Law Commons^™

Choice Of Forum In Securities Litigation: Confronting The Aftermath Of Congressional Reform Of The Securities Act Of 1933, Matthew O'Brien

Matthew O'Brien

The article addresses the wave of federal legislative reform since the mid-1990s aimed at reducing forum shopping by plaintiffs in securities class actions. In particular, the article examines the direct conflict between section 22(a) of the Securities Act of 1933 (“1933 Act”), which prohibits defendants from removing 1933 Act cases from state court to federal court, and the Class Action Fairness Act of 2005 (“CAFA”), which permits removal of high-dollar class actions involving diverse parties.

The article shows how this statutory conflict has produced a recent split between the Seventh and Ninth Circuit Courts of Appeals. In July 2008, the …

Judicial Dissonance: An Analysis Of Judicial Activism, Matthew P. Cohen

Matthew P. Cohen

This comment will examine the debate over judicial activism with a particular focus on commentary spawned from the recent U.S. Supreme Court and California Supreme Court decisions, as well as Bush v. Gore . First, to lay the foundation of the comment, judicial impartiality and independence will be examined. This will bring to light the controlling norms of how judges are to ideally conduct themselves and render opinions in order to maintain public confidence in the judicial system. This comment will then discuss judicial activism and its history within jurisprudence. Transitioning from the history of judicial activism to a more …

The Decline And Fall Of The American Judicial Opinion: Back To The Future From The Roberts Court To Learned Hand, Jeffrey A. Van Detta

Jeffrey A. Van Detta

In September 2008, Adam Liptak of the N.Y. Times wrote in an article “American Exception: U.S. Court Now Guiding Fewer Nations”:

Judges around the world have long looked to the decisions of the United States Supreme Court for guidance, citing and often following them in hundreds of their own rulings since the Second World War.

But now American legal influence is waning. Even as a debate continues in the court over whether its decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American justices.

This is astonishing to many …

Race In The War On Drugs: The Social Consequences Of Presidential Rhetoric, Jeff L. Yates, Andrew Whitford

Jeff L Yates

One of the president’s main leadership tools for influencing the direction of American legal policy is public rhetoric. Numerous studies have examined the president’s use of the “bully pulpit” to lead policy by influencing Congress or public opinion, or by changing the behavior of public agencies. We argue that the president can use rhetoric to change the behavior of public agencies and that this can have important social consequences. We focus on the disproportionate impact of presidential rhetoric on different “target populations” in the context of the War on Drugs. Specifically, we observe that presidential rhetoric had a greater impact …

Class Action Activity In Michigan's State And Federal Courts, Neil J. Marchand

Neil J. Marchand

This paper represents the first choice of forum analysis for class action suits filed in Michigan’s courts. This paper also analyzes the Class Action Fairness Act’s (CAFA) effects at the state court level, examining CAFA’s effects on Michigan’s state and federal courts. For Michigan’s state courts, available empirical data from January 2000 through December 2007 shows a decrease in state court class action filings, with a significant decline in filings starting in 2002 and ending in 2004. For Michigan’s federal courts, empirical data from July 2001 through June 2007 shows a modest decrease in class action filings. Four hypotheses are …

The Myth Of The Written Constitution, Todd E. Pettys

Todd E. Pettys

Many Americans have long subscribed to what this Article calls the myth of the written constitution—the claim that the nation’s Constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that Americans’ attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to …

"Let's Do The Time Warp Again": Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris

Grant H Morris

Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients’ interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the “paternalistic attitude” …

Abolishing The Time Tax On Voting, Elora Mukherjee

Elora Mukherjee

A “time tax” is a government policy or practice that forces one citizen to pay more in time to vote compared with her fellow citizens. While few have noticed the scope of the problem, data indicate that, due primarily to long lines, hundreds of thousands if not millions of voters are routinely unable to vote in national elections as a result of the time tax, and that the problem disproportionately affects minority voters and voters in the South. This Article documents the problem and offers a roadmap for legal and political strategies for solving it. The Article uses as a …

How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger

Linda L. Berger

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing “a sea-change,” family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income. This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …

Friction By Design: The Necessary Contest Of State Judicial Power And Legislative Policymaking, Michael Buenger

Michael Buenger

Courts in the United States have always played an important policymaking role through the exercise of judicial review. Much of our understanding of judicial power and judicial review is based on its exercise in the federal courts. Little attention has been paid to the intersection of judicial power and legislative policymaking at the state level. The tendency to examine judicial power through the lens of the federal bench miscasts the history of the American judiciary and fails to account for the unique role state courts perform as components of quasi-independent states. Even federal judicial review is rooted in state judicial …

Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz

Edsel F Tupaz

This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …

Stare Decisis Is Cognitive Error, Goutam U. Jois

Goutam U Jois

For hundreds of years, the practice of stare decisis -- a court’s adherence to prior decisions in similar cases -- has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society’s “true preferences” with regard to law and policy, may reflect -- and exacerbate -- our cognitive biases. The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others’ decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up …

The Intersection Of Judicial Attitudes And Litigant Selection Theories: Explaining U.S. Supreme Court Decision Making, Jeff L. Yates, Elizabeth Coggins

Jeff L Yates

Two prominent theories of legal decision making provide seemingly contradictory explanations for judicial outcomes. In political science, the Attitudinal Model suggests that judicial outcomes are driven by judges' sincere policy preferences -- judges bring their ideological inclinations to the decision making process and their case outcome choices largely reflect these policy preferences. In contrast, in the law and economics literature, Priest and Klein's well-known Selection Hypothesis posits that court outcomes are largely driven by the litigants' strategic choices in the selection of cases for formal dispute or adjudication -- forward thinking litigants settle cases where potential judicial outcomes are readily …

Preface: Reclaiming Criminal Procedure, Jeffrey L. Fisher

Jeffrey L Fisher

The key to making sense of Crawford is to appreciate that the decision turned the right to confrontation from an evidentiary principle back into a criminal procedure right. As the Court ultimately put it, the Confrontation Clause "commands . . . that reliability be assessed in a particular manner by testing in the crucible of cross-examination. The Clause Thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.

This way of conceptualizing a constitutional right is unique to criminal procedure. Instead …

Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Brannon P. Denning, Glenn H. Reynolds

Brannon P. Denning

This article, written for a symposium held at the University of California-Hastings, surveys lower court decisions applying Heller and the right to keep and bear arms it recognized to federal, state, and local gun laws. While no laws have, to date, been invalidated -- in part because of the strong signals sent by the Heller Court in the opinion -- the Court's recognition that the Second Amendment guarantees an individual right has altered the way in which courts treat gun ownership and, in some cases, has caused non-judicial actors to legislate "in the shadow" of Heller.

The Bridge Connecting Pontius Pilate's Sentencing Of Jesus To The New Jersey Death Penalty Study Commission's Concerns Over Executing The Innocent: When Human Beings With Human Flaws Determine Guilt Or Innocence And Life Or Death, James B. Johnston

James B Johnston

No abstract provided.

The Judicial Ethics Of Criminal Law Adjudication, Keith Swisher

Keith Swisher

Judges in the United States regularly (and often harshly) are disciplined for “bad” criminal law decisions. On a number of levels, it is baffling that this ethical “Rule” — punishing judges for errors of adjudication — has never been the subject of in-depth critical analysis. Thus, this Article is surprisingly the first scholarly work fully deconstructing the Rule (along with attendant considerations in criminal law adjudication) and addressing directly many of the tough questions that have been avoided or mistreated. This Article begins by examining an unexamined, “yet earthshaking” movement—that is, the modern invention of using judicial conduct commissions (“judge …

The Significance Of The Shift Toward As-Applied Challenges In Election Law, Joshua A. Douglas

Joshua A. Douglas

Last Term, the Supreme Court decided two election law cases that had significant implications for the ability of political actors to bring challenges to a state’s election regime. In Washington State Grange v. Washington State Republican Party and Crawford v. Marion County Election Board (the voter ID case), the Court rejected facial challenges to the laws and boldly stated that political actors may only challenge election laws as applied. In essence, this means that voters and others no longer can achieve pre-election, prospective relief, instead having to endure at least one election cycle under a law that might be invalid …

Opinion Writing And Opinion Readers, Meehan Rasch

Meehan Rasch

The authors - a federal appellate judge and his law clerks - bring unique perspectives to bear on the topic of opinion writing and opinion readers. The contents of this Article were inspired in large part by the work done by the authors in editing and preparing the second edition of Judge Aldisert's classic book Opinion Writing, which for many years was distributed to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. A broader audience of professional opinion writers and students of the judicial process now has access to Opinion Writing, …

Legislative Supremacy In The United States?: Rethinking The Enrolled Bill Doctrine, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article revisits the “enrolled bill” doctrine which requires courts to accept the signatures of the Speaker of the House and President of the Senate on the “enrolled bill” as unimpeachable evidence that a bill has been constitutionally enacted. It argues that this time-honored doctrine has far-reaching ramifications that were largely overlooked in existing discussions. In addition to reexamining the soundness of this doctrine’s main rationales, the Article introduces two major novel arguments against the doctrine. First, it argues that the doctrine amounts to an impermissible delegation of both judicial and lawmaking powers to the legislative officers of Congress. Second, …

The Right To Submit Questions To Witnesses (With B. Pfaff & J. Stalmack), Nancy Marder

Nancy S. Marder

No abstract provided.

Jurors Should Have The Right To Submit Questions To Be Answered By Witnesses (With B. Pfaff & J. Stalmack)., Nancy Marder

Nancy S. Marder

No abstract provided.

From "Practical Obscurity" To Web Disclosure: A New Understanding Of Public Information (Symposium), Nancy Marder

Nancy S. Marder

No abstract provided.

The Myth Of The Nullifying Jury, Nancy Marder

Nancy S. Marder

No abstract provided.

Inside The Marble Palace: The Domestication Of The Supreme Court (Reviewing Christopher Buckley, Supreme Courtship), Laura K. Ray

Laura K. Ray

No abstract provided.

Not Taking Frivolity Lightly: Circuit Variance In Determining Frivolous Appeals Under Federal Rule Of Appellate Procedure 38, Meehan Rasch

Meehan Rasch

The availability of appellate review is integral to our contemporary justice system and serves important practical and symbolic functions. Appeal as of right, while not constitutionally guaranteed, is assured by statute for the vast majority of final decisions by trial courts, and with good reason. For one, the principle of open access to the courts is a key value of American law. An accessible public forum for the adversary process ensures that grievances are properly heard and fairly disposed of. Accordingly, justice is best served when parties are able to comprehensively litigate their rights at every level of the judicial …

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …

Measuring The Efficiency Of Brazilian Courts From 2006 To 2008: What Do The Numbers Tell Us?, Luciana L. Yeung, Paulo F. Azevedo

Luciana L Yeung

This paper uses a linear optimization method called Data Envelopment Analysis (DEA) to measure the efficiency of Brazilian State Courts during the years of 2006 to 2008. Our results show that relative efficiency varies substantially across the states. There is a group of courts that consistently top performs in the sample. On the other hand, there is a group of consistent poor performers, as well a group of average performers. Yet, the biggest problem seems to be with a group of State Courts with very unstable results, which might indicate serious problems in data collection and/or measurement. DEA also shows …

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …