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Articles 1 - 19 of 19
Full-Text Articles in Law
Judging Myopia In Hindsight: Bivens Actions, National Security Decisions, And The Rule Of Law, Peter Margulies
Judging Myopia In Hindsight: Bivens Actions, National Security Decisions, And The Rule Of Law, Peter Margulies
Law Faculty Scholarship
Liability in national security matters hinges on curbing both official myopia and hindsight bias. The Framers knew that officials could be short-sighted, prioritizing expedience over abiding values. Judicial review emerged as an antidote to myopia of this kind. However, the Framers recognized that ubiquitous second-guessing of government decisions would also breed instability. Balancing these conflicting impulses has produced judicial oscillation between intervention and deference. Recent decisions on Bivens claims in the war on terror have defined extremes of deference or intervention. Cases like Ashcroft v. Iqbal and Arar v. Ashcroft display a categorical deference that rewards officials' myopia. On the …
Introduction: Dukes V. Wal-Mart Stores, Inc., Elizabeth Chamblee Burch
Introduction: Dukes V. Wal-Mart Stores, Inc., Elizabeth Chamblee Burch
Scholarly Works
This short introduction to Dukes v. Wal-Mart Stores, Inc. aims to explain the case and to set the table for what promises to be thought-provoking roundtable discussion hosted by Vanderbilt Law Review En Banc. Accordingly, what follows is a concise overview of the legal background and current debate over the two procedural issues that the Ninth Circuit explored in detail – how to evaluate Rule 23(a)(2)’s commonality when common questions heavily implicate the case’s merits, and when a Rule 23(b)(2) class can include relief apart from injunctive or declaratory relief without endangering due process.
Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Samantha Zyontz, Martin H. Redish, Peter Julian
Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Samantha Zyontz, Martin H. Redish, Peter Julian
Faculty Scholarship
Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …
Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part Two, John H. Blume, Emily C. Paavola
Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part Two, John H. Blume, Emily C. Paavola
Cornell Law Faculty Publications
Part One of this article addressed the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements. Part Two discusses the Sixth Amendment, the 14th Amendment's Due Process Clause and impeachment issues.
Vol. 1 No. 2, Spring 2010; Iraq Veterans' War With The U.S. Department Of Veterans Affairs: Post Traumatic Stress Disorder Claims Under A Procedural Due Process Analysis, Purvi Shah
Northern Illinois Law Review Supplement
This Comment explores the Department of Veterans Affairs and its current disability compensation and medical care systems for soldiers who have returned from the War on Terror with mental health disabilities, such as post traumatic stress disorder. More specifically, this Comment analyzes two assertions made by veterans groups — Veterans United for Truth and Veterans for Common Sense — against the VA: (1) there is a lack of neutral decision-makers for veterans who would like to appeal their compensation amount , and (2) there is a lack of an additional procedure allowing a veteran with a mental health emergency to …
Equal Access And The Right To Marry, Nelson Tebbe, Deborah A. Widiss
Equal Access And The Right To Marry, Nelson Tebbe, Deborah A. Widiss
Cornell Law Faculty Publications
How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal …
Lethal Discrimination 2: Repairing The Remedies For Racial Discrimination In Capital Sentencing, J. Thomas Sullivan
Lethal Discrimination 2: Repairing The Remedies For Racial Discrimination In Capital Sentencing, J. Thomas Sullivan
Faculty Scholarship
No abstract provided.
Judicial Recusal & Expanding Notions Of Due Process, Andrey Spektor, Michael A. Zuckerman
Judicial Recusal & Expanding Notions Of Due Process, Andrey Spektor, Michael A. Zuckerman
Cornell Law School J.D. Student Research Papers
The merits of judicial elections have been litigated in journals around the country. In light of the recent Supreme Court decisions in White and Caperton, this debate will only intensify. Rather than revisit the arguments for and against electing judges, this Article argues that applying the Mathews v. Eldridge test in cases where a litigant’s due process is threatened by an elected judge—a possibility that the Court initially dismissed in White against Justice Ginsburg’s protests, and then took head on in Caperton—will balance First Amendment rights that judicial elections breed against the rights of the litigants that the Constitution protects. …
John Paul Stevens And Equally Impartial Government, Diane Marie Amann
John Paul Stevens And Equally Impartial Government, Diane Marie Amann
Scholarly Works
This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."
The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii
Faculty Publications
This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …
Justice Carter’S Role In The Caryl Chessman Cases: Due Process Matters, Susan Rutberg
Justice Carter’S Role In The Caryl Chessman Cases: Due Process Matters, Susan Rutberg
Publications
No abstract provided.
Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan
Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan
Faculty Publications
No abstract provided.
The Civil Case At The Heart Of Criminal Procedure: In Re Winship, Stigma, And The Civil-Criminal Distinction, W. David Ball
The Civil Case At The Heart Of Criminal Procedure: In Re Winship, Stigma, And The Civil-Criminal Distinction, W. David Ball
Faculty Publications
In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt. This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.” Civil statutes, however, can expose an individual to the same or greater deprivation of liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof. If Apprendi is, indeed, functional, why is it limited to …
Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks
Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks
Publications
This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the "health exception" to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition's conception of liberty is based on male experience, no theory of basic human rights grounded in women's reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the social aspect of …
Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam
Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam
Faculty Publications
It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …
Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine
Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine
Articles
President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …
Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe
Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe
Articles by Maurer Faculty
How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal …
A Structural Vision Of Habeas Corpus, Eve Brensike Primus
A Structural Vision Of Habeas Corpus, Eve Brensike Primus
Articles
As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …
Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus
Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus
Articles
The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …