Law Commons^™

Restoring The Presumption Of Innocence, Shima Baradaran

Shima Baradaran

The most commonly repeated adage in U.S. criminal justice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption’s diminution are also troubling as the number of defendants held pretrial has steadily increased such that the majority …

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …

Judging Indian Law: What Factors Influence Individual Justice’S Votes On Indian Law In The Modern Era, Grant Christensen

Grant Christensen

Abstract: Scholars of the Supreme Court often use a justice’s political ideology to predict their ultimate vote on Constitutional questions. While this approach may serve scholars well when questions involve hot button civil liberties issues that are the focus of confirmation hearings, ideology is in actuality a poor predictor of judicial behavior in other areas of law. This paper looks at one of the more complex – Federal Indian Law – and uses both descriptive statistics and more advanced quantitative analysis to go beyond the pure ideology and explain why individual Justices vote the way they do. Using the Fisher …

After The Flood: The Legacy Of The "Surge" Of Federal Immigration Appeals, Stacy Caplow

Stacy Caplow

For many years, the big news in United States Courts of Appeal was the skyrocketing immigration caseload. For Courts that traditionally had busy immigration dockets, the effect was tsunamic. One of those Circuits, the Second, instituted a nonargument calendar that, over the past five years, has enabled the Court to regain some control over its swollen docket. While this administrative strategy has rescued the Court from drowning, the flow of cases continues, somewhat abated, but with enduring force. The so-called surge had unanticipated consequences extending far beyond court management changes. As a result of their increased exposure to immigration cases …

Case-By-Case Adjudication And The Path Of The Law, Anthony Niblett

Anthony Niblett

How can a centrist president or governor best influence law through the appointment of judges? Imagine that there are two sitting judges and one of the positions becomes vacant. The other, veteran judge is on the extreme right, from the perspective of the executive, and the executive prefers centrist outcomes. Should the executive appoint a centrist or, instead, appoint a left-wing extremist who might offset the sitting, right-wing judge? Conventional wisdom holds that judges counteract, or balance, one another; that is, a left-wing appointment carries the best hope offsetting the existing, right-wing judge. Following this intuition, a moderate appointment would …

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 …

Rules, Standards, And The Attorney-Client Privilege: When Is The Privilege At-Issue In The Discovery Rule And Other Contexts?, Kenneth J. Duvall

Kenneth J Duvall

Striking the right balance between a robust attorney-client privilege and a judicial system that maximizes access to the best evidence has always been difficult. In recent decades, the privilege battles have in large part been waged over one particular exception to the privilege: the “at-issue” carve-out. Under this exception, the holders of the privilege waive it when they place otherwise privileged communications at issue in the litigation not through outright consent but instead through their conduct. The troubling question has therefore been: what actions suffice to place communications at issue? Privilege defenders consider confidential communications to be at issue only …

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 …

No More Free Easements: Judicial Takings For Private Necessity, John Martinez

John Martinez

In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 130 S.Ct. 2592 (2010), the United States Supreme Court was one vote short of recognizing "judicial takings" as viable federal constitutional claims. If such claims become available, then we must identify with precision those circumstances in which judicial takings claims should apply. The full panoply of remedies--forced condemnation, injunction, and interim damages--must be considered. This article begins the discussion with what perhaps are the easy cases, in which governmental judicial conduct imposes a permanent physical occupation on private land based solely on the private necessity of the benefitted …

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 …

Philadelphia Lawyers: Policing The Law In Pennsylvania, Brian K. Pinaire, Milton Heumann, Christian Scarlett

Brian K. Pinaire

Unlike other professions within the Commonwealth, Pennsylvania attorneys “police” themselves, meaning that ethical infractions and ramifications of criminal convictions are addressed not by the government, but rather by disciplinary entities within the profession. Recent socio-legal and social science research has addressed the various statutory “collateral consequences” that attach to criminal convictions, but we know comparatively little about consequential discipline instituted outside the purview of the state. Based on an examination of 419 disciplinary dispositions from 2005-2009, as well as interviews with elites, this study provides the first-ever examination of the process and legal-political implications of peer-policing of the law in …

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 …

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …

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 …

Unconscious Bias In Legal Interpretation, Anup Malani, Ward Farnsowrth, Dustin Guzior

Anup Malani

What role do policy preferences play when a judge or any other reader decides what a statute or other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith—a claim that the judge or other decision-maker isn’t really earnest in trying to separate preference from judgment. This does not advance the discussion, and …

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 …

Justice Stevens, Religion, And Civil Society, Gregory P. Magarian

Gregory P. Magarian

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his 35 years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he flatly opposed exempting religious believers from laws that interfered with their religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with disdain for religion. In this article, Professor …

The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions -- For The Law And For The Litigants, Scott A. Moss

Scott A Moss

Each of the Supreme Court’s high school student speech cases reflected the social angst of its era. In 1965’s Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam war. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District v. Fraser and Hazelwood School District v. Kuhlmeier allowed censoring of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the 2000s rise of reality television and online self-exposure: …

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. …