantees Doctor-Patient Confidentiality In Criminal Cases, David E. Clark

David E Clark

Admitting medical records against a patient in a criminal case violates the fifth amendment because a patient is compelled to tell her doctor inculpatory information. Issuing a search warrant for confidential doctor-patient records violates the right to privacy in the fourth amendment. Warden v Hayden (1967) left open an important exception allowing a constitutional doctor-patient privilege in criminal cases.

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisionmaking, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …