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Series

2014

Faculty Publications

Discipline
Institution
Keyword

Articles 1 - 30 of 215

Full-Text Articles in Law

The Case For Ehearsay, Jeffrey Bellin Dec 2014

The Case For Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.


Rethinking Transparency In U.S. Elections, Rebecca Green Dec 2014

Rethinking Transparency In U.S. Elections, Rebecca Green

Faculty Publications

Bush v. Gore catapulted this country into a crisis of confidence in the management of our elections. Despite reforms since 2000, public confidence in election administration continues to wane. Are dead people on the rolls? Are noncitizens voting? Are provisional ballots wrongly rejected? State election transparency statutes meant to reassure the public that elections are producing legitimate results are often conflicting, vague, and even nonexistent. Exacerbating the problem, the last two decades have witnessed huge changes that offset the transparency balance. Dramatic changes in how Americans vote, how elections are administered, and who scrutinizes the election process call for a ...


Protecting Human Rights During Emergencies: Delegation, Derogation, And Deference, Evan J. Criddle Dec 2014

Protecting Human Rights During Emergencies: Delegation, Derogation, And Deference, Evan J. Criddle

Faculty Publications

Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximize human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals ...


Symposium On The Challenges Of Electronic Evidence, Daniel J. Capra, Sidney A. Fitzwater, Peter Pitegoff, Jeffrey S. Sutton, Paul Grimm, John Haried, Richard W. Vorder Bruegge, Jeffrey Bellin, Paul Scechtman, Deirdre M. Smith, Shira A. Scheindlin, David Shonka, Daniel Gelb, Andrew Goldsmith, George Paul, Paul Lippe Dec 2014

Symposium On The Challenges Of Electronic Evidence, Daniel J. Capra, Sidney A. Fitzwater, Peter Pitegoff, Jeffrey S. Sutton, Paul Grimm, John Haried, Richard W. Vorder Bruegge, Jeffrey Bellin, Paul Scechtman, Deirdre M. Smith, Shira A. Scheindlin, David Shonka, Daniel Gelb, Andrew Goldsmith, George Paul, Paul Lippe

Faculty Publications

No abstract provided.


Prediction Theories Of Law And The Internal Point Of View, Michael S. Green Dec 2014

Prediction Theories Of Law And The Internal Point Of View, Michael S. Green

Faculty Publications

No abstract provided.


Intellectual Origins Of (Modern) Substantive Due Process, The, Joshua D. Hawley Dec 2014

Intellectual Origins Of (Modern) Substantive Due Process, The, Joshua D. Hawley

Faculty Publications

Almost fifty years after the Supreme Court revived the doctrine, substantive due process remains a puzzle. Detractors insist it is nothing more than judicial policy making. Defenders say it accords with the deepest values of the Constitution. But on all sides, the present scholarly debate suffers from an impoverished understanding of modern substantive due process's intellectual history, which has led to an impoverished understanding of the doctrine's core normative content. It is time for a revisionist turn. This Article supplies that turn by excavating the intellectual origins of modern substantive due process and relating that history to the ...


In Re Sanders And The Resurrection Of Stanley V. Illinois, Josh Gupta-Kagan Nov 2014

In Re Sanders And The Resurrection Of Stanley V. Illinois, Josh Gupta-Kagan

Faculty Publications

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care. Somewhat oddly, Stanley went on to be cited as a leading case regarding the rights of unwed fathers to object to private adoptions favored by mothers -- an issue not present in Stanley. Odder still, most states routinely violated Stanley in child welfare cases -- the context in which the Stanley rule arose. Most states apply the "one parent doctrine," which holds that finding one parent unfit justifies taking the child into foster ...


The Trouble With Amicus Facts, Allison Orr Larsen Nov 2014

The Trouble With Amicus Facts, Allison Orr Larsen

Faculty Publications

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to ...


Rights Speech, Timothy Zick Nov 2014

Rights Speech, Timothy Zick

Faculty Publications

Freedom of expression has a complex and dynamic relationship with a number of other constitutional rights, including abortion, the right to bear arms, equal protection, the franchise, and religious liberty. This Article discusses one aspect of that relationship. It critically analyzes the regulation of "rights speech" - communications about or concerning the recognition, scope, or exercise of constitutional rights. As illustrative examples, the Article focuses on regulation of speech about abortion and the Second Amendment right to bear arms. Governments frequently manage, structure, and limit how individuals discuss constitutional rights. For example, laws and regulations compel physicians to convey information to ...


Equitable Anti-Junction Act, The, Erin Morrow Hawley Nov 2014

Equitable Anti-Junction Act, The, Erin Morrow Hawley

Faculty Publications

The (AIA or the Act) has never been more important. Originally enacted to expedite the collection of revenue-raising taxes, courts and scholars have for years assumed that the statute imposes a jurisdictional bar on any pre-enforcement challenge to a tax. On this interpretation, taxpayers subject to an invalid tax have two choices only: comply or pay the tax and pursue a refund. Read this way, the Act is a marked departure from the general rule that pre-enforcement challenges are permissible so long as justiciability requirements are met. And it imposes a marked burden on aggrieved taxpayers that grows all the ...


Vertical Power, Michael S. Green Nov 2014

Vertical Power, Michael S. Green

Faculty Publications

Many legal scholars and federal judges - including Justices Ginsburg and Scalia - have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), 1 argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state's assertion of vertical power would improperly discriminate against federal courts. If state law ...


The Supreme Court Of Canada: Policy-Maker Of The Year, Benjamin Perrin Nov 2014

The Supreme Court Of Canada: Policy-Maker Of The Year, Benjamin Perrin

Faculty Publications

Each year, the Macdonald-Laurier Institute for Public Policy recognizes a “Policy-Maker of the Year”. Past recipients have included former Bank of Canada Governor Mark Carney and Foreign Minister John Baird, who have had a tremendous impact on our country’s economic stability and international stature, respectively. One could argue that, while people in such positions are undoubtedly influential, there is another entity that is rarely acknowledged for its influence on policy, but in the last year has changed Canadian public policy in wide-reaching and long-lasting ways – the Supreme Court of Canada (SCC). This paper examines the Court’s 10 most ...


Inter Partes Review: An Early Look At The Numbers, Brian Love, Shawn Ambwani Oct 2014

Inter Partes Review: An Early Look At The Numbers, Brian Love, Shawn Ambwani

Faculty Publications

In the roughly two years since inter partes review replaced inter partes reexamination, petitioners have filed almost two-thousand requests for the Patent Trial and Appeal Board to review the validity of issued U.S. patents. As partial data on inter partes review (IPR) has trickled out via the blogosphere, interest from patent practitioners and judges has grown to a fever (and sometimes fevered) pitch. To date, however, no commentator has collected a comprehensive set of statistics on IPR. Moreover, what little data currently exists focuses on overall institution and invalidation rates — data that, alone, gives us little idea whether IPR ...


An Ntsb For Capital Punishment, Adam M. Gershowitz Oct 2014

An Ntsb For Capital Punishment, Adam M. Gershowitz

Faculty Publications

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When afatal airplane crash occurs, however, we turn instead to the National Transportation Safety Board (NTSB). The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and ...


The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin Oct 2014

The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin

Faculty Publications

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all ...


Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz Oct 2014

Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz

Faculty Publications

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations ...


Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney Oct 2014

Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.


Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin Oct 2014

Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin

Faculty Publications

This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case. The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective ...


Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker Oct 2014

Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker

Faculty Publications

No abstract provided.


Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande Oct 2014

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande

Faculty Publications

Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases ...


Reforming High School American History Curricula: What Publicized Student Intolerance Can Teach Policymakers, Douglas E. Abrams Oct 2014

Reforming High School American History Curricula: What Publicized Student Intolerance Can Teach Policymakers, Douglas E. Abrams

Faculty Publications

This article concerns the way public high schools teach American history under curricula and standards mandated by state law. “We’re raising young people who are, by and large, historically illiterate,” says David McCullough, the dean of American historians.

The article describes three recent nationally publicized incidents in which high school students belittled lynching and the Trail of Tears, evidently without appreciating the episodes’ legal and historical significance to African Americans and Native Americans respectively. Standards and textbooks typically recognize diversity and multiculturalism, but research and surveys indicate that classroom teachers frequently sanitize or avoid discomforting topics that might trigger ...


A Framework For Advancing Negotiation Theory: Implications From A Study Of How Lawyers Reach Agreement In Pretrial Litigation, John M. Lande Oct 2014

A Framework For Advancing Negotiation Theory: Implications From A Study Of How Lawyers Reach Agreement In Pretrial Litigation, John M. Lande

Faculty Publications

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes–adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. Analyzing law school textbook definitions of the traditional models, this article demonstrates that the two “round holes” in current negotiation theory are poorly defined. It also presents empirical accounts of actual pretrial negotiations to demonstrate that the theoretical models do not fit some real-life negotiations. It argues that it is time to replace the traditional models with a flexible framework that can accommodate virtually all ...


