Law Commons^™

Kennedy V. St. Joseph’S Ministries, Inc.: The Fourth Circuit's Troubling Interpretation Of Interlocutory Appellate Procedure In Federal Courts, William Ernest Denham Iv

William Ernest Denham IV

In Kennedy v. St. Joseph’s Ministries, Inc., the Fourth Circuit held that a federal appellate court may properly permit appeals of certified, interlocutory dismissal orders under 28 U.S.C. § 1292(b) (“§1292(b)”)—even on matters of first impression—without the district court first addressing more routine grounds for dismissal. In interpreting this exception to the final-judgment rule, the court failed to heed “the cardinal principal” of judicial self-restraint that holds “that if it is not necessary to decide more, it is necessary not to decide more.” Moreover, the court did not address the legal or factual hurdles facing parties who seek or oppose …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

What If The Wolf Wasn’T Really The Big Bad In All Those Fairy Tales But Was Just Misunderstood?: Techniques For Maintaining Narrative Rationality While Altering Stock Stories That Are Harmful To Your Client’S Case, Jennifer L. Sheppard

Jennifer L. Sheppard

This article explores the cognitive effects of narrative, including the effects that stock stories have on judges and jurors. It also explores what a lawyer can do when an unfavorable stock story is so pervasive that it will not allow a lawyer to ignore it and a more favorable alternative story does not exist. This article posits that a lawyer can present the client’s story from an alternative perspective that will not evoke the embedded knowledge structures triggered by the unfavorable stock story by manipulating the various threads of narrative rationality (the traits that makes one story more persuasive than …

Civil Protective Orders In Integrated Domestic Violence Court: An Empirical Study, Erika Rickard

Erika Rickard

New York's Integrated Domestic Violence (IDV) Court was created to streamline the judicial process and promote efficiency and victim safety in cases of domestic violence. One would expect this collaboration and concerted effort on improving the justice system for victims of domestic violence would yield faster results than under the traditional system. The data presented here indicate just the opposite: IDV Courts take longer to address motions for civil protective orders, and are not significantly more likely to grant such orders than traditional matrimonial courts. Delays in the civil protective order process suggest that the problem-solving court may not be …

Metadata Discovery After The 2006 Amendments To The Federal Rules Of Civil Procedure: Did The Amendments Work?, Ryan J. Rawlings

Ryan J. Rawlings

In 2003, the Civil Rules Advisory Committee determined electronically stored information discovery required a national, uniformly applied rule, and proposed amendments to the Federal Rules of Civil Procedure explicitly addressing electronically stored information. The electronically stored information amendments to the Federal Rules of Civil Procedure became effective December 01, 2006. It is time to ask, did the amendments achieve the Committee’s goal to create a uniform system of electronic discovery? This Note will review the amendments to Rule 34 and the amendments’ effect on metadata discovery.

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew Taslitz

Andrew E. Taslitz

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus

Patrick A Corbus

Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …

Book Review Of Current Issues In Constitutional Litigation: A Context And Practice Casebook (Carolina Academic Press 2011), Christy Whitfield

Sarah E. Ricks

This is a book review of Current Issues in Constitutional Litigation: A Context & Practice Casebook (Carolina Academic Press 2011). My perspective is unique because I have worked with and watched this casebook evolve – I was assigned an early draft of the casebook as a law school student taking a constitutional litigation course, I worked as a research assistant on a later version of the casebook, and now, several years later, I have viewed the final result of the casebook as a practicing attorney. As a former law clerk and now as an attorney advisor in the beginning years …

Rescission In Texas, A Suspect Remedy, George P. Roach

George P Roach

Rescission in Texas, A Suspect Remedy

Equitable remedies are sometimes overlooked even when favorable ex post changes in values or operating performance warrant their serious consideration. Due to liberalized standards for pleading and electing alternative remedies, rescission in Texas can provide a windfall to the claimant in comparison to standard monetary damages especially after favorable ex post changes. Texas courts are aware of the windfall incentive and can treat the claimant’s plea for rescission as suspect or opportunistic. Litigators on either side of a plea for rescission should consider how their case supports or refutes the suspicion that rescission would …

New Evidence On Appeal, Jeffrey C. Dobbins

Jeffrey C. Dobbins

Appellate review is limited, almost by definition, to consideration of the factual record as established in the trial court. Adhering to this record review principle, appellate courts generally reject out of hand any effort to supplement the appellate record with evidence that was not considered by the court below.

There are, however, exceptions to this traditional principle. Whether presented through amicus briefs, social-science-laden “Brandeis Briefs,” petitions for discretionary review, or other mechanisms for supplementing the record, appellate courts often consider and rely upon new evidence. The literature regarding both the traditional rule and the exceptions is limited, and neither courts …

Economic Evolution, Jurisdictional Revolution, Dustin Buehler

Dustin Buehler

In June 2011, the Supreme Court issued its first personal jurisdiction decision in two decades. In J. McIntyre Machinery, Ltd. v. Nicastro, the Court considered whether the placement of a product in the “stream of commerce” subjects a nonresident manufacturer to personal jurisdiction in states where the product is distributed. The Court issued a fractured opinion with no majority rule, with some justices expressing reluctance to “refashion basic jurisdictional rules” without additional information on “modern-day consequences.” This Article explores the consequences of these rules by providing the first law-and-economics analysis of personal jurisdiction. A descriptive analysis initially demonstrates that jurisdictional …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Scott A Moss

