Law Commons^™

Empirical Study Of The Role Of The Chinese Guiding Case System In Chinese Law, Dong Yan, Jeffrey E. Thomas

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No abstract provided.

Political Appointments And Outcomes In Federal District Courts, Ryan Hübert, Ryan W. Copus

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Using an original data set of around 70,000 civil rights cases heard by nearly 200 judges, we study the effect of presidential appointments to federal district courts. We provide the first causal estimates of whether lawsuits end differently depending on their assignment to either a Democratic or a Republican appointed judge. We show Republican appointees cause fewer settlements and more dismissals, favoring defendants by around 5 percentage points. We estimate a similarly sized effect for a sample of civil rights appeals heard in the Ninth Circuit, raising questions about the conventional wisdom that politics matters more at higher levels of …

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

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In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …

Covid-19'S Impact On Families, Lawyers, And Courts: An Annotated Bibliography, Allen K. Rostron

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No abstract provided.

Statistical Precedent: Allocating Judicial Attention, Ryan W. Copus

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Suffering from a well-covered “crisis of volume,” the United States Courts of Appeals have patched together an ad hoc system of triage in an effort to provide cases with sufficient attention. For example, only some cases are assigned to central staff, analyzed by law clerks, orally argued, debated over by judges, or decided in published opinions. The courts have evaded overt disaster by increasing the number of active, senior, and visiting judges, but the additional personnel poses its own demands on attention—judges must also pay attention to one another in order to coherently develop and apply the law. With too …

Bias On Trial: Toward An Open Discussion Of Racial Stereotypes In The Courtroom, Mikah K. Thompson

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In the 2017 case Pena-Rodriguez v. Colorado, the U.S. Supreme Court discussed several safeguards that are in place to assist the trial court in identifying racial bias among jurors. These safeguards include voir dire examination regarding racial bias, observation of juror demeanor and conduct that might demonstrate racial bias, reports of racially biased comments or actions by jurors during trial, and non-juror evidence of racial bias after trial. The Court acknowledged that these safeguards may be insufficient at times and therefore added a fifth one, holding that trial courts may review evidence suggesting that racial bias was a motivating factor …

Institutional Competence And Civil Rules Interpretation, Lumen N. Mulligan, Glen Staszewski

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No abstract provided.

The Disconnected Juror: Smart Devices And Juries In The Digital Age Of Litigation, Patrick C. Brayer

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As we progress toward a post-digital age of individuals becoming one with technology, the legal profession will encounter an increasing number of jurors who have never known life without the Internet, social media or mobile devices. At the same time an increasing number of citizens are becoming dependent on digital technology, state supreme courts, state trial judges, and federal judges from across the nation are banning and confiscating cell phones, tablets, and other devices of connection to prevent jurors from engaging in misconduct. This article illuminates the unintended consequences that arise when courts remove from a sitting juror an individual …

Supreme Court Asked To Consider Role Of Post-Filing Evidence In Assessing Obviousness Of Pharmaceutical Inventions, Christopher M. Holman

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On January 20, 2015, Bristol-Myers Squibb petitioned for certiorari in Bristol-Myers Squibb v. Teva Pharmaceutical, asking whether an assessment of obviousness should "consider post-filing evidence showing the actual differences between a patented invention and the prior art." The district court had found patent claims directed towards Entacavir (an anti-hepatitis drug) obvious in view of structural similarity between the drug and a prior art compound, in spite of the fact that the prior art compound was highly toxic and therefore not a viable candidate for use as a human drug. A Federal Circuit panel affirmed the district court's decision to disregard …

Gully And The Failure To Stake A 28 U.S.C. § 1331 'Claim', Lumen N. Mulligan

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In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view — read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in …

Minding The Court: Enhancing The Decision-Making Process, Pamela Casey, Kevin Burke, Steve Leben

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A compelling and growing body of research from the fields of cognitive psychology and neuroscience provides important insights about how we process information and make decisions. This research has great potential significance for judges, who spend much of their time making decisions of great importance to others. For most judges, this research literature is not part of their judicial education. This article reviews cutting edge research about decision making and discusses its implications for helping judges and those who work with them produce fair processes and just outcomes. It builds on a 2007 American Judges Association paper that encouraged judges …

Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien

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Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases …

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

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In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a doctrinal level, …

The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski

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In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this …

An Expectation Of Empathy, Steve Leben

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No abstract provided.

