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Articles 1 - 19 of 19
Full-Text Articles in Law
Critical Error, Bryan L. Adamson
Critical Error, Bryan L. Adamson
Bryan L Adamson
Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …
Statistical String Theory For Courts: If The Data Don't Fit..., David F. Babbel
Statistical String Theory For Courts: If The Data Don't Fit..., David F. Babbel
David F Babbel
The primary purpose of this article is to provide courts with an important new tool for applying the correct probability distribution to a given legal question. This tool is path-breaking and will have an extensive impact on how a wide variety of cases are decided. In areas as diverse as criminal prosecutions and civil lawsuits alleging securities fraud, courts must assess the relevance and reliability of statistical data and the inferences drawn therefrom. But, courts and expert witnesses often make mistaken assumptions about what probability distributions are appropriate for their analyses. Using the wrong probability distribution can lead to invalid …
Critical Error, Bryan Adamson
Critical Error, Bryan Adamson
Bryan L Adamson
Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …
State Courts, State Territory, State Power: Reflections On The Extraterritoriality Principle In Choice Of Law And Legislation, Katherine J. Florey
State Courts, State Territory, State Power: Reflections On The Extraterritoriality Principle In Choice Of Law And Legislation, Katherine J. Florey
Katherine J. Florey
An important (if sometimes poorly understood) extraterritoriality principle constrains the reach of the laws state legislatures may constitutionally enact. Indeed, the Supreme Court has at times suggested that this principle serves to invalidate any “application of a state statute to commerce that takes place wholly outside of the State’s borders.” In the choice-of-law context, however, state courts make the decision to apply state law (including state statutory law) to out-of-state activities (including commercial activities) constantly and routinely. Yet because state courts’ choice-of-law decisions are subject only to the very minimal constraints of the Due Process Clause, the application of forum …
The Appropriations Power And Sovereign Immunity, Jay Tidmarsh, Paul F. Figley
The Appropriations Power And Sovereign Immunity, Jay Tidmarsh, Paul F. Figley
Jay Tidmarsh
Historical discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence — or non-existence — of sovereign immunity begin with the English and American common-law doctrines of sovereign immunity, and ask whether the founding period altered that doctrine. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690-1700), which is often regarded as the first …
"Props" In The Law School Classroom: A Calendar For The Civil Procedure Course, Charles Rees
"Props" In The Law School Classroom: A Calendar For The Civil Procedure Course, Charles Rees
Charles A Rees
If, as Shakespeare said, "all the world's a stage," how can we instructors bring more drama to the law school classroom? In particular, how can "props" be used in a course, such as Civil Procedure, to improve learning and have fun? In my Civil Procedure course the "props" include characters from literature--Sherlock Holmes, Hamlet's graveyard scene with Yorick's skull, Alice in Wonderland meeting Tweedledum and Tweedledee, and a new superhero ("Leatherman"). I also use games-spelling bee, yo-yo, "Clue" boardgame, and crossword puzzle. There are articles of clothing--suitcase full of shoes, toga, and flip-flops; and costumes--Nixon mask, wigs, and motorcycle helmet. …
The Puzzle Of Privileges In Interstate Litigation, Graham C. Lilly
The Puzzle Of Privileges In Interstate Litigation, Graham C. Lilly
Graham C Lilly
No abstract provided.
Are Contingent-Fee Attorneys Deterred?: How Courts Can More Effectively Police Adhesive Arbitration Agreements, Kenyon Harbison
Are Contingent-Fee Attorneys Deterred?: How Courts Can More Effectively Police Adhesive Arbitration Agreements, Kenyon Harbison
Kenyon D Harbison
If you’re like me, you become bound by a new arbitration agreement almost every day, sometimes without even knowing it. They are included with banking and credit card statements, in most employment contracts, and in most purchase agreements. When we make purchases online we ‘click’ our assent to them without reading them. When we receive them in the mail we signal our assent by failing to opt out. But what happens when we are injured, defrauded, or cheated, try to sue, and find we are instead subject to arbitration? What standards can we expect courts to apply if we challenge …
Sovereign Immunity’S Penumbras: Common Law, ‘Accident,’ And Policy In The Development Of Sovereign Immunity Doctrine, Katherine J. Florey
Sovereign Immunity’S Penumbras: Common Law, ‘Accident,’ And Policy In The Development Of Sovereign Immunity Doctrine, Katherine J. Florey
Katherine J. Florey
“Sovereign Immunity’s Penumbras” attempts to make a fresh contribution to sovereign immunity scholarship by examining how sovereign immunity doctrine develops at the margins. At their core, what sovereign immunity doctrines prohibit is generally clear: a suit against an unconsenting sovereign (whether a state, a tribe, a foreign nation, or the federal government) for money damages. When suits fall outside this configuration, however, courts often have difficulty determining exactly how far the doctrine should extend. What should courts do, for example, when a sovereign is not a named defendant in a given suit, but will have to join the litigation if …
Finding An Erie Conflict Where None Exists -- State Offer Of Judgment Rules Overwhelmingly Apply In Diversity Cases, Michelle Hartmann, T. Ray Guy
Finding An Erie Conflict Where None Exists -- State Offer Of Judgment Rules Overwhelmingly Apply In Diversity Cases, Michelle Hartmann, T. Ray Guy
Michelle Hartmann
Although its purpose is oft times exaggerated, Rule 68 of the Federal Rules of Civil Procedure (“Federal Rule 68”) is a procedural “cost-shifting” tool that was intended to apply only in limited circumstances and is interpreted rarely to shift post-offer attorneys’ fees. In contrast to Federal Rule 68’s limited scope, numerous states have passed robust offer of judgment rules that are broader in purpose than Federal Rule 68. These rules offer various penalties for failing to accept qualified offers of judgment, including the shifting or barring of post-offer attorneys’ fees, interest, double costs, prevailing party damages, and “delay” damages. This …
Twombly: The Demise Of Notice Pleading, The Triumph Of Milton Handler And The Uncertain Future Of Private Antitrust Enforcement, Edward D. Cavanagh
Twombly: The Demise Of Notice Pleading, The Triumph Of Milton Handler And The Uncertain Future Of Private Antitrust Enforcement, Edward D. Cavanagh
Edward D. Cavanagh
No abstract provided.