Conflicting Preferences In Business Bankruptcy: The Need For Different Rules In Different Chapters, Brook E. Gotberg Oct 2014

Conflicting Preferences In Business Bankruptcy: The Need For Different Rules In Different Chapters, Brook E. Gotberg

Faculty Publications

The law of preferential transfers permits the trustee of a bankruptcy estate to avoid transfers made by the debtor to a creditor on account of a prior debt in the 90 days leading up to the bankruptcy proceeding. The standard for avoiding these preferential transfers is one of strict liability, on the rationale that preference actions exist to ensure that all general creditors of the bankruptcy estate recover the same proportional amount, regardless of the debtor's intent to favor any one creditor or the creditor's intent to be so favored. But preference law also permits certain exceptions to ...


An Offer They Can’T Refuse: Teaching Persuasive Writing Through A Settlement Offer Email Assignment, Alyssa Dragnich, Rachel H. Smith Oct 2014

An Offer They Can’T Refuse: Teaching Persuasive Writing Through A Settlement Offer Email Assignment, Alyssa Dragnich, Rachel H. Smith

Faculty Publications

(Excerpt)
Do you catch more flies with honey than with vinegar? Our first-year legal writing students had to confront this question as part of a new assignment we introduced in the spring of 2014 that required them to write an email settlement offer to opposing counsel. This assignment fit easily into our trial and appellate brief assignments, allowed students to learn about persuasive writing in a new format, and helped students experience a bit of the creativity of law practice.

At Miami Law, we follow a fairly traditional model for a two-semester legal writing curriculum. In the fall, students learn ...


Jurisdictional Question In Hobby Lobby, The, Erin Morrow Hawley Sep 2014

Jurisdictional Question In Hobby Lobby, The, Erin Morrow Hawley

Faculty Publications

Burwell v. Hobby Lobby Stores may well be the biggest case of the term. And by its own rules, the Supreme Court lacked jurisdiction. An obscure statute, the Anti-Injunction Act of 1867 (“the AIA”), imposes a pay-first requirement for federal tax challenges. The deeply held conventional wisdom is that the AIA is a jurisdictional statute, and there is a good argument that the AIA applies to the contraception mandate. As we learned from National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), the best evidence of whether Congress intended the AIA to apply is the text. The ...


'Sophisticated Robots': Balancing Liability, Regulation, And Innovation, F. Patrick Hubbard Sep 2014

'Sophisticated Robots': Balancing Liability, Regulation, And Innovation, F. Patrick Hubbard

Faculty Publications

Our lives are being transformed by large mobile “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements to reduce the number and severity of injuries.

This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation necessary to ...


The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz Aug 2014

The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz

Faculty Publications

No abstract provided.


Juries, Social Norms, And Civil Justice, Jason M. Solomon Aug 2014

Juries, Social Norms, And Civil Justice, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article ...


Featuring People In Ads (2014 Edition), Eric Goldman, Rebecca Tushnet Aug 2014

Featuring People In Ads (2014 Edition), Eric Goldman, Rebecca Tushnet

Faculty Publications

This is a book chapter from the 2014 edition of a casebook, Advertising & Marketing Law: Cases and Materials, by Rebecca Tushnet and Eric Goldman. This chapter examines the legal issues arising from featuring people in advertisements, including publicity rights and endorsement/testimonial guidelines.


Law School Training For Licensed 'Legal Technicians'? Implications For The Consumer Market, Elizabeth Chambliss Jul 2014

Law School Training For Licensed 'Legal Technicians'? Implications For The Consumer Market, Elizabeth Chambliss

Faculty Publications

In January 2014, the ABA Task Force on the Future of Legal Education released its report calling, among other things, for limited licensing and the expansion of independent paraprofessional training by law schools. In Washington State, all three law schools are collaborating with community college paralegal programs to design and deliver specialized training for “Limited License Legal Technicians” (LLLTs), who will be licensed to deliver limited family law services beginning in 2015. At least three other states, including California and New York — which together contain nearly twenty-six percent of U.S. lawyers and seventy-six law schools — are actively seeking ways ...