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Articles 1 - 3 of 3
Full-Text Articles in Law
How To Fix Legal Scholarmush, Adam Kolber
How To Fix Legal Scholarmush, Adam Kolber
Indiana Law Journal
Legal scholars often fail to distinguish descriptive claims about what the law is from normative claims about what it ought to be. The distinction couldn’t be more important, yet scholars frequently mix it up, leading them to mistake legal authority for moral authority, treat current law as a justification for itself, and generally use rhetorical strategies more appropriate for legal practice than scholarship. As a result, scholars sometimes talk past each other, generating not scholarship but “scholarmush.”
In recent years, legal scholarship has been criticized as too theoretical. When it comes to normative scholarship, however, the criticism is off the …
Fee-Shifting Statutes And Compensation For Risk, Maureen Carroll
Fee-Shifting Statutes And Compensation For Risk, Maureen Carroll
Indiana Law Journal
A law firm that enters into a contingency arrangement provides the client with more than just its attorneys’ labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state feeshifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation funding. …
Flipping The Script On Brady, Ion Meyn
Flipping The Script On Brady, Ion Meyn
Indiana Law Journal
Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this
reason, is understood to burden the prosecutor. This Article asks whether Brady also
benefits the prosecutor, and if so, how and to what extent does it accomplish this?
This Article first considers Brady’s structural impact—how the case influenced
broader dynamics of litigation. Before Brady, legislative reform transformed civil
and criminal litigation by providing pretrial information to civil defendants but not
to criminal defendants. Did this disparate treatment comport with due process?
Brady arguably answered this question by brokering a compromise: in exchange for
imposing minor obligations on …