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Articles 1 - 30 of 41
Full-Text Articles in Law
A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella
A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella
Seattle University Law Review
The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …
Taking The Rule Of Law Seriously, Michele Cotton
Taking The Rule Of Law Seriously, Michele Cotton
University of Massachusetts Law Review
American legal scholars and jurists have given the rule of law their sustained attention, and the international community has treated it as an important measure of societal well-being. But still the rule of law is not taken seriously. For one thing, little effort has been made to craft a definition of the rule of law that is actually useful. And even when legal scholarship does try at empiricism that could illuminate the vitality of our rule of law, it generally starts from the wrong hypotheses and uses the wrong methods. It focuses on how to achieve “access to justice” and …
The Ambiguity And Unfairness Of Dismissing Bad Writing, Benjamin D. Raker
The Ambiguity And Unfairness Of Dismissing Bad Writing, Benjamin D. Raker
Cleveland State Law Review
Courts routinely choose to explicitly dismiss arguments and issues raised by parties, regardless of their merit, based on unexplained determinations that the briefing was bad. This practice, which I call abandonment by poor presentation, is sometimes justified by practicality, by pointing to federal and local rules, by waiver and forfeiture doctrines, and by the norm of party presentation. None of these justifications hold water. I contend that the real reason judges find abandonment by poor presentation is agenda control: judges rely on the practice as a means of retaining control over how they decide cases. This unexplained, poorly justified, and …
Law Library Blog (November 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (November 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
May It Please The Court: A Longitudinal Study Of Judicial Citation To Academic Legal Periodicals, Brian T. Detweiler
May It Please The Court: A Longitudinal Study Of Judicial Citation To Academic Legal Periodicals, Brian T. Detweiler
Law Librarian Journal Articles
Part I of this article examines the proportion of reported opinions from U.S. federal and state courts between 1945 and 2018 that cite at least one academic legal periodical, while Part II applies that data beginning in 1970 to compare the proportion of opinions that cite to the flagship journals of 17 law schools selected and hierarchically categorized based on their U.S. News & World Reports rankings. Representing the most elite schools are Harvard Law Review and Yale Law Journal, the two longest running student-edited journals at arguably the two most prestigious law schools in the United States, followed by …
Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas
Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas
Faculty Scholarship
Seventeen decisions in nine U.S. district courts from 2006 through 2019 have taken a demonstrably misgrounded starting point for Rooker–Feldman analysis. The cases have read language from a 2006 Supreme Court opinion, in which the Court quoted criteria stated by the lower court, as their guideline. But the Court summarily vacated the lower court’s judgment, and it had previously articulated, and has repeated, different criteria for federal courts to follow. The district-court decisions all appear to have reached correct results, but the mistake about criteria should be recognized and avoided as soon as possible before it creates potential mischief. And …
Law Library Blog (September 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (September 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus
Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus
Michigan Journal of Gender & Law
LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, …
Law Library Blog (October 2015): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (October 2015): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
Shedding The Uniform: Beyond A "Uniform System Of Citation" To A More Efficient Fit, Susie Salmon
Shedding The Uniform: Beyond A "Uniform System Of Citation" To A More Efficient Fit, Susie Salmon
Susie Salmon
This article brings a fresh perspective to the ongoing conversation about legal citation format: By highlighting the costs that the fetishization of "perfect" citation format imposes on legal education, the legal profession, and our system of justice, this article encourages us to seize the opportunity that technology presents to implement a more just, sane philosophy of legal citation. Tracing the history of legal citation from its origins in Rome, this article thoroughly debunks any notions of one citation manual's inherent superiority as a citation tool and instead suggests a return to first principles: an approach to citation that ensures accuracy, …
Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra
Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra
Thiago Luís Santos Sombra
With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
Miguel Martínez
The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.
"The Hindrance Of A Law Degree": Justice Kagan On Law And Experience, Laura Krugman Ray
"The Hindrance Of A Law Degree": Justice Kagan On Law And Experience, Laura Krugman Ray
Laura K. Ray
No abstract provided.