Clear Rules - Not Necessarily Simple Or Accessible Ones, Lumen N. Mulligan

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In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend …

No Good Deed Goes Unpublished: Precedent-Stripping And The Need For A New Prophylactic Rule, Edward Cantu

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This paper addresses the “open secret” that federal appellate courts often strip their opinions of precedential value as a means to forgo fair, principled and/or thorough adjudication of issues raised in appeals. Is there a basis in contemporary constitutional doctrine for a presumption that appellants suffer constitutional injury when courts dispose of their appeals using non-precedential opinions? The author answers “yes.” The argument centers on case law establishing so-called “constitutional prophylactic rules,” which work to “overprotect” a given core right - that is, to create a presumption of constitutional injury without proof of it - when such is the only …

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

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In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

Federal Courts Not Federal Tribunals, Lumen N. Mulligan

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The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. - 1331 or Article III. Borrowing a phrase …

Batson, Empowerment And New Jury Models: The Case For ‘Open Inquiry’, Patrick C. Brayer

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This 2009 article recommends the practice technique of “open inquiry,” which encourages attorneys and courts to ask jurors to openly identify their race, gender, and ethnicity during voir dire for purposes of appellate review under Batson v. Kentucky and related holdings. An open inquiry helps protect the rights of all jurors to sit. It thus creates a greater chance that juries are more diverse and promotes more voices and experiences during deliberation. The open inquiry method also promotes individual juror participation and increases the group's receptiveness toward individual voices during deliberations. Most importantly, open inquiry forces practitioners to rethink how …

A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan

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Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

The Mcmartin Preschool Abuse Trial, Douglas O. Linder

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The McMartin Preschool Abuse Trial, the longest and most expensive criminal trial in American history, should serve as a cautionary tale. When it was all over, the government had spent seven years and $15 million dollars investigating and prosecuting a case that led to no convictions. More seriously, the McMartin case left in its wake hundreds of emotionally damaged children, as well as ruined careers for members of the McMartin staff. No one paid a bigger price than Ray Buckey, one of the principal defendants in the case, who spent five years in jail awaiting trial for a crime (most …

Trial Of The Rosenbergs: An Account, Douglas O. Linder

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The Rosenberg Trial is the sum of many stories: a story of betrayal, a love story, a spy story, a story of a family torn apart, and a story of government overreaching. As is the case with many famous trials, it is also the story of a particular time: the early 1950's with its cold war tensions and headlines dominated by Senator Joseph McCarthy and his demagogic tactics. The Manhattan Project was the name given to the top-secret effort of Allied scientists to develop an atomic bomb. One of the Manhattan Project scientists working in Los Alamos was a British …

Is Lilly Written Description Paper Tiger?: Comprehensive Assessment Of The Impact Of Eli Lilly And Its Progeny In The Courts And Pto, Christopher M. Holman

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In University of California v. Eli Lilly, decided by the Federal Circuit in 1997, the court established for the first time a new form of patent law's written description requirement, apparently targeted specifically at biotechnology. To this day, the conventional wisdom is that the so-called Lilly written description requirement (LWD) exists as a biotechnology-specific super-enablement requirement, substantially more stringent than the enablement requirement (the conventional standard for patentability), and standing as an impediment to effective patent protection for biotechnology inventions. My objective in writing this article was to test this conventional wisdom, by conducting a comprehensive search for all LWD …

The Supreme Court Report 2004-05: The End Of The Rehnquist Era, Julie M. Cheslik

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No abstract provided.

One Small Step For Women: Female-Friendly Provisions In The Rome Statute Of The International Criminal Court, Rana R. Lehr-Lehnardt

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No abstract provided.

Treat Your Women Well: Comparisons And Lessons From An Imperfect Example Across The Waters, Rana R. Lehr-Lehnardt

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A young woman could not endure another night with the elderly man she was forced to marry, so she slipped out of the house and spent the night with the young man she had loved for years and desperately wanted to marry. When the woman's father learned of the illicit behavior, he entered the police station where she had sought refuge and fired four shots at her. He shed his daughter's blood to cleanse the family's honor. Jordan, 1999

A jealous husband returned home from an evening at the mosque and accused his pregnant wife of having an affair. The …

On The Admissibility Of Expert Testimony In Kansas, Mark D. Hinderks, Steve Leben

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No abstract provided.

Juror Empathy And Race, Douglas O. Linder

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No abstract provided.

Trends In Constitution-Based Litigation In The Federal Courts, Douglas O. Linder

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No abstract provided.