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Articles 1 - 30 of 40
Full-Text Articles in Law
Race-Ing Antitrust, I. Bennett Capers, Gregory Day
Race-Ing Antitrust, I. Bennett Capers, Gregory Day
Faculty Scholarship
Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.
We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …
Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin
Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin
Faculty Scholarship
Should the Federal Rules of Evidence apply at bench trials? By their own terms, they apply, but courts have been reluctant to enforce them on themselves with the same rigor that they enforce them on juries. Scholarship on the issue has been mixed. Although McCormick deemed the rules of evidence "absurdly inappropriate" outside of the jury context, more recently, scholars have suggested that many reasons for imposing exclusionary rules on jurors also apply to judges. Yet practical problems persist. For one, once judge evaluate the admissibility of evidence, they can’t “unring the bell” and ignore evidence they've decided to exclude. …
Theorizing Corroboration, Maggie Wittlin
Theorizing Corroboration, Maggie Wittlin
Faculty Scholarship
A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.
This Article argues that there is a key problem with using corroboration to evaluate …
The Institutions Of Family Law, Clare Huntington
The Institutions Of Family Law, Clare Huntington
Faculty Scholarship
Family law scholarship is thriving, with scholars using varied methodologies to analyze intimate partner violence, cohabitation, child maltreatment, juvenile misconduct, and child custody, to name but a few areas of study. Despite the richness of this discourse, however, most family law scholars ignore a key tool deployed in virtually every other legal-academic domain: institutional analysis.
This methodology, which plays a foundational role in legal scholarship, focuses on four basic questions. Scholars often begin empirically, identifying the specific legal, social, and economic institutions that shape an area of legal regulation. Beyond descriptive accounts, scholars analyze how authority is and should be …
Countering Gerrymandered Courts, Jed H. Shugerman
Countering Gerrymandered Courts, Jed H. Shugerman
Faculty Scholarship
The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.
This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping …
A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan
A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan
Faculty Scholarship
In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.
This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which …
Free-Ing Criminal Justice, I. Bennett Capers
Free-Ing Criminal Justice, I. Bennett Capers
Faculty Scholarship
No abstract provided.
Arbitral Courts, Pamela K. Bookman
Arbitral Courts, Pamela K. Bookman
Faculty Scholarship
In recent years, states from Delaware to Dubai have been establishing something in between courts and arbitration, what this Article calls “arbitral courts.” Arbitral courts mimic arbitration’s traditional features. They hire internationally well-regarded judges who may also work as arbitrators. They claim the neutrality, expertise, and sometimes the privacy and confidentiality of international arbitration. Unlike arbitration, however, they bind third parties, develop law, and wield the power of the state.
This Article identifies, theorizes, and explores the significance of these new arbitral courts. Arbitral courts unsettle traditional distinctions between public and private adjudication. Their appearance has significant consequences not only …
Victims’ Rights From A Restorative Perspective, Lara Bazelon, Bruce A. Green
Victims’ Rights From A Restorative Perspective, Lara Bazelon, Bruce A. Green
Faculty Scholarship
The criminal adjudicatory process is meant in part to help crime victims heal. But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims. For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution. But these efforts, while important, have not persuaded crime victims to trust criminal process. For example, sexual assaults remain grossly under-reported and under-prosecuted. Less than 1 percent of sexual assault crimes result in a felony conviction. …
Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott
Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott
Faculty Scholarship
The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …
When Prosecutors Politick: Progressive Law Enforcers Then And Now, Bruce A. Green, Rebecca Roiphe
When Prosecutors Politick: Progressive Law Enforcers Then And Now, Bruce A. Green, Rebecca Roiphe
Faculty Scholarship
A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses a historical comparison to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of …
Does Revlon Matter? A Empirical And Theoretical Study, Matthew D. Cain Ph. D., Sean J. Griffith, Robert J. Jackson Jr., Steven D. Solomon
Does Revlon Matter? A Empirical And Theoretical Study, Matthew D. Cain Ph. D., Sean J. Griffith, Robert J. Jackson Jr., Steven D. Solomon
Faculty Scholarship
We empirically examine whether and how the doctrine of enhanced judicial scrutiny that emerged from Revlon and its progeny actually affects M&A transactions. Combining hand-coding and machine-learning techniques, we assemble data from the proxy statements of publicly announced mergers between 2003 and 2017 into a dataset of 1,913 unique transactions. Of these, 1,167 transactions were subject to the Revlon standard, and 553 were not. After subjecting this sample to empirical analysis, our results show that Revlon does indeed matter for companies incorporated in Delaware. We find that in Delaware, Revlon deals are more intensely negotiated, involve more bidders, and result …
The Fact-Law Distinction: Strategic Factfinding And Lawmaking In A Judicial Hierarchy, Sepehr Shahshahani
The Fact-Law Distinction: Strategic Factfinding And Lawmaking In A Judicial Hierarchy, Sepehr Shahshahani
Faculty Scholarship
No abstract provided.
The Adjudication Business, Pamela K. Bookman
The Adjudication Business, Pamela K. Bookman
Faculty Scholarship
The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts also challenges the traditional accounts of the competitive relationship between and among courts and arbitral tribunals for this business. London and New York have long been considered the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond.
The emerging scholarship addressing these new courts tends to …
Early Childhood Development And The Replication Of Poverty, Clare Huntington
Early Childhood Development And The Replication Of Poverty, Clare Huntington
Faculty Scholarship
Traditional understandings of federalism suggest that states are likely to take varying approaches to important policy questions, particularly in areas as sensitive as family law. And indeed, there are patterns of convergence and divergence in state approaches to supporting early childhood development. Surprisingly, however, the divergences do not always follow predictable political lines. These similarities and differences raise a puzzle that deserves attention by scholars and advocates.
In the United States, differences in early childhood play a key role in replicating poverty. Clear evidence establishes that child development in the first five years of life lays essential groundwork for future …
Risk-Averse Contract Interpretation, Aditi Bagchi
Risk-Averse Contract Interpretation, Aditi Bagchi
Faculty Scholarship
No abstract provided.
How Courts In Criminal Cases Respond To Childhood Trauma, Deborah W. Denno
How Courts In Criminal Cases Respond To Childhood Trauma, Deborah W. Denno
Faculty Scholarship
Neurobiological and epidemiological research suggests that abuse and adverse events experienced as a child can increase an adult’s risk of brain dysfunction associated with disorders related to criminality and violence. Much of this research is predictive, based on psychological evaluations of children; few studies have focused on whether or how criminal proceedings against adult defendants consider indicators of childhood trauma. This Article analyzes a subset of criminal cases pulled from an 800-case database created as part of an original, large-scale, empirical research project known as the Neuroscience Study. The 266 relevant cases are assessed to determine the extent to which, …
A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe
A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe
Faculty Scholarship
Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …
Ad Hoc Procedure, Pamela K. Bookman, David L. Noll
Ad Hoc Procedure, Pamela K. Bookman, David L. Noll
Faculty Scholarship
Ad hoc procedure” seems like an oxymoron. A traditional model of the civil justice system depicts courts deciding cases using impartial procedures that are defined in advance of specific disputes. This model reflects a process-based account of the rule of law in which the process through which laws are made helps to ensure that lawmakers act in the public interest. Judgments produced using procedures promulgated in advance of specific disputes are legitimate because they are the product of fair rules of play designed in a manner that is the opposite of ad hoc.
Actual litigation frequently reveals the inadequacy of …
Litigation Isolationism, Pamela K. Bookman
Litigation Isolationism, Pamela K. Bookman
Faculty Scholarship
Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts.
This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that is, doctrines that …
Judicial Review Of Mediated Settlement Agreements: Improving Mediation With Consent, Jacqueline Nolan-Haley
Judicial Review Of Mediated Settlement Agreements: Improving Mediation With Consent, Jacqueline Nolan-Haley
Faculty Scholarship
No abstract provided.
Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib
Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib
Faculty Scholarship
This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …
Of Cameras And Courtrooms, Alex Kozinski, Robert Johnson
Of Cameras And Courtrooms, Alex Kozinski, Robert Johnson
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Does Medellin Matter?, Janet Koven Levit
Report Of The Judiciary And The Courts Working Group, Nanette Schorr
Report Of The Judiciary And The Courts Working Group, Nanette Schorr
Fordham Law Review
No abstract provided.
The Admission Of Dna Evidence In State And Federal Courts, George Bundy Smith, Janet A. Gordon
The Admission Of Dna Evidence In State And Federal Courts, George Bundy Smith, Janet A. Gordon
Fordham Law Review
No abstract provided.
Protecting Human Rights Through A Constitutional Court: The Case Of South Africa, Brice Dickson
Protecting Human Rights Through A Constitutional Court: The Case Of South Africa, Brice Dickson
Fordham Law Review
No abstract provided.
The New York Court Of Appeals: 150 Years, George Bundy Smith
The New York Court Of Appeals: 150 Years, George Bundy Smith
Fordham Law Review
No abstract provided.
Report Of The Working Group On The Judicial Role, Kathleen Mccree Lewis
Report Of The Working Group On The Judicial Role, Kathleen Mccree Lewis
Fordham Law Review
No abstract provided.
United States V. Gaudin: A Decision With Material Impact, Jeffrey Saks
United States V. Gaudin: A Decision With Material Impact, Jeffrey Saks
Fordham Law Review
No abstract provided.