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2018

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Articles 14401 - 14430 of 14471

Full-Text Articles in Law

The Rise And Fall Of Fear Of Abuse In Consumer Bankruptcy: Most Recent Comparative Evidence From Europe And Beyond, Jason J. Kilborn Dec 2017

The Rise And Fall Of Fear Of Abuse In Consumer Bankruptcy: Most Recent Comparative Evidence From Europe And Beyond, Jason J. Kilborn

Jason Kilborn

Prepared for a symposium celebrating the groundbreaking career of Jay Westbrook, this paper examines recent evidence of fear of abuse of the benefits of consumer bankruptcy and the gradual abatement of that fear in modern consumer insolvency law reform.  It marshals evidence of  a recent and accelerating retreat in both the judicial discretion that Westbrook attributed to lawmakers’ fear of abuse, and other more direct techniques to avoid abusive recourse to consumer discharge.  Fear of abuse appears to be diminishing with accumulated experience, as indicated by recent liberalizing reforms in Denmark, Slovakia, Poland, Austria, Russia, and Romania.  At the same …

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Twenty-Five Ways To Say No, Jonathan K. Van Patten Dec 2017

Twenty-Five Ways To Say No, Jonathan K. Van Patten

Jonathan Van Patten

No abstract provided.

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Should The Rules Committees Have An Amicus Role?, Scott Dodson Dec 2017

Should The Rules Committees Have An Amicus Role?, Scott Dodson

Scott Dodson

Despite its formal status as promulgator of federal-court rules of practice and procedure, the Supreme Court is a suboptimal rule interpreter, as recent groundbreaking but flawed rules decisions illustrate. Scholars have proposed abstention mechanisms to constrain the Court in certain rule-interpretation contexts, but these mechanisms disable the Court from performing its core adjudicatory functions of dispute resolution and law interpretation. This article urges a different solution: bring the rulemakers to the Court. It argues that the Rules Committees—those bodies primarily responsible for studying the rules and drafting rule amendments—should take up a modest amicus practice in rules cases to offer …

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Personal Jurisdiction And Aliens, Scott Dodson, William Dodge Dec 2017

Personal Jurisdiction And Aliens, Scott Dodson, William Dodge

Scott Dodson

The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: how should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol-Myers Squibb v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of alienage personal jurisdiction. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole …

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Defending Jurisdiction, Scott Dodson Dec 2017

Defending Jurisdiction, Scott Dodson

Scott Dodson

This response to a critic of my Georgetown Law Journal article "Jurisdiction and Its Effects" defends my framework for jurisdiction.

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Personal Jurisdiction And Aggregation, Scott Dodson Dec 2017

Personal Jurisdiction And Aggregation, Scott Dodson

Scott Dodson

Aggregation—the ability to join parties or claims in a federal civil lawsuit—has usually been governed by subject-matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation because of its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn to personal jurisdiction—especially though modern cases narrowing general jurisdiction and last Term’s blockbuster case Bristol-Myers Squibb—threatens the salutary benefits of aggregation across a number of areas, including simple …

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The Property Question.Pdf, William A. Edmundson Dec 2017

The Property Question.Pdf, William A. Edmundson

William A. Edmundson

for presentation at the Property and Political Economy Conference at the Smith Institute,
Chapman University, April 20-21, 2018
The “property question” is the constitutional question whether a society’s basic resources are
to be publicly or privately owned; that is, whether these basic resources are to be available to
private owners, perhaps subject to tax and regulation, or whether instead they are to be
retained in joint public ownership, and managed by democratic processes. James Madison’s
approach represents a case in which prior holdings are taken for granted, and the property
question itself is kept off of the political agenda. By …

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Torgerson's Twilight: The Antidiscrimination Jurisprudence Of Judge Diana E. Murphy, David Schraub Dec 2017

Torgerson's Twilight: The Antidiscrimination Jurisprudence Of Judge Diana E. Murphy, David Schraub

David Schraub

An essay for the Minnesota Law Review's symposium honoring the memory of Judge Diana E. Murphy, United States Court of Appeals for the Eighth Circuit.

