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- Brad R Schlesinger (3)
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Articles 1 - 30 of 30
Full-Text Articles in Law
Unconstitutional Animus, Susannah W. Pollvogt
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 …
Evaluating Contracts For Customized Litigation By The Norms Underlying Civil Procedure, Colter Paulson
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 Constitutional Procedural Principle: A Normative Morphology For Gauging Threats To Judicial Independence, Tara Price
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
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 will be affected …
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
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 …
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
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 …
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
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 …
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, partisan, and ideological engagement with the …
The Rules Of Engagement, David D. Butler
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.
What Do Kim Kardashian And Lance Armstrong Have In Common?: Celebrity Complaints In The Classroom, Amy K. Langenfeld
What Do Kim Kardashian And Lance Armstrong Have In Common?: Celebrity Complaints In The Classroom, Amy K. Langenfeld
Amy K Langenfeld
Every day brings a report of a celebrity suing or being sued. The complaints initiating these suits are available online within hours. Regardless of the merits or outcomes of these complaints by or against celebrities, celebrity complaints are a rich source of samples for the law school classroom. As supplements to course materials in civil procedure or legal writing, celebrity complaints are likely to generate discussion for several reasons. First, they show a range of strategies and persuasive writing techniques. Second, they engage students because they are real world documents, and because they have a pop culture setting. Third, they …
The Business Judgment Rule As An Immunity Doctrine, Lori A. Mcmillan
The Business Judgment Rule As An Immunity Doctrine, Lori A. Mcmillan
Lori A. McMillan
The business judgment rule is a judicially created doctrine that protects directors from personal civil liability for the decisions they make on behalf of a corporation. In today’s era of corporate scandals, global financial meltdowns, and directorial malfeasance it has become especially important in setting the bar for when directors are appropriately responsible to shareholders for their actions. Traditionally the business judgment rule has been regarded as a standard of liability, although it has never really been explored or enunciated as such. This view determines eligibility for business judgment rule protection of a decision after an examination of certain preconditions. …
Judicial Efficacy – Providing Justice In State Courts In The Midst Of A Budget Crisis, Mark Gould
Judicial Efficacy – Providing Justice In State Courts In The Midst Of A Budget Crisis, Mark Gould
Mark Gould
No abstract provided.
Offensive Venue: The Curious Use Of Declaratory Judgment To Forum Shop In Patent Litigation, Chester S. Chuang
Offensive Venue: The Curious Use Of Declaratory Judgment To Forum Shop In Patent Litigation, Chester S. Chuang
Chester S. Chuang
Forum shopping is widespread in patent litigation because there are clear differences in outcomes among the various federal districts. An accused patent infringer that is sued in a particularly disadvantageous forum can file a motion to transfer to a more convenient forum, but the general consensus is that such motions are difficult to win. Accordingly, accused infringers often file declaratory judgment actions to forum shop. Such actions allow accused infringers to preemptively sue the patent owner in the accused infringer’s preferred forum, and are considered by many to be the best way for accused infringers to play the forum shopping …
The Rules Of Engagement, David D. Butler
The Rules Of Engagement, David D. Butler
David D. Butler
This brief article contains 1,300 words. It is well worth your time to read it in full.
How Legislative Bans On Foreign And International Law Obstruct The Practice And Regulation Of American Lawyers, David Nersessian
How Legislative Bans On Foreign And International Law Obstruct The Practice And Regulation Of American Lawyers, David Nersessian
David Nersessian
Thirty-two state legislatures have introduced (and five have enacted) “blocking” initiatives that prohibit foreign or international law in state judicial decisions. Some states, such as Oklahoma, extend this ban to religious tenets, notably Sharia law. Scholarly discourse to date has focused principally upon how such legislation discriminates against minority religious groups. The academic community has yet to consider the serious collateral (and apparently unintended) impact of such laws on American lawyers, which is the subject of this article.
Blocking laws make it all but impossible for practicing lawyers to fulfill their ethical obligations in legal matters abroad, which forces them …
Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard
Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard
Eric H Schepard
This article argues that Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. It examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. …
Breakthrough Science And The New Rehabilitation, Meghan J. Ryan
Breakthrough Science And The New Rehabilitation, Meghan J. Ryan
Meghan J. Ryan
Breakthroughs in pharmacology, genetics, and neuroscience are transforming how society views criminals and thus how society should respond to criminal behavior. Although the criminal law has long been based on notions of culpability, science is undercutting the assumption that offenders are actually responsible for their criminal actions. Further, scientific advances have suggested that criminals can be changed at the biochemical level. The public has become well aware of these advances largely due to pervasive media reporting on these issues and also as a result of the pharmaceutical industry’s incessant advertising of products designed to transform individuals by treating everything from …
Illegal Emigration: The Continuing Life Of Invalid Deportation Orders, Richard Frankel
Illegal Emigration: The Continuing Life Of Invalid Deportation Orders, Richard Frankel
Richard Frankel
Federal appeals courts overturn more than one thousand deportation orders every year. A significant number of those reversals involve non-citizens who are abroad because they have been deported as a result of losing their cases at the administrative level. Although an order overturning a deportation order ordinarily restores non-citizens to their prior status of being lawfully present in the United States, federal immigration authorities have used the fact of the non-citizen’s now-invalidated deportation to subject such non-citizens to a new and previously inapplicable set of standards that has the effect of preventing them from returning. Under this practice, non-citizens who …
The Skeptic's Guide To Information Sharing At Sentencing, Ryan W. Scott
The Skeptic's Guide To Information Sharing At Sentencing, Ryan W. Scott
Ryan W. Scott
The “information sharing” model, a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. Armed with that information, judges can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law. This Article takes a skeptical view, arguing that information sharing suffers from three fundamental weaknesses as an alternative to …
The Reality Of Eu-Conformity Review In France, Juscelino F. Colares
The Reality Of Eu-Conformity Review In France, Juscelino F. Colares
Juscelino F. Colares
French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …
University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal
University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal
Zena Denise Crenshaw-Logal
On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …
Judicial Retention Elections, The Rule Of Law, And The Rhetorical Weaknesses Of Consequentialism, Todd E. Pettys
Judicial Retention Elections, The Rule Of Law, And The Rhetorical Weaknesses Of Consequentialism, Todd E. Pettys
Todd E. Pettys
From Alaska to Florida, the 2010 election season brought the nation an unprecedented number of organized campaigns aimed at denying retention to judges who had ruled in ways that some voters found objectionable. Judges in those and other retention-election states can no longer rest comfortably on the assumption that voters will routinely exempt them from meaningful scrutiny. Anxious judges, state bar officials, and others have responded with a set of deontological and consequentialist arguments aimed at persuading voters not to use retention elections as an opportunity to oust judges who have issued controversial rulings. The deontological arguments posit that ousting …
The Vinson Court And The Idol Of Restraint, Zachary Baron Shemtob
The Vinson Court And The Idol Of Restraint, Zachary Baron Shemtob
Zachary Shemtob
Few judicial attributes elicit greater praise than self-restraint. Yet the most restrained court of the twentieth century, that of Chief Justice Frederick M. Vinson, is generally considered a failure. This paper first analyzes the Vinson Court’s adherence to restraint. I then argue why this judicial philosophy is largely responsible for this Court’s poor legacy. I conclude by considering what this says about the nature of judicial restraint itself.
It's Well Past Time To Talk Turkey: The Rule Of Twenty-Four And The Rule Of One Hundred, David D. Butler
It's Well Past Time To Talk Turkey: The Rule Of Twenty-Four And The Rule Of One Hundred, David D. Butler
David D. Butler
The only question is who decides. The mob, the army, the people, the Congress, or the judges are not right because they are right, they are right because they are final. Lenin - the terrorist and not the pop star - said, "If a man says 'A.' he says 'B.'" If you celebrate Brown versus Board, you inevitably celebrate Dred Scott versus Sanford and Plessy versus Furgerson. This article argues that it it time, indeed, past time, for America to abandon lifetime federal judges and with them the poison of affirmative action and school busing.
Imbrication Of Legal And Expert Discourses On Monoparental Adoptive Processes, Raquel Medina Plana
Imbrication Of Legal And Expert Discourses On Monoparental Adoptive Processes, Raquel Medina Plana
Raquel Medina Plana
Long and complex, international adoption processes can be seen as constituting a set of performative practices which involve strategies of transmission/ incorporation of culture, implying the construction of relational identities or subjectivities. With an “educational” drive, and a strong uniformity aspiration, the relevant institutions would be constructing a unified kind of adoptive parenthood, not just in their public dimension but also on the more intimate identity configuration level: the emotional life, affections, expectations, personal history… (Borrillo and Pitois-Etienne, 2004). When confronted with “non-traditional” family projects (as it is the case with monoparental adoption), adoptive processes perform a strong governmental control …
Do We Have 18th Century Courts For The 21st Century, Michael Buenger
Do We Have 18th Century Courts For The 21st Century, Michael Buenger
Michael Buenger
State courts continue to face both funding and political challenges. In light of these challenges state court leaders, the bar and legal educators should undertake a serious rethinking of our state courts along three thematic lines: (1) systemic reorganization to reduce fragmentation, simplify access, and provide greater flexibility and specialization in the use of resources; (2) diversification of dispute resolution processes so that cases move in different directions with a range of resolution options pegged to the issues presented; and (3) rationalization of governance, leadership, and accountability systems to enhance effective organizational management of complex institutions.
The Revolution In Family Law Dispute Resolution, John Lande
The Revolution In Family Law Dispute Resolution, John Lande
John Lande
In the past fifty years, the revolution in American family law led to a revolution in family law dispute resolution. Virtually every aspect of divorce law has been transformed since the Mad Men era, including grounds for divorce, characterization of marital property, child custody presumptions, and alimony and child support rules. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle. In this period, family courts struggled with an increased volume of cases and ambiguous rules. They found that the tools of litigation were poorly suited to handle most …
The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
Brannon P. Denning
In this brief comment on Ben Barton's "An Empirical Study of Supreme Court Justice Pre-Appointment Experience," I argue that appointing persons currently or formerly active in partisan politics would likely not benefit the Court as some have claimed and might affirmatively harm the Court as an institution.
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Brannon P. Denning
Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not …
Secularization By Incorporation: Corporate Identity And The Religious Corporation, Bruce B. Jackson
Secularization By Incorporation: Corporate Identity And The Religious Corporation, Bruce B. Jackson
Bruce B Jackson
First Amendment Religion Clause doctrine applicable to a religious organization’s internal property dispute offers civil courts an option. Provided the controversy does not involve religious doctrine, a civil court may either defer to a religious organization’s governing body, or, resolve the matter itself by applying neutral principles of law. Application of the doctrine requires a civil court to treat religious corporations with a hierarchical form of government differently from those with a congregational form of government. For religious corporations that are hierarchically organized and governed, a normative Religion Clause analysis requires a civil court to defer to the decision of …