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2012

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Institution
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Articles 1 - 30 of 139

Full-Text Articles in Law

Art Actually! The Courts And The Imposition Of Taste, Marett Leiboff Dec 2012

Art Actually! The Courts And The Imposition Of Taste, Marett Leiboff

Marett Leiboff

How do we read art, at least in law? The traditional approach of the courts has been to disavow, or at least avoid any discussion on matters of aesthetics or connoisseurship, or more accurately assert such a disavowal. Because whether the courts acknowledge it or not, they actively judge art, even when they say they don't. Judging art by judges, as we will see, is not a particularly edifying spectacle, but is it better for the courts to avoid judging art? In this article, I will explore what happens when the courts grapple with the problem of judging art ...


Recusal, Government Ethics, And Superannuated Constitutional Theory, Keith Swisher Dec 2012

Recusal, Government Ethics, And Superannuated Constitutional Theory, Keith Swisher

Keith Swisher

Something good and something bad happened recently in government and judicial ethics; no one has truly noticed yet for some reason. The Supreme Court all but banned First Amendment analysis as applied to recusal laws, both legislative and judicial. That, actually, is the good thing, or so I argue. The bad thing is that the Court, in doing so, used a geriatric approach to constitutional theory. The approach is unduly reverent of anything “old;” and old is not limited to the practices of the Founding Fathers, but also includes “traditional” practices within some undefined range. But what is old is ...


Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley Dec 2012

Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley

Faculty Scholarship

The determination that sexual harassment constituted “discrimination based on sex” under Title VII was first made by the lower federal courts, not Congress. Drawing from the literature on policy diffusion, this article examines the adoption of hostile work environment standards across the U.S. Courts of Appeals in the absence of controlling Supreme Court precedent. The results bolster recent findings about the influence of female judges on their male colleagues and suggest that in addition to siding with female plaintiffs, female judges also helped to shape legal rules that promoted gender equality in the workplace.


Talking Chalk: Defacing The First Amendmen In The Public Forum, Marie A. Failinger Dec 2012

Talking Chalk: Defacing The First Amendmen In The Public Forum, Marie A. Failinger

West Virginia Law Review

No abstract provided.


Rejection Of Nonresidential Leases Of Real Property In Bankruptcy: What Happens To The Mortgagee's Security Interest? , William E. Winfield Nov 2012

Rejection Of Nonresidential Leases Of Real Property In Bankruptcy: What Happens To The Mortgagee's Security Interest? , William E. Winfield

Pepperdine Law Review

No abstract provided.


Unconstitutional Animus, Susannah W. Pollvogt Nov 2012

Unconstitutional Animus, Susannah W. Pollvogt

Susannah W Pollvogt

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively what exactly animus is, or what counts as evidence of animus in any given case. The United States Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while scholars have discussed animus in terms of moral philosophy, no one has attempted to articulate a unified theory of animus as ...


Lifting The Fog: Ending Felony Disenfranchisement In Virginia, Dori Elizabeth Martin Nov 2012

Lifting The Fog: Ending Felony Disenfranchisement In Virginia, Dori Elizabeth Martin

University of Richmond Law Review

No abstract provided.


Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger Oct 2012

Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger

Beau James Brock

The Fourth Amendment must be protected from police excesses. Now, law enforcement is relying upon the most hyper-technical of violations to stop a vehicle. Both attorneys and judges must guard against the temptation that the ends will justify the means, only to find out later we sold out our freedom to the golden calf of drug interdiction.


Dealing With The Problem: Discretion Within The Court System, David Disco, Lisa Greer, Socrates Manoukian Oct 2012

Dealing With The Problem: Discretion Within The Court System, David Disco, Lisa Greer, Socrates Manoukian

Pepperdine Law Review

No abstract provided.


The Appeals Process, Thomas M. Reavley, Thomas E. Baker, William M. Richman Oct 2012

The Appeals Process, Thomas M. Reavley, Thomas E. Baker, William M. Richman

Pepperdine Law Review

No abstract provided.


2020 Year-End Report On The Judiciary By The Chief Justice Of The United States, Thomas E. Baker Oct 2012

2020 Year-End Report On The Judiciary By The Chief Justice Of The United States, Thomas E. Baker

Pepperdine Law Review

No abstract provided.


Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky Oct 2012

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.


Delaware’S Balancing Act, John Armour, Bernard S. Black, Brian R. Cheffins Oct 2012

Delaware’S Balancing Act, John Armour, Bernard S. Black, Brian R. Cheffins

Indiana Law Journal

Delaware’s courts and well-developed case law are widely seen as integral elements of Delaware’s success in attracting incorporations. However, as we show using empirical evidence involving reported judicial decisions and filed cases concerning large mergers and acquisitions, leveraged buyouts, and options backdating, Delaware’s popularity as a venue for corporate litigation is under threat. Today, a majority of shareholder suits involving Delaware companies are being brought and decided elsewhere. We examine in this Article the implications of this “out-of-Delaware” trend, emphasizing a difficult balancing act that Delaware faces. If Delaware accommodates litigation too readily, companies, fearful of lawsuits ...