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Whether Or Not Special Expertise Is Needed: Anti-Intellectualism, The Supreme Court, And The Legitimacy Of Law, Sean M. Kammer Dec 2017

Whether Or Not Special Expertise Is Needed: Anti-Intellectualism, The Supreme Court, And The Legitimacy Of Law, Sean M. Kammer

Sean Kammer

No abstract provided.

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From Reparations To Dignity Restoration: The Story Of The Popela Community., Bernadette Atuahene, Sanele Sibanda Dec 2017

From Reparations To Dignity Restoration: The Story Of The Popela Community., Bernadette Atuahene, Sanele Sibanda

Bernadette Atuahene

In certain circumstances property takings are part of a larger strategy to further subjugate a certain group within the polity by denying their humanity or their capacity to reason. These takings involve more than the confiscation of property; they also involve the deprivation of dignity. In her book, We want what’s ours: Learning from South Africa’s land restitution program, Atuahene has called these dignity takings. The Popela people are a resource-poor, but culturally-rich African community from South Africa’s Limpopo region that the colonial and apartheid regimes subjected to dignity takings. The post-apartheid state was interested not only in providing compensation …

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English Justice For An American Company?, Christopher French Dec 2017

English Justice For An American Company?, Christopher French

Christopher C. French

This Essay addresses the Halliburton Co. v. Chubb Bermuda Insurance Ltd. case, which is pending before England's Supreme Court. The issue before the Court is whether it is appropriate for the "neutral" arbitrator, who has a history of serving as a party-appointed arbitrator for Chubb, to serve as the "neutral" arbitrator in the matter while simultaneously serving as a party-appointed arbitrator for Chubb in another related arbitration proceeding involving the same insurance policy form and the same underlying Deepwater Horizon incident. The lower courts declined to remove the arbitrator. The Essay also addresses the question of whether London arbitration proceedings …

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Engineering Standards In Highway Design Litigation, Michael Lewyn Dec 2017

Engineering Standards In Highway Design Litigation, Michael Lewyn

Michael E Lewyn

Chapter in "Engineering Standards for Forensic Application." (coauthored) Focuses on soveriegn immunity for highway designers.

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What's In A Denial? Bayesian Analysis Shows That Kavanaugh Lied About Denials Under Oath And Trump Was Foolish To Believe Mbs, Aaron Edlin Dec 2017

What's In A Denial? Bayesian Analysis Shows That Kavanaugh Lied About Denials Under Oath And Trump Was Foolish To Believe Mbs, Aaron Edlin

Aaron Edlin

Trump has been putting a lot of stock in denials: MBS's, Putin's, and Kavanaugh's. We argue, based on Bayes, this is foolish. Kavanaugh in turn put stock in a different kind of denial, claiming that people who Ford said were at a gathering long ago denied being there; but they actually said they didn't recall. Is this nit-picking or did Kavanaugh lie under oath? Bayesian analysis shows the two possible statements are very different suggesting that Kavanaugh lied, assuming that we credit him with understanding a little about how to interpret evidence.

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Business Methods, Technology, And Discrimination, Daniel Harris Brean Dec 2017

Business Methods, Technology, And Discrimination, Daniel Harris Brean

Daniel Harris Brean

The United States is obligated under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) treaty to make patent rights available and enjoyable without discrimination as to the “field of technology” of the invention.  No specific areas of technology may be singled out for unjustified special treatment.  Yet the United States is doing just that with respect to computer-implemented business methods.  Doctrinally, such methods are subject to an especially high bar for patentability.  Statutorily, patents on such methods may be challenged in invalidity proceedings that are exclusively available for so-called “covered business method patents.” The law seems to reflect a skepticism …

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Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark Dec 2017

Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark

Daniel Harris Brean

Bad actors in patent litigation can face serious consequences.  Infringers who are found to “willfully” infringe may be subject to trebled damages. Patentees who assert weak claims in bad faith can be ordered to pay the defendant’s attorneys’ fees.  These remedies are of such importance to the patent system today that the Supreme Court reinvigorated both of the respective doctrines in back-to-back landmark decisions in 2014 (Octane Fitness) and 2016 (Halo Electronics). 
Those decisions have helped district courts more effectively punish and deter misconduct. But the Supreme Court neglected to address a critical part of these …

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Dispensing (With) Electronic Wills, Thomas E. Simmons Dec 2017

Dispensing (With) Electronic Wills, Thomas E. Simmons

Thomas E. Simmons

No abstract provided.

