Law Commons^™

Leveling The Deference Playing Field, Kathryn E. Kovacs

Kathryn E. Kovacs

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …

Electronic Discovery: Sanctioning Spoliation With An Adverse Inference Instruction, Robert A. Weninger

Robert A Weninger

This article discusses the spoliation of ESI (electronically stored evidence) in a completely non-technical way. It focuses on the law governing sanctions and not on computer technology.

Professor Richard L. Marcus, the Special Reporter to the Civil Rules Advisory Committee and a primary drafter of the 2006 amendments addressing the discovery of ESI, reviewed my article and was enthusiastic about it. The article is particularly timely because the Advisory Committee is presently considering whether to propose further amendments to address problems created by the disparate positions taken by federal courts on issues concerning sanctions for spoliation.

Courts divide over the …

Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson

Matthew J. Wilson

With globalization and the proliferation of international commercial interaction, U.S. courts commonly encounter issues governed by the laws of other sovereigns. These encounters arise by virtue of private agreements or choice-of-law rules covering contractual relationships, cross-border conduct, tortuous acts, employment matters, intellectual property rights, and various other legal foundations. Because the substantive law applied in an international lawsuit can be outcome-determinative, it is important to accurately ascertain and determine the relevant law. In fact, the proper functioning of private international law in a domestic system is based on the appropriate application of law.

U.S. federal and state courts are presumed …

Fantasyscotus: Crowdsourcing A Prediction Market For The Supreme Court, Josh Blackman, Adam Aft, Corey Carpenter

Josh Blackman

Every year the Supreme Court of the United States captivates the minds and curiosity of millions of Americans - yet the inner-workings of the Court are not fully transparent. The Court, without explanation, only decides the cases it wishes. They deliberate and assign authorship in private. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery. Sometimes the outcome falls along predictable lines; other times the outcome …

“No Fishing Poles Allowed At The Office,” And Other Suggestions On How To Limit “Fishing Expeditions” To An Outdoor Weekend Activity And Away From The Realm Of E-Discovery, Joanna K. Slusarz

Joanna Slusarz

Early settlement is usually encouraged by the courts and welcomed by most parties involved in a lawsuit. However, it may not always be the most favorable result. This idiosyncrasy arises most when the costs of continuing litigation and adjudication on the merits outweigh those of early settlement. On the other hand, early settlement raises the risk of “encourag[ing] additional, low merit cases that might not otherwise have been filed had the company chosen to litigate existing lawsuits.”

The phenomenon of electronic discovery (“e-discovery”) has exponentially increased the occurrence of the latter result. As a result, defendants, particularly large corporations with …

Making Sense Of Twombly, Edward D. Cavanagh

Edward D. Cavanagh

Abstract

In May 2007, the Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Twombly has triggered an avalanche of motions to dismiss, which, in turn, have generated thousands of judicial opinions, some of them knee-jerk reactions, other more thoughtful. It also has generated a plethora of academic commentary, much of it shrill and negative.

As the fourth anniversary of the Twombly decision approaches, the time for venting is over. Twombly is the law of the land; and the Supreme Court, having affirmed that decision in Iqbal, is not likely to shift …

Restoring The Presumption Of Innocence, Shima Baradaran

Shima Baradaran

The most commonly repeated adage in U.S. criminal justice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption’s diminution are also troubling as the number of defendants held pretrial has steadily increased such that the majority …

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …

After The Flood: The Legacy Of The "Surge" Of Federal Immigration Appeals, Stacy Caplow

Stacy Caplow

For many years, the big news in United States Courts of Appeal was the skyrocketing immigration caseload. For Courts that traditionally had busy immigration dockets, the effect was tsunamic. One of those Circuits, the Second, instituted a nonargument calendar that, over the past five years, has enabled the Court to regain some control over its swollen docket. While this administrative strategy has rescued the Court from drowning, the flow of cases continues, somewhat abated, but with enduring force. The so-called surge had unanticipated consequences extending far beyond court management changes. As a result of their increased exposure to immigration cases …

Case-By-Case Adjudication And The Path Of The Law, Anthony Niblett

Anthony Niblett

How can a centrist president or governor best influence law through the appointment of judges? Imagine that there are two sitting judges and one of the positions becomes vacant. The other, veteran judge is on the extreme right, from the perspective of the executive, and the executive prefers centrist outcomes. Should the executive appoint a centrist or, instead, appoint a left-wing extremist who might offset the sitting, right-wing judge? Conventional wisdom holds that judges counteract, or balance, one another; that is, a left-wing appointment carries the best hope offsetting the existing, right-wing judge. Following this intuition, a moderate appointment would …

Rules, Standards, And The Attorney-Client Privilege: When Is The Privilege At-Issue In The Discovery Rule And Other Contexts?, Kenneth J. Duvall

Kenneth J Duvall

Striking the right balance between a robust attorney-client privilege and a judicial system that maximizes access to the best evidence has always been difficult. In recent decades, the privilege battles have in large part been waged over one particular exception to the privilege: the “at-issue” carve-out. Under this exception, the holders of the privilege waive it when they place otherwise privileged communications at issue in the litigation not through outright consent but instead through their conduct. The troubling question has therefore been: what actions suffice to place communications at issue? Privilege defenders consider confidential communications to be at issue only …

No More Free Easements: Judicial Takings For Private Necessity, John Martinez

John Martinez

In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 130 S.Ct. 2592 (2010), the United States Supreme Court was one vote short of recognizing "judicial takings" as viable federal constitutional claims. If such claims become available, then we must identify with precision those circumstances in which judicial takings claims should apply. The full panoply of remedies--forced condemnation, injunction, and interim damages--must be considered. This article begins the discussion with what perhaps are the easy cases, in which governmental judicial conduct imposes a permanent physical occupation on private land based solely on the private necessity of the benefitted …

