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Articles 1 - 13 of 13
Full-Text Articles in Law
Mandatory Arbitration Stymies Progress Towards Justice In Employment Law: Where To, #Metoo?, Jean R. Sternlight
Mandatory Arbitration Stymies Progress Towards Justice In Employment Law: Where To, #Metoo?, Jean R. Sternlight
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Today our employment law provides workers with far more protection than once existed with respect to hiring, firing, salary, and workplace conditions. Despite these gains, continued progress towards justice is currently in jeopardy due to companies’ imposition of mandatory arbitration on their employees. By denying their employees access to court, companies are causing employment law to stultify. This impacts all employees, but particularly harms the most vulnerable and oppressed members of our society for whom legal evolution is most important. If companies can continue to use mandatory arbitration to eradicate access to court, where judges are potentially influenced by social …
Judicial Peremptory Challenges As Access Enhancers, Jeffrey W. Stempel
Judicial Peremptory Challenges As Access Enhancers, Jeffrey W. Stempel
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Discussions regarding diminishing access to justice have centered on the high disputing costs, gradual contraction of substantive rights, and increasingly defendant-friendly procedure. The importance of the ideological, experiential, and jurisprudential orientation of the judges presiding over litigation at the trial level has received much less-and insufficient-attention. Because so much focus has been on federal appellate courts, commentators have largely overlooked a potentially powerful tool for improving access and promoting a fair airing of claims at the trial level: a litigant's automatic ability to transfer a case to a different judge as a matter of right to avoid judges who are …
Justice As Fair Division, Ian C. Bartrum
Justice As Fair Division, Ian C. Bartrum
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The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court's decision-making process might act to reverse this loop and work to depoliticize the Court …
Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Katherine R. Kruse
Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Katherine R. Kruse
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The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality, and justice. Unfortunately, in the process, the field of theoretical legal ethics has mostly lost track of the thing that Freedman insisted was at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. As I will discuss, the field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. I am going …
Dispute Resolution And The Quest For Justice, Jean R. Sternlight
Dispute Resolution And The Quest For Justice, Jean R. Sternlight
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During and since the 1976 Pound conference, the rise of nonlitigation approaches has sparked an intense debate as to whether negotiation, mediation, and arbitration are consistent with justice or rule of law, and whether litigation itself is sufficiently accessible to support a quest for justice. This article offers observations on questions related to this debate, including whether procedure matters, the limits of procedural reform, whether some processes are more just than others, and how procedural reforms enhance justice.
Finding A Right To The City: Exploring Property And Community In Brazil And In The United States, Ngai Pindell
Finding A Right To The City: Exploring Property And Community In Brazil And In The United States, Ngai Pindell
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Increasing poor people's access to property and shelter in urban settings raises difficult questions over how to define property and, likewise, how to communicate who is entitled to legal property protections. An international movement - the right to the city - suggests one approach to resolving these questions. This Article primarily explores two principles of the right to the city - the social function of property and the social function of the city - to consider how to better achieve social and economic justice for poor people in urban areas. Using Brazil as one example of a country incorporating these …
Creeping Mandatory Arbitration: Is It Just?, Jean R. Sternlight
Creeping Mandatory Arbitration: Is It Just?, Jean R. Sternlight
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This Article examines the phenomenon of mandatory binding arbitration, imposed on consumers and employees, and considers whether this type of dispute resolution serves or instead undermines justice. It is fairly easy to attack binding arbitration as unfair, for example pointing to the fact that it undermines rights to jury trial and to proceed in class actions. However, this Article seeks to examine the phenomenon of mandatory binding arbitration from a broader perspective, recognizing that it is inappropriate to assume that justice requires our existing system of litigation, with its class actions and jury trial. The Article concludes that while informal …
First Amendment Freedoms And The Encryption Export Battle: Deciphering The Importance Of Bernstein V. United States Department Of Justice, 176 F.3d 1132 (9th Cir. 1999), David Mcclure
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For many years, a battle has raged over export restrictions on strong encryption products. Encryption ensures confidential and secure communications among individuals, and the Commerce Department and the State Department have long restricted its export because of national security concerns. Industry and privacy groups have fought against the restrictions for various reasons, ranging from the desire to sell encryption software in new markets to preventing government from accessing personal communications between individuals. Daniel Bernstein, a computer science graduate student, challenged these restrictions in 1996, placing himself in the center of this ongoing battle. In 1999, the Ninth Circuit Court of …
Book Review, David S. Tanenhaus
Book Review, David S. Tanenhaus
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In his engaging The Supreme Court and Juvenile Justice, political scientist Christopher P. Manfredi argues that Americans in the 1990s are still feeling the powerful and unintended consequences of a trilogy of Supreme Court decisions, Kent v. United States (1966), In re Gault (1967), and In re Winship (1970). In Gault, the most famous of these cases, Justice Abe Fortas announced that it was time for the “constitutional domestication” of the nation’s juvenile courts and began this process by extending limited due process protection to offenders during adjudicatory hearings. Fortas believed that these protections would shield juveniles from unlimited …
Jurisdiction, Definition Of Crimes, And Triggering Mechanisms, Christopher L. Blakesley
Jurisdiction, Definition Of Crimes, And Triggering Mechanisms, Christopher L. Blakesley
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The opportunity to create an international court that provides fair, equitable, and efficient justice is rare and important. It requires expertise in comparative and international law. Problems are serious, however. Failure to address the formidable problems could cause the Court to run a risk of failure that could be disastrous for international law, for the victims of the horrors that have occurred and that will occur, and for the world. Failure could come in at least two forms: (1) the Court could merely be a conduit for retribution after a pro-forma kangaroo court or (2) it will not have sufficient …
Nurturing The Impulse For Justice, Lynne Henderson
Nurturing The Impulse For Justice, Lynne Henderson
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No abstract provided.
Reactions To Opression: Jurisgenesis In The Jurispathic State, John Valery White
Reactions To Opression: Jurisgenesis In The Jurispathic State, John Valery White
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This Note offers a model for analyzing the political and legal traditions of oppressed communities and developing a jurisprudence that accurately reflects the communities' views. Under this model, each of these diverse views can be understood from one of four perspectives: parochialism, fatalism, neo-liberalism, and individualism. These four perspectives are defined by an oppressed community's members' aspirations for liberation. Different ideals of justice and liberation underlie each perspective. Though touching on some of the communities' sentiments, the examinations of scholars of color have thus far been largely piecemeal, overemphasizing certain views, unwittingly combining divergent views, or marginalizing and dismissing unpopular …
A Distorted Mirror: The Supreme Court's Shimmering View Of Summary Judgment, Directed Verdict, And The Value Of Adjudication, Jeffrey W. Stempel
A Distorted Mirror: The Supreme Court's Shimmering View Of Summary Judgment, Directed Verdict, And The Value Of Adjudication, Jeffrey W. Stempel
Scholarly Works
As almost anyone alive during the past decade knows, this is the era of the ‘litigation explosion,’ or there is at least the perception that a litigation explosion exists. Although all agree that the absolute number of lawsuits has increased in virtually every corner of the state and federal court systems, there exists vigorous debate about whether the increase is unusual in relative or historical terms and even more vigorous debate about whether the absolute increase in cases symbolizes the American concern for fairness and justice or represents a surge in frivolous or trivial disputes needlessly clogging the courts. As …