Law Commons^™

Is The #Metoo Movement For Real? The Implications For Jurors’ Biases In Sexual Assault Cases, Mary Graw Leary

Scholarly Articles

This Article examines the emerging research on the #MeToo movement and its potential effects on the population of potential jurors, exploring the possibility of improving the jury pool in sexual assault cases. Part I discusses the current problem of attrition in sexual assault cases. Part II examines the substantial body of literature surrounding this attrition and the potential reasons for it. Part III explores the #MeToo movement and reviews the emerging body of research regarding it. Part III also considers whether the movement will impact juries positively or whether the attrition rates based on rape myths, misogyny, and rape culture …

Impact Of The Strict Scrutiny Standard Of Judicial Review On Abortion Legislation Under The Kansas Supreme Court’S Decision In Hodes & Nauser V. Schmidt, Elizabeth Kirk

Scholarly Articles

This paper is focused on a narrow matter, namely, the nature of the standard of judicial review adopted by the Kansas Supreme Court in Hodes & Nauser v. Schmidt. 2 The most important (and decisive) point to emphasize is that the standard of judicial review adopted by the court in Hodes is so rigorous that it is likely to unsettle existing abortion law in Kansas and result in a legal landscape for abortion in this state that is more permissive of abortion than either the current federal standard or the original federal standard established by Roe v. Wade.

In order …

Administrative Power And Religious Liberty At The Supreme Court, Mark L. Rienzi

Scholarly Articles

The Supreme Court has recently seen an increase in the number of religious exercise cases in which the conflict was caused by an act of administrative power, rather than an act of legislative power. There are probably several reasons for this increase, including the growth, size, and flexibility of the administrative state, political convenience, and the fact that administrators tend to be specialists who may be unaware of or undervalue competing interests like religious liberty.

While the sheer size, reach, flexibility, and specialization of the administrative state means we will likely continue to see more religious exercise conflicts caused by …

An Erie Approach To Privilege Doctrine., Megan M. La Belle

Scholarly Articles

This short essay considers the HannStar and Silver cases and begins a discussion of the impact that the Erie doctrine has—and, more importantly, ought to have—on privilege law. While Erie is considered by many as “one of the modern cornerstones of our federalism,” the doctrine is important too for the change it can effect through the cross pollination of ideas among tribunals. Because privilege laws reflect deliberate policy choices by legislatures and courts, the Erie doctrine arguably plays a particularly vital role in developing this area of the law.

Without Evidence: Joel Richard Paul’S John Marshall, Kevin C. Walsh

Scholarly Articles

John Marshall—soldier, lawyer, legislator, statesman, and fourth chief justice of the United States—led a long public life that spanned from the American Revolution to the rise of Jacksonian democracy. Joel Richard Paul’s full-length biography takes the reader from Marshall’s birth on the Virginia frontier in 1755, to his death in 1835 at the head of an American judiciary that had gained significantly in power and respect because of Marshall’s leadership over the preceding 34 years.

The Local Rules Of Patent Procedure, Megan M. La Belle

Scholarly Articles

Congress, the Executive, and the Judiciary have all had “patent litigation abuse” on their minds recently. The concern is that too many frivolous patent suits are being filed and used to extract unwarranted settlements. The story is that bad actors—patent assertion entities (PAEs) or, more pejoratively, “patent trolls”—are suing small companies and end users for patent infringement even though PAEs make no patented products themselves. Over the past two years, Congress proposed nearly a dozen bills aimed at curbing patent litigation abuse, the Executive took various anti-troll measures, and the Supreme Court decided a pair of cases that make it …

Making Turner A Reality - - Improving Access To Justice Through Court-Annexed Resource Centers And Same Day Presentation, Stacy Brustin

Scholarly Articles

This article will propose recommendations for implementing meaningful "alternative procedural safeguards." It will highlight a program that uses an innovative model of pro se assistance and limited representation, and will discuss the limitations that even the most innovative programs face in trying to offer adequate alternatives to full representation. The article will also analyze the ethical obstacles that court-based assistance programs face, and offer strategies that attorneys can use to meet their ethical duties regarding confidentiality, competence, avoidance of conflicts of interest, and independence of professional judgment.