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion …

A Farewell To Harms: Presuming Irreparable Injury In Constitutional Litigation, Anthony Disarro

Anthony DiSarro

Although it is an essential element to obtaining injunctive relief, most federal circuit courts have held that irreparable injury can be presumed in constitutional cases. The Supreme Court has not addressed a presumption of irreparable harm in the constitutional context but it has disapproved of the practice for federal statutory claims. This article argues that the presumption is improper. The history of the injunctive remedy in this country suggests that irreparable injury is an essential element of proof that should be applied in all cases. Indeed, although constitutional rights are of paramount importance in our legal system, the fact that …

Fourth, Fifth And Sixth Amendment Considerations For Admissibility Of Defendants’ Admissions And Confessions, Nancy Haydt

Nancy Haydt

Over the past three terms, the U.S. Supreme Court has rendered opinions that have great impact on the admissibility of a criminal defendant's statement which constitutes an admission under FRE Rule 801(d)(2). This paper addresses recent High Court rulings implicating Fourth Amendment Search and Seizure rights, Fifth Amendment Rights to silence and to counsel, and Sixth Amendment Right to non-interference with trial counsel in the context of admissions and confessions, and discusses the profound effect these rulings have in Criminal Procedure.

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Missouri's Ring Tone: Jury Sentencing Rights In Death Penalty Cases, Jacqueline M. Whipple

Jacqueline M. Whipple

This Law Summary concerns recent developments in criminal law and the death penalty. It includes the national and state-specific legal background behind criminal defendants' rights regarding jury sentencing, and the latest interpretation and application of the U.S. Supreme Court's holding in Ring v. Arizona by the Missouri Supreme Court.

When A Jury Can’T Say No: Presumed Damages For Constitutional Torts, Anthony Disarro

Anthony DiSarro

Although the Supreme Court has twice rejected presumed damages as a remedy for constitutional violations, the Court of Appeals for the Second Circuit has endorsed the remedy at least for certain constitutional torts that result in a “loss of liberty”. Presumed damages for constitutional wrongs is difficult to reconcile with much of our present remedial jurisprudence. The remedy seems contrary to Supreme Court pronouncements that compensatory damages are be the primary means to obtain a monetary remedy for injuries sustained from constitutional violations, and that nominal damages should be awarded when no such damages are proved. Presuming damages represents an …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …

Electronic Discovery: Sanctioning Spoliation With An Adverse Inference Instruction, Robert A. Weninger

Robert A Weninger

This article discusses the spoliation of ESI (electronically stored evidence) in a completely non-technical way. It focuses on the law governing sanctions and not on computer technology.

Professor Richard L. Marcus, the Special Reporter to the Civil Rules Advisory Committee and a primary drafter of the 2006 amendments addressing the discovery of ESI, reviewed my article and was enthusiastic about it. The article is particularly timely because the Advisory Committee is presently considering whether to propose further amendments to address problems created by the disparate positions taken by federal courts on issues concerning sanctions for spoliation.

Courts divide over the …

Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson

Matthew J. Wilson

With globalization and the proliferation of international commercial interaction, U.S. courts commonly encounter issues governed by the laws of other sovereigns. These encounters arise by virtue of private agreements or choice-of-law rules covering contractual relationships, cross-border conduct, tortuous acts, employment matters, intellectual property rights, and various other legal foundations. Because the substantive law applied in an international lawsuit can be outcome-determinative, it is important to accurately ascertain and determine the relevant law. In fact, the proper functioning of private international law in a domestic system is based on the appropriate application of law.

U.S. federal and state courts are presumed …

Removing A Garnishment Proceeding To Federal Court May Be Easier Than You Think, Thomas M. Wood

Thomas M Wood

Garnishment proceedings commencing after even a year of litigation between non-diverse parties in state court actions are still removable in most jurisdictions. Two recent district court opinions from Alabama and Mississippi re-affirm this prevailing view. The threshold question these courts have faced is whether the garnishment action is separate and independent, or merely ancillary, to the main civil action against the alleged insured. Here is a typical example:

A sues B in tort. B may seek insurance coverage from C, and C denies coverage for B but does not elect to file a action for declaratory judgment on the coverage …

Standing At The Crossroads: A Review Of The Novel Issues Of Standing At Play In Perry V. Schwarzenegger, Natasha Mennecke

Natasha Mennecke

This piece examines whether the Proponents of Proposition 8 have standing to appeal the district court's decision invalidating the measure. The paper examines the question of federal Article III standing and whether California Law creates a Liberty Interest sufficient for federal standing.

Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Expressed By Exercising Discretion To Decline Prosecution Of Elite Crime, Mary K. Ramirez

mary k ramirez

Criminal Affirmance: Going Beyond the Deterrence Paradigm to Examine the Social Meaning Expressed by Exercising Discretion to Decline Prosecution of Elite Crime Professor Mary Kreiner Ramirez Article Abstract Recent financial scandals and the relative paucity of criminal prosecutions in response suggest a new reality in the criminal law system: some wrongful actors appear above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Further, this undermines …