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Rethinking The Nonprecedential Opinion, Elizabeth Beske Dec 2017

Rethinking The Nonprecedential Opinion, Elizabeth Beske

Elizabeth Earle Beske

Nearly 90 percent of the opinions issued by the federal courts of appeal are unpublished and lack precedential effect, and where these cases lay out new legal rules, this phenomenon cannot be reconciled with the Supreme Court’s settled retroactivity jurisprudence. Harper v. Virginia Board of Taxation and Griffith v. Kentucky, both moored in Article III, require that any case’s new rule apply not only to future litigants but also to those whose cases are pending. A nonprecedential case by definition has no application beyond its litigants. This raises no problem where a case adds nothing new, as other litigants already …

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Dedication To Professor Charles M. Thatcher, Jonathan K. Van Patten Dec 2017

Dedication To Professor Charles M. Thatcher, Jonathan K. Van Patten

Jonathan Van Patten

No abstract provided.

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Beyond The Walls: The Importance Of Community Contexts In Immigration Detention, Emily Ryo, Ian Peacock Dec 2017

Beyond The Walls: The Importance Of Community Contexts In Immigration Detention, Emily Ryo, Ian Peacock

Emily Ryo

Immigration detention facilities are commonly assumed to be insulated microcosms that maintain their existence separate and apart from the surrounding communities.  Yet, detention facilities are not hermetically sealed institutions.  Drawing on unique and comprehensive data pertaining to all individuals held in immigration detention in the United States in fiscal year 2015, this study explores for the first time the importance of community contexts in immigration detention.  Our multivariate analyses show a significant relationship between the characteristics of communities in which the facilities are located and detention length for individuals who were released pending the completion of their removal proceedings.  Specifically, …

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Predicting Danger In Immigration Courts, Emily Ryo Dec 2017

Predicting Danger In Immigration Courts, Emily Ryo

Emily Ryo

Every year, the US government detains thousands of noncitizens in removal proceedings on the basis that they might pose a threat to public safety if released during the pendency of their removal proceedings. Using original audio recording data on immigration bond hearings, this study examines immigration judges’ determinations regarding which noncitizens pose a danger to the community. My multivariate analysis that controls for a variety of detainee background characteristics and criminal conviction-related measures produced three main findings. First, I find that Central Americans are more likely to be deemed dangerous than non-Central Americans. Second, I find that detainees with attorneys …

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Representing Immigrants: The Role Of Lawyers In Immigration Bond Hearings, Emily Ryo Dec 2017

Representing Immigrants: The Role Of Lawyers In Immigration Bond Hearings, Emily Ryo

Emily Ryo

Do immigration lawyers matter, and if so, how? Drawing on a rich source of audio recording data, this study addresses these questions in the context of U.S. immigration bond hearings—a critical stage in the removal process for noncitizens who have been apprehended by U.S. immigration officials. First, my regression analysis using a matched sample of legally represented and unrepresented detainees shows that represented detainees have significantly higher odds of being granted bond. Second, I explore whether legal representation affects judicial efficiency and find no evidence of such a relationship. Third, I examine procedural and substantive differences between represented and unrepresented …

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Here Comes The Judge: A Model For Judicial Oversight And Regulation Of The Brady Disclosure Duty, Cynthia E. Jones Dec 2017

Here Comes The Judge: A Model For Judicial Oversight And Regulation Of The Brady Disclosure Duty, Cynthia E. Jones

Cynthia E. Jones

Under the current state of the law, there is no mechanism in place to ensure that a criminal defendant receives information in the exclusive possession of the government that negates guilt, undermines the strength of the government's case, or reduces the sentence that could be imposed. Whenever a prosecutor wants to do so, she can suppress this favorable information and prevent the court and the defense from ever learning of its existence. Without oversight and with very little accountability, prosecutors have been vested with the power to determine whether and when to disclose favorable evidence to the defense. Although many …

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Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted.  This change is significant.  While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.
 
Beyond offering a careful reading of Birchfield, this Article has two goals. …

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Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making?  One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines.  Though plausible today, this argument will wear thin as technology evolves.

Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making.  Specifically, we propose an account of democratic equality as ‘role-reversibility.’  In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

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Brief Of Amici Curiae Criminal Procedure Professors In Gamble V. United States, No. 17-646, Stephen E. Henderson, George C. Thomas Iii, Michael J.Z. Mannheimer, Kiel Brennan-Marquez Dec 2017

Brief Of Amici Curiae Criminal Procedure Professors In Gamble V. United States, No. 17-646, Stephen E. Henderson, George C. Thomas Iii, Michael J.Z. Mannheimer, Kiel Brennan-Marquez

Stephen E Henderson

The Fifth Amendment guarantees that, “No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb.” Yet that is precisely what happened to Terance Martez Gamble. The State of Alabama prosecuted and convicted him for being a felon in possession of a firearm. Subsequently, the United States initiated a second prosecution for what all parties have assumed is definitionally the same offense, yielding a second conviction. That second, duplicative prosecution and conviction violated the letter and spirit of the Double Jeopardy Clause.

As a matter of the Framer’s understanding, as a matter …

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A Few Criminal Justice Big Data Rules, Stephen E. Henderson Dec 2017

A Few Criminal Justice Big Data Rules, Stephen E. Henderson

Stephen E Henderson

As with most new things, the big data revolution in criminal justice has historic antecedents—indeed, a 1965 Presidential Commission called for some of the same data analysis that police departments and courts are today developing and implementing.  But there is no doubt we are on the precipice of a criminal justice data revolution, and it is a good time to take stock and to begin developing guidelines so that, as much as possible, criminal justice systems might reap the benefits and avoid the pitfalls of this newly data-centric world.  In that spirit, I propose ten high-level rules to guide criminal …

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Vulnerability, Canadian Disaster Law And 'The Beast', Jocelyn Stacey Assistant Professor Dec 2017

Vulnerability, Canadian Disaster Law And 'The Beast', Jocelyn Stacey Assistant Professor

Jocelyn Stacey

This article argues that Canadian law plays a central role in creating and ameliorating conditions of disaster vulnerability. Using the circumstances surrounding the 2016 Fort McMurray wildfire for context, the article identifies and assesses the shared, structural features of Canada’s emergency management laws and their application to “natural” disasters. This article argues that these laws lag behind foundational social science research on disasters. It argues that Canadian emergency management laws fail to incorporate a multi-faceted vulnerability perspective, which leaves communities unnecessarily susceptible to disaster harm. This article offers some preliminary suggestions on how Canadian disaster law can begin to integrate …

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Beyond Greed Is Good: Pop Culture In The Business Law Classroom, Felice Batlan, Joshua Bass Dec 2017

Beyond Greed Is Good: Pop Culture In The Business Law Classroom, Felice Batlan, Joshua Bass

Felice J Batlan

No abstract provided.

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Creating A Tax Space For Social Enterprise, Lloyd Hitoshi Mayer Dec 2017

Creating A Tax Space For Social Enterprise, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

While still relatively few in number compared to traditional nonprofit and for-profit organizations, the rise of social enterprises represents a possible disruption of not only existing models of doing business but also areas of law that in many respects have seen little fundamental change for decades. One such area is domestic tax law, where social enterprises currently find themselves subject to the rules of for-profit activities and entities. Here, both scholars and policymakers are beginning to ask whether it is either necessary or desirable to modify existing tax provisions to better accommodate social enterprise: that is, whether to create a …

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In Search Of The Final Head Ball: The Case For Eliminating Heading From Soccer,, N. Jeremi Duru Dec 2017

In Search Of The Final Head Ball: The Case For Eliminating Heading From Soccer,, N. Jeremi Duru

N. Jeremi Duru

Soccer is unquestionably the world's most popular sport. Two hundred and eleven countries have national soccer associations,  hundreds of millions of people across the globe play recreationally,  and Federation Internationale de Football Association's ("FIFA") quadrennial World Cup soccer tournament is unchallenged as the highest profile4 and highest grossing sporting competition on Earth. Notwithstanding its popularity, however, soccer sits at a troubling crossroads as the sport's governing bodies grapple with the impact that the risk of brain injury is having on the game. Soccer is, of course, not alone in this regard. The risk of brain injury exists  …

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