While the procedural safeguards that the Court suggests in Turner might, in theory, …

Observations On Macdonald V. Moose, Kevin C. Walsh

Scholarly Articles

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.

The panel majority misapplied the deferential standard of review required by Congress for federal habeas …

Real Judicial Restraint, Joel Alicea

Scholarly Articles

The conservative legal movement has long stood simultaneously for originalism and judicial restraint. But in the past few years, the tension between a commitment to interpreting the Constitution as its authors intended and deferring to the will of legislators and the executive has become painfully clear. Does originalism demand judicial restraint, or is the Constitution undermined by such restraint?

Chief Justice Roberts And The Changing Conservative Legal Movement, Joel Alicea

Scholarly Articles

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a …

Differentiating The Federal Circuit, Elizabeth I. Winston

Scholarly Articles

In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished. Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit’s structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction – the very essence of the court sets it apart …

Federal Courts, Overbreadth, And Vagueness: Guiding Principles For Constitution Challenges To Uninterpreted State Statutes, Mark L. Rienzi, Stuart Buck

Scholarly Articles

When a federal court is asked to declare an uninterpreted state law to be unconstitutionally overbroad or vague, it faces several tensions. On one side, the overbreadth and vagueness doctrines urge the court to strike down the statute on its face. On the other side, the related doctrines of constitutional avoidance, narrowing interpretations, abstention and certification all urge the court to find some way to save the statute at least as to some applications. But because of the cardinal principle that federal courts are not the final authority on the interpretation of state law, many federal courts err on the …

Whom Do You Trust?: Judicial Independence, The Power Of The Purse And The Line-Item Veto, Robert A. Destro

Scholarly Articles

No abstract provided.

Constitutionalism, Judicial Review, And The World Court, Geoffrey R. Watson

Scholarly Articles

This Article considers whether the World Court can and should review the validity of acts of the Security Council and General Assembly. Part I argues that the text and negotiating history of the U.N. Charter leave room for the World Court to exercise at least some power of judicial review but do not delineate the precise scope or effect of such review. Part II asserts that the World Court has in fact repeatedly exercised a power of judicial review, albeit deferentially, over acts by the Security Council and the General Assembly. Part III argues that the World Court can review …

Defending Defenders: Remarks On Nichol And Pierce, Marshall J. Breger

Scholarly Articles

No abstract provided.

The Supreme Court’S Administrative Law Docket: Proceedings From The Administrative Conference Of The United States, Marshall J. Breger

Scholarly Articles

No abstract provided.

Religious Freedom During The 1985–1986 Supreme Court Term: Adrift On Troubled Waters, Robert A. Destro

Scholarly Articles

The 1985-86 Term of the Supreme Court was characterized by continuing deep divisions within the Court regarding the nature of religious freedom, the role of religion in society, and the constitutional approach which should be adopted for cases raising religious freedom issues. In all, the Court decided five major religious freedom cases with full opinions, granted review in two cases, and denied review in at least thirty-three others. In addition, three other cases decided on the merits which did not specifically involve religious freedom did include discussion of important questions concerning the relationship of law and religion. In the summary …

The Social Security Court Proposal: A Critique, J.P. "Sandy" Ogilvy

Scholarly Articles

Following a brief description of the present system of judicial review of social security decisions, and a look at the proposed Social Security Court alternative, this article examines in some detail the reasons generally suggested as compelling the creation of a specialty court. Next, the article examines the goals and values of judicial review and discusses the Social Security Court concept as a vehicle to achieve these goals and values. Finally, the article suggests several less drastic legislative, administrative and judicial alternatives to a special court.

An Examination Of The Federal Rules Of Appellate Procedure, Harvey L. Zuckman

Scholarly Articles

My plan here is to note first major changes in appellate procedure wrought by the new federal rules generally and then to comment in some detail upon what I consider to be the most important rules. Where appropriate, I shall note changes in procedure in the individual circuits, particularly the Seventh, Eighth and Tenth Circuits.