Philadelphia Lawyers: Policing The Law In Pennsylvania, Brian K. Pinaire, Milton Heumann, Christian Scarlett

Brian K. Pinaire

Unlike other professions within the Commonwealth, Pennsylvania attorneys “police” themselves, meaning that ethical infractions and ramifications of criminal convictions are addressed not by the government, but rather by disciplinary entities within the profession. Recent socio-legal and social science research has addressed the various statutory “collateral consequences” that attach to criminal convictions, but we know comparatively little about consequential discipline instituted outside the purview of the state. Based on an examination of 419 disciplinary dispositions from 2005-2009, as well as interviews with elites, this study provides the first-ever examination of the process and legal-political implications of peer-policing of the law in …

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …

Unconscious Bias In Legal Interpretation, Anup Malani, Ward Farnsowrth, Dustin Guzior

Anup Malani

What role do policy preferences play when a judge or any other reader decides what a statute or other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith—a claim that the judge or other decision-maker isn’t really earnest in trying to separate preference from judgment. This does not advance the discussion, and …

Justice Stevens, Religion, And Civil Society, Gregory P. Magarian

Gregory P. Magarian

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his 35 years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he flatly opposed exempting religious believers from laws that interfered with their religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with disdain for religion. In this article, Professor …

The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions -- For The Law And For The Litigants, Scott A. Moss

Scott A Moss

Each of the Supreme Court’s high school student speech cases reflected the social angst of its era. In 1965’s Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam war. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District v. Fraser and Hazelwood School District v. Kuhlmeier allowed censoring of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the 2000s rise of reality television and online self-exposure: …

The Vanishing Indian Returns, Kathryn Fort

Kathryn Fort

As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court's cobbled …

Making Sense Of Twombly, Edward D. Cavanagh

Edward D. Cavanagh

In May 2007, the Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Twombly has triggered an avalanche of motions to dismiss, which, in turn, have generated thousands of judicial opinions, some of them knee-jerk reactions, other more thoughtful. It also has generated a plethora of academic commentary, much of it shrill and negative. As the fourth anniversary of the Twombly decision approaches, the time for venting is over. Twombly is the law of the land; and the Supreme Court, having affirmed that decision in Iqbal, is not likely to shift course. …

Secondary Liability For Securities Fraud: Gatekeepers In State Court, Jennifer J. Johnson

Jennifer J Johnson

This paper discusses gatekeeper liability under state securities laws for professionals and other secondary participants in securities transactions. The recent economic meltdown exposed numerous Ponzi schemes from Madoff to Medical Capital that were no longer able to masquerade as profitable enterprises. When promoters of fraudulent ventures are unable to provide restitution to their victims, plaintiffs seek out other sources of repayment including professionals and other secondary participants in the transactions that precipitated their losses. Although most scholars agree that professionals can perform an important role in deterring securities fraud, scholarly opinions vary widely on the appropriate liability regime, if any, …

Standing In The Age Of Citizen Revolt: Legislative Standing, Direct Democracy, And The Supreme Court, Frank M. Dickerson Iii, Reid M. Bolton

Frank M. Dickerson III

One of the most interesting questions raised by California’s Proposition 8 is the question of standing for ballot-initiative supporters in defensive litigation. This Article addresses the question raised in the Proposition 8 case and the issue of standing for ballot initiative supporters to defend their initiative on appeal more generally. It suggests that such standing for ballot-initiative sponsors is consistent with both prior Supreme Court precedent and the Constitutional and prudential concerns underlying the doctrine of standing.

Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning, Andrew J. Morris

Andrew J Morris

Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning

Although scholars have discussed legal pragmatism for several decades, the literature does not contain a systematic analysis of the characteristic elements of pragmatic decisionmaking. This article tries to add that analytical perspective. It attempts to make sense of the extensive literature by identifying specific characteristics of pragmatic reasoning, then conducting a methodical comparison of distinctively pragmatic reasoning to more principled reasoning. I identify principled reasoning with legal form: as reasoning that gives some normative force to formal legal reasons. The criteria on which I compare the two modes …

"Drug Treatment Courts In The 21st Century: Improving The Criminal Justice System's Response To Drug Offenses", Peggy Fulton Hora, Theodore Stalcup

Peggy Hora

The article demonstrates that the traditional criminal justice system’s response to drug offenses – arrest, trial and incarceration and re-arrest, re-trial and re-incarceration of 70% of offenders within three years – wastes vast economic and human resources. Drug treatment courts, on the other hand, have proven to be strong alternatives to incarceration as well as effective mechanisms for dealing with America’s drug problem. The article addresses criticism of drug treatment courts, including resistance to the disease model of addiction, disputes over efficacy of treatment, legal issues related to purported coercion of treatment, concern over unbridled judicial discretion and ethical issues …

Reinterpreting The Role Of Special Trial Judges Through Standards Of Review, Christopher M. Pietruszkiewicz

Christopher M. Pietruszkiewicz

Standards of review define the scope of power between judicial actors by dictating the level of discretion given to an original trier of fact. In the articulation of a standard of review, language is an insufficient source for defining a standard because of the inability of specific terminology to produce objective certainty. It is because words are not susceptible to objective certainty that the language used in defining a standard of review could be considered irrelevant and indistinguishable.

While the words may be indistinguishable, it is the uniformity of terms that promotes consistency in application. It may be impossible to …