Evaluating Contracts For Customized Litigation By The Norms Underlying Civil Procedure, Colter Paulson Sep 2012

Evaluating Contracts For Customized Litigation By The Norms Underlying Civil Procedure, Colter Paulson

Colter Paulson

Recent scholarship on the potential for contractual modifications of litigation procedure focuses on contractual theories of enforcement, with constraints supplied by public policy. But this approach ignores the fact that such contracts purport to bind a third-party, the court, that did not agree to change its procedures. Nor can contractual theories of enforcement fully account for the societal and institutional interests in existing procedures. These problems are resolved, however, when contractual procedures are seen primarily as procedures, rather than as contracts, and are evaluated in light of the norms underlying civil procedure.

These norms are found both in the explicit ...


The Tiered Article V, Michael Gentithes Sep 2012

The Tiered Article V, Michael Gentithes

Michael Gentithes

When the authors of the United States Constitution drafted Article V, they intended to strike a balance between constancy and modernity. That balance would account for the authors’ fallibility while at the same time establishing an enduring constitutional regime that was the unquestionable source of the nation’s most deeply entrenched legal norms. Experience has shown that Article V fell short of that aim. Instead, it has handcuffed constitutional modernization, either precluding needed reforms or forcing constitutional changes to seep through alternative, informal pathways for the creation of new “constitutional” law. That pattern can and should be averted. In this ...


The Constitutional Procedural Principle: A Normative Morphology For Gauging Threats To Judicial Independence, Tara Price Sep 2012

The Constitutional Procedural Principle: A Normative Morphology For Gauging Threats To Judicial Independence, Tara Price

Tara Price

For more than two hundred years, judicial review has served as the foundation of the American judicial branch. And yet, more than two centuries later, scholars and political figures continue to debate its proper place in American government. Recently, Presidential candidate Newt Gingrich waded into this debate, calling for members of Congress and the President to take stronger actions to check and balance what he termed “judicial supremacy.” Cries for a weakened judicial branch and insistence on the importance of reining in activist judges are becoming commonplace throughout American history.

As Gingrich and many before him have realized, the President ...


Vanishing Point: Alzheimer's Disease And Its Challenges To The Federal Rules Of Evidence, Ann Murphy Sep 2012

Vanishing Point: Alzheimer's Disease And Its Challenges To The Federal Rules Of Evidence, Ann Murphy

Ann Murphy

ABSTRACT Vanishing Point: Alzheimer’s Disease and Its Challenges to the Federal Rules of Evidence As of 2012, an estimated 5.4 million Americans suffer from Alzheimer’s disease (AD). By the year 2030, due to the overall aging of our population, the number of individuals with AD is expected to increase dramatically. Courts will consequently confront evidentiary issues involving parties, defendants, witnesses, and victims who are suffering from various stages of the disease. Testimony of course involves descriptions of events that happened in the past and thus frequently involves memory. This article explores three specific areas of evidence that ...


A Horse Of A Different Color: Distinguishing The Judiciary From The Political Branches In Campaign Financing, Anthony J. Delligatti Sep 2012

A Horse Of A Different Color: Distinguishing The Judiciary From The Political Branches In Campaign Financing, Anthony J. Delligatti

West Virginia Law Review

No abstract provided.


Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson Aug 2012

Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson

Scott Dodson

This amicus brief in support of neither party in the merits case of Sebelius v. Auburn Regional Medical Center, No. 11-1231, urges the Supreme Court to decide the question presented (whether 42 U.S.C. § 1395oo(a)(3) permits equitable tolling) without resort to jurisdictional labels.


When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff Aug 2012

When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff

Abigail R. Moncrieff

There was an argument that Solicitor General Donald B. Verrilli could have made—but didn’t—in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise ...


Essay: Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein Aug 2012

Essay: Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein

Neal E. Devins

The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer ...


Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein Aug 2012

Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein

Neal E. Devins

The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer ...


Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein Aug 2012

Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein

Neal E. Devins

The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer ...


The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger Aug 2012

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug war.


The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger Aug 2012

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug war.


The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger Aug 2012

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug war.


Hope, Fear And Loathing, And The Post-Sebelius Disequilibrium: Assessing The Relationship Between Parties, Congress, And Courts In Tea Party America, Bruce Peabody Aug 2012

Hope, Fear And Loathing, And The Post-Sebelius Disequilibrium: Assessing The Relationship Between Parties, Congress, And Courts In Tea Party America, Bruce Peabody

Bruce Peabody

The article examines recent website commentary by members of the U.S. House on the judiciary, court cases, and judicial power. We consider member websites both before and after the just-completed 2011 Supreme Court term. With this unique data at our disposal, we argue that three features of today’s political environment—the rise of the Tea Party, instability in traditional party allegiances to courts, and low voter ratings of the legislature’s institutional performance—have combined to create a moment of disequilibrium when it comes to Congress’s public assessments of the judiciary. We sketch a picture of institutional ...


The Rules Of Engagement, David D. Butler Aug 2012

The Rules Of Engagement, David D. Butler

David D. Butler

This 1,650 word essay examines how law influences life and life influences the law in the context of a criminal, jury trial.


Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein Aug 2012

Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein

Neal E. Devins

The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer ...


Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein Aug 2012

Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein

Neal E. Devins

The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer ...