Law Commons^™

The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli

James Ianelli

The Constitution’s eligibility qualifications in Articles I and II have drawn increased scrutiny in recent national elections. No scholarship to date, however, has examined why the Framers omitted any comparable qualifications from Article III. This paper presents the question of what made the judiciary unique relative to the other branches such that any nominated and confirmed candidate could sit on the federal bench.

The answer to this question sheds new light on the wisdom of eligibility qualifications in Articles I and II. Although no direct historical record details the basis for the omission, a number of factors appear relevant. Without …

An Escape Route From The Medellin Maze, Anthony S. Winer

Anthony S. Winer

The recent Supreme Court decision in Medellín v. Texas created a veritable “maze” for foreign prisoners in the U.S., and their countries of nationality, who might wish to enforce their rights under the Vienna Convention on Consular Relations (the “VCCR”). This decision, and other Supreme Court and lower federal court opinions, have erected “dead ends” for prisoners and their countries of nationality that block their “escape” from this maze. These opinions, among other implications, cast substantial doubt on the availability of judicial relief for individuals under the VCCR, foreclose executive enforcement, and exclude the possibility of corrective injunctions for many …

Protect The Children: Challenges That Result In, And Consequences Resulting From, Inconsistent Prosecution Of Child Pornography Cases In A Technological World, Francis S. Monterosso

Francis S Monterosso

This Note untangles courts’ problems with the prosecution of child pornography defendants and aims to redirect attention to the social impact associated with these crimes. First, Part I provides an introduction to the Note and discusses the background of the Child Pornography Prevention Act. Secondly, Part II sets forth the evolution of the CPPA and its goals and shortcomings. Next, Part III further explains the development of child pornography prosecutions in the United States through two cases that illustrate the government’s desire to prosecute child pornography defendants.

Moreover, Part IV explains the difficulties courts have encountered in the prosecution of …

The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez

Armando G. Hernandez

A simple truism we all learned in our childhood was that the square pegs did not fit into the circular shaped cut-outs. Greek philosophers often struggled with this very same conundrum of squaring the circle. In 1996, the Supreme Court decided Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The case required application of the Court's Erie jurisprudence. Many commentators hailed the case as the ideal moment to clarify the Court's esoteric body of law. However, writing for a six vote majority, Justice Ginsburg held that state law (the square) and federal law (the circle) could be accommodated. …

An Overview Of Tolls To Statutes Of Limitations On Account Of War: Are They Current And Relevant In The Post-September 11th Era?, Hon. Mark Dillon

Hon. Mark C. Dillon

The devastation of the attacks that occurred at the World Trade Center on September 11, 2001 included costly disruption to the operation of courts in the City and State of New York. A court facility at Five World Trade Center was destroyed. Attorneys were among the 2,752 persons killed in the event. Law offices were destroyed. Key litigation witnesses and documents were lost forever. Thousands of attorneys were unable to access their work for days. State courts in Manhattan did not reopen for business until September 17, 2001. Amidst the turmoil and confusion, there was a defined set of potential …

Childhood Immunizations: Paralysis On Parental Rights, Demand On Taxpayer Dollars, Rena L. Holmes Jones

Rena L Holmes Jones

The rise in the incidence of Autism Spectrum Disorder (ASD) is one of the most serious public health issues in recent years. The current statistics suggests that roughly one child out of every 150 has autism or an autistic-like disorder, compared to earlier estimates placing the rate at four or five children out of every 10,000. Autism is a condition that typically reveals itself within the first 0-4 years of life. The wide continuum of associated cognitive and neurobehavioral disorders have three core-defining features: impairments in socialization, impairments in verbal and nonverbal communication, and restricted and repetitive patterns of behaviors. …

A Free Speech Right To Impugn Judicial Integrity In Court Proceedings, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

Administrative Law In The Roberts Court: The First Four Years, Robin K. Craig

Robin K. Craig

Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law.

This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access …

Structure And Precedent, Jeffrey C. Dobbins

Jeffrey C. Dobbins

The standard model of vertical precedent is part of the deep structure of our legal system. The rules governing that model are largely intuitive, often taught only in passing at law school, and rarely addressed by positive law. While the application of these rules of precedent can be difficult in practice, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. A Ninth Circuit opinion, for instance, is binding on district courts within the Ninth Circuit and on subsequent Ninth Circuit panels; it is not binding on Second Circuit panels. …

Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli

Kenneth J. Melilli

In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …

Judging By The Numbers: An Empirical Study Of The Power Of Story, Kenneth D. Chestek

Kenneth D. Chestek

The recent debate about whether “empathy” is a desirable trait in Supreme Court Justices begs a more fundamental question: are appellate court judges in fact persuaded by appeals to pathos? This article attempts to answer that question by reporting the results of an empirical study the author conducted that investigates whether narrative reasoning, or “stories,” are persuasive to appellate judges. It is the first rigorous study to ever confront this issue directly. The article first describes how the author wrote four test briefs, two on each side of a hypothetical lawsuit. One brief on each side was written as a …

Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli

Kenneth J. Melilli

In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …

The Rights Question, Bruce A. Antkowiak

Bruce A Antkowiak

The problem this article addresses will be well known to anyone who has taught or taken a course in Constitutional Law in the last three decades. When the subject turns to the related issues of selective incorporation, substantive due process and the proper interpretation of the Ninth Amendment, teachers of Constitutional Law cringe at the prospect of trying to explain sensibly what the Supreme Court itself has come to acknowledge is a most baffling conundrum: what are “rights,” where do they come from, are there more to be identified in the Constitutional universe, who is equipped to find them, and …

Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli

Kenneth J. Melilli

In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …

Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks

Chris Jenks

On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such …

Tailoring Deference To Variety With A Wink And A Nod To Chevron: The Roberts Court And The Amorphous Judicial Framework For Review Of Agency Interpretations Of Law, J. Lyn Entrikin Goering

J. Lyn Entrikin Goering

In the 25 years since the Court issued its venerable opinion in Chevron, the Supreme Court has all but disregarded the judicial review provisions of the Administrative Procedure Act (APA), first enacted in 1946. From 1984 to 2000, Chevron took center stage as the most-cited opinion in administrative law. Beginning in 2000, the Rehnquist Court issued a series of decisions limiting the reach of Chevron. At the same time, the Court revived common law deference frameworks that predate the APA. Yet the Rehnquist Court failed to fully reconcile Chevron with its previous common law deference doctrines and with the APA’s …

Untangling The Web Spun By Title Vii's Referral & Deferral Scheme, Lisa D. Taylor

Lisa D Taylor

Title VII's dual enforcement scheme creates knotty preclusion and subject-matter jurisdiction issues. The statute requires that claims of employment discrimination made in those states or localities with their own administrative enforcement bodies must first be presented locally, and may be pursued in the federal system only after affording the state administrative body time to attempt their resolution. The result of this dual enforcement scheme is that in some cases, a claim comes to federal court after it has already been adjudicated in the state system. Questions then arise as to whether the federal court has jurisdiction to hear the claim …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …

Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman

Frank O. Bowman III

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continues in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …

How Can States Protect Their Policies In Federal Class Actions?, Lucas Watkins

Lucas Watkins

More than any other procedural device, class actions have substantive goals. By allowing negative-value suits and collective punishment for widespread wrongs, class actions allow plaintiffs and defendants to protect rights that would otherwise go unvindicated. States also use class actions to implement industrial and consumer protection policies. Despite their importance to state policy, however, many state class action rules do not survive the transition into the federal court system. Under the Erie doctrine, federal courts apply federal class action rules even when state rules are more permissive and even when the state rules are intended to serve important substantive policies. …

“I’M Dying To Tell You What Happened”: The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Peter Nicolas

In Crawford v. Washington and its progeny, the U.S. Supreme Court has re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote 6 of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This manuscript builds on the dictum set forth in footnote 6 of Crawford, the meaning of which the lower courts are just beginning to explore. In the manuscript, I first demonstrate that the …

The Exxon Valdez Case And Regularizing Punishment, Jeffrey L. Fisher

Jeffrey L Fisher

In this Article, the Author discusses the implications of the Supreme Court's recent decision in Exxon Shipping Co. v. Baker for the Court's ongoing punitive damages jurisprudence, as well as for the Constitution's regulation of punishment more generally. The Exxon decision repeals that, notwithstanding modern rhetoric decrying supposedly "skyrocketing" punitive damages awards, the Court is troubled by the common law system of awarding punitive damages not so much because of the size of awards it allows as because of such awards' perceived unpredictability. From this insight, the Author argues that the Court's concerns about large punitive damage awards are therefore …

The Hidden Mandate: How Federal Rule Of Evidence 502 Will Push Enterprises To Adopting A More Organized Electronic Filing System, Nicholas A. Matlach

Nicholas A Matlach

Inexpensive storage combined with inefficient procedures result in a catacomb of electronic documents that are only raised during litigation. Recently passed Federal Rule of Evidence requires “reasonable steps” to be taken to prevent disclosure. The judicial flexibility of 502 will allow judges to continue a decade long trend of pushing enterprises to either adopt document management systems or risk losing their privileged information to inadvertent waivers.

Where Do Constitutional Modalities Come From? Complexity Theory And The Emergence Of Intradoctrinalism, Jesse R. Merriam

Jesse R Merriam

This article seeks to shed light on one of the most vexing and important problems in constitutional law and theory: how courts interpret the Constitution. Part I of the article begins by recounting the major theories of how courts should interpret the Constitution. Part I then explains why many scholars agree that Philip Bobbitt's modal approach has best addressed this problem. According to this approach, courts and lawyers use six modalities or methods to interpret the Constitution. Part I concludes by pointing out that Bobbitt's framework, though helpful, fails in two respects: it fails to explain where these modalities come …

The Eye Of The Beholder: A Defendant-Reliant Approach To Valuing Injunctive Relief For The Purposes Of The Amount In Controversy Requirement, Jason Schwalm

Jason E Schwalm

This article examines a long standing Circuit court split concerning the valuation of injunctive relief for the purposes of diversity jurisdiction. Specifically, the note argues that the Sixth Circuit, as the last court to weigh in on this argument, should use the experience of the other circuits in creating a defendant-reliant approach to the valuation of injunctive relief. This approach would acknowledge the defendant-focused nature of injunctive relief and in doing so would reject both sides of the Circuit court split.

The Historical Origins Of The Patterns Of Taxpayer Standing, Charlotte Crane

Charlotte Crane

In this article, I explore the pattern, sometimes described as puzzling, according to which the federal courts have sometimes considered the claims of a local taxpayer sufficient to allow a challenge the activities of the taxpaying entity, while rarely finding the claims of a state or federal taxpayer sufficient. I trace this pattern to the doctrines according to which local governments were seen as having taxing powers conditioned upon the ways in which the funds raised are to be spent. Since such doctrines never applied to impose judiciable limits on the taxing powers of either states or the federal government, …

A Matter Of Size: An Analysis Of Court Efficiency Using Hierarchical Linear Modeling, Teresa A. Dalton

Teresa A Dalton

Several studies have examined metrics for tracking court efficiency. One important measure is the overall case length – that is, the total time from case filing to final disposition. We take a new look at the variables by means of Hierarchical Linear Modeling, using data from United States District Courts to determine if any factors are useful in predictive modeling to determine overall case length. We find two variables useful in predicting case length: total number of attorneys filing an appearance in the case and number of authorized judgeships for a given district court. Further, we find a significant interaction …

Litigating Secrets: Comparative Perspectives On The State Secrets Privilege, Sudha Setty

Sudha Setty

The Article considers the history and use of the state secrets privilege in the United States and the ongoing congressional efforts to reform the use of the privilege. Although numerous articles have addressed the application of the state secrets privilege in the United States, this Article breaks new ground by examining the history and use of the privilege in other nations which confront serious national security threats. This Article considers the modern application the privilege in Scotland, England, Israel and India—an analysis which contextualizes both the current use of the U.S. privilege and the efforts at legislative reform. Such comparative …

Sports In The Courts: The Role Of Sports References In Judicial Opinions, Douglas E. Abrams

Douglas E. Abrams

Sports In the Courts: The Role of Sports References in Judicial Opinions by Douglas E. Abrams Abstract In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print …