"Old And Making Hay:" The Results Of The Pro Bono Institute Survey On The Viability Of A "Second Acts" Program To Transition Attorneys To Retirement Through Pro Bono Work, Kenneth G. Dau-Schmidt, Esther F. Lardent, Reena Glazer, Kellen Ressmeyer
"Old And Making Hay:" The Results Of The Pro Bono Institute Survey On The Viability Of A "Second Acts" Program To Transition Attorneys To Retirement Through Pro Bono Work, Kenneth G. Dau-Schmidt, Esther F. Lardent, Reena Glazer, Kellen Ressmeyer
Kenneth G. Dau-Schmidt
In his 1998 Fairchild Lecture, Professor Marc Galanter proposed the idea that senior attorneys should be encouraged to undertake “a second ‘public service’ career” as a way of transitioning to retirement. The logic for encouraging such “Second Acts” in lawyers’ careers is compelling. As Professor Galanter has demonstrated, in the coming years, there will be record numbers of attorneys navigating the transition to retirement as the “Baby Boomers” reach their golden years. This substantial body of highly skilled lawyers could have a significant impact on fulfilling unmet needs for legal representation. If even 5% of the practicing attorneys over sixty-five …
Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Schaffzin
Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Schaffzin
Katharine Traylor Schaffzin
The common interest doctrine offers many time and cost-saving advantages to clients. It also carries with it the consequence that counsel representing a party to a common interest group accept ethical or fiduciary responsibilities on behalf of the other members of that group. This pseudo-attorney-client relationship may limit an attorney's abilities to fulfill her ethical obligations to her client. This article explores the mechanisms for protecting the client and the attorney before entering a common interest arrangement.
Property: Cases, Documents, And Lawyering Strategies, David Caudill, David Crump, David Hricik
Property: Cases, Documents, And Lawyering Strategies, David Caudill, David Crump, David Hricik
David S Caudill
No abstract provided.
California's Dueling Harmless Error Standards: Approaches To Federal Constitutional Error In Civil Trials And Establishing The Proper Test For Dependency, Meehan Rasch
Meehan Rasch
For forty years, California appellate courts generally have applied one discrete harmless error test for federal constitutional error in criminal cases and another for civil proceedings. In appeals from convictions in California state criminal cases, errors rising to a federal constitutional dimension are governed by the standard of Chapman v. California, which requires that these errors be proven by the state to be harmless beyond any reasonable doubt. The more lenient standard (for the trial court) of People v. Watson, which holds errors of state law and procedure harmless unless there is a reasonable probability that such error prejudiced the …
Idealized Images Of Science In Law: The Expert Witness In Trial Movies, David Caudill
Idealized Images Of Science In Law: The Expert Witness In Trial Movies, David Caudill
David S Caudill
No abstract provided.
Claims, Civil Actions, Congress & The Court: Limiting The Reasoning Of Cases Construing Poorly Drawn Statutes, Joan Steinman
Claims, Civil Actions, Congress & The Court: Limiting The Reasoning Of Cases Construing Poorly Drawn Statutes, Joan Steinman
Joan E. Steinman
No abstract provided.
Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat
Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat
Martin H. Malin
Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.
A Slapp In The Face: Why Principles Of Federalism Suggest That Federal District Courts Should Stop Turning The Other Cheek, Lisa Litwiller
A Slapp In The Face: Why Principles Of Federalism Suggest That Federal District Courts Should Stop Turning The Other Cheek, Lisa Litwiller
Lisa Litwiller
This article examines the nexus between state and federal law where SLAPP and Anti-SLAPP statutory schemes are litigated by a federal district court sitting in diversity. In particular, this article will explore the standard the federal court should apply when an Anti-SLAPP early motion to dismiss is brought by SLAPP defendant and the plaintiff challenges dismissal on the basis of the Federal Rules of Civil Procedure pursuant to the regime established by the Supreme Court in Hannah v. Plumer.