The Great Tactician: The Chief Justice, Obamacare, And Walking The Tightrope Of Partisan Politics, Katherine H. Blankenship
The Great Tactician: The Chief Justice, Obamacare, And Walking The Tightrope Of Partisan Politics, Katherine H. Blankenship
Belmont Law Review
This note argues that true judicial restraint is a fictional impossibility. Any practice of judicial restraint is at the very same moment an exercise of judicial activism because a judge cannot approach the law from a truly objective, mechanical position. Every judicial opinion is influenced not only by the political and moral vantage point of the judge, but also the judge’s policy and societal concerns. This thesis is illustrated by a case study of National Federation of Independent Business v. Sebelius, and, specifically, Chief Justice Roberts’s opinion regarding the individual mandate and the Medicaid provision of the Affordable Care Act. …
A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner
A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner
James R Maxeiner
Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …
Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page
Cathren Page
Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …
Behavioral International Law, Tomer Broude
Behavioral International Law, Tomer Broude
Tomer Broude
Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral …
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
Hillary A Henderson
Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …
Metaphor And Analogy: The Sun And Moon Of Legal Persuasion, Linda L. Berger
Metaphor And Analogy: The Sun And Moon Of Legal Persuasion, Linda L. Berger
Linda L. Berger
Drawing on recent studies in social cognition, decision making, and analogical processing, this article will recommend that lawyers turn to novel characterizations and metaphors to solve a particular kind of persuasion problem that is created by the way judges and juries think and decide. According to social cognition researchers, we perceive and interpret new information by following a process of schematic cognition, analogizing the new data we encounter to the knowledge structures embedded in our memories. Decision-making researchers differentiate between intuitive and reflective processes (System 1 and System 2), and they agree that in System 1 decision making, only the …
Legal Writing As Good Writing; Tips From The Trenches, Michael A. Zuckerman, Andrey Spektor
Legal Writing As Good Writing; Tips From The Trenches, Michael A. Zuckerman, Andrey Spektor
Michael A. Zuckerman
No abstract provided.
Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron
Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron
Charles H. Baron
In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …
Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron
Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron
Charles H. Baron
The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's …
Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs’ Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss
Scott A Moss
For a major field, employment discrimination suffers surprisingly low-quality plaintiff’s lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for won/loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses. These findings are puzzling; in a major legal service market, how …
Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960’S And 70’S, Joe Custer
Joe Custer
This paper considers a research suggestion from Cass Sunstein to analyze segregation cases from the 1960's and 1970's and whether three hypothesis he projected in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving various models of judicial ideology, would pertain. My paper considers Sunstein’s three hypotheses in addition to other judicial ideologies to try to empirically determine what was influencing Federal Court of Appeals Judges in regard to Civil Rights issues, specifically school desegregation, in the 1960’s and 1970’s.
Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun
Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun
Daniel M Braun
In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case …
Circumstance And Strategy: Jointly Authored Supreme Court Opinions, Laura Ray
Circumstance And Strategy: Jointly Authored Supreme Court Opinions, Laura Ray
Laura K. Ray
The standard form of authorship for a Supreme Court opinion is a single author who then may be joined by any colleagues who are in agreement. There is, however, a significant and overlooked variant of this form, one used in a small cluster of major cases, most of them landmark decisions, over the past seventy years: the jointly authored opinion. In these cases, there may be as many as nine authors signing an opinion (as in Cooper v. Aaron) or as few as two (as in McConnell v. FEC). All the signatories may be credited with the entire opinion (as …
How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger
How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger
Linda L. Berger
We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing “a sea-change,” family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income. This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …
Opinion Writing And Opinion Readers, Meehan Rasch
Opinion Writing And Opinion Readers, Meehan Rasch
Meehan Rasch
The authors - a federal appellate judge and his law clerks - bring unique perspectives to bear on the topic of opinion writing and opinion readers. The contents of this Article were inspired in large part by the work done by the authors in editing and preparing the second edition of Judge Aldisert's classic book Opinion Writing, which for many years was distributed to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. A broader audience of professional opinion writers and students of the judicial process now has access to Opinion Writing, …
Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger
Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger
Linda L. Berger
No abstract provided.
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.