Law Commons^™

Aiding And Abetting Under The Antiterrorism Act: Despite Statutory Silence, Why Extending Liability To Aiders And Abettors Of International Terrorism Furthers Congressional Intent To Compensate Plaintiffs And Defeat Terrorist Financial Pathways, Jesse Snyder

Jesse Snyder

No abstract provided.

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

Daniel Kanstroom

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …

Labor Disputes In Professional Sports: How Federal Judges Referee Antitrust Lawsuits-- False Starts And Technical Fouls, Michael Leroy

Michael H LeRoy

Using a database of 83 published court opinions from 1970-2011, I show that players have utilized conflicting federal laws to improve their labor market mobility. They formed unions under the National Labor Relations Act, and bargained collectively with leagues. Often, however, they lacked bargaining power to modify the draft or reserve clause, which bound them to a team. Players sued, therefore, under the Sherman Act to challenge these practices as restraints of trade. Thus, players have used a dual engagement strategy of bargaining with leagues under the NLRA while holding identical negotiations under the threat of Sherman Act treble damages. …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Law And Lawyers In The U.S.: The Hero-Villain Dichotomy, Judith A. Mcmorrow

Judith A. McMorrow

Lawyers in U.S. culture are often presented in either an extremely positive or extremely negative light. Although popular culture exaggerates and oversimplifies the 'good v. bad' dynamic of lawyers, this dichotomy provides important insights into the role attorneys play in the U.S. legal system, the boundaries of legal ethics, and the extent to which the U.S. legal system is relied upon to address our society's great moral and social dilemmas.

What Should Guide Determinations Of Foreign Official Immunity In Us Courts After Samantar?, Chris C. Morley

Chris C Morley

In the recent Samantar decision, the Supreme Court held that individual foreign officials were not covered by the Foreign Sovereign Immunities Act but might still be covered by common law immunity. This article analyzes the extent of that common law immunity and discusses whether more recent developments in domestic and international human rights law should impact the availability of immunity for officials accused of torture, extra-judicial killings, and other violations of the law of nations.

Although the bulk of authority from US and foreign courts suggests that foreign officials should enjoy immunity for acts committed within the scope of their …

Incommensurability, Practices And Points Of View: Revitalizing H.La. Hart’S Practice Theory Of Rules, Eric J. Miller

Eric J. Miller

The standard reading of H.L.A. Hart’s practice theory of rules is that it failed to provide a sufficient normative basis for a theory of law. That standard reading rests upon a significant misunderstanding: that Hart has an exclusionary reason approach to law. Instead, Hart understands law to be a social practice, one capable of generating valid norms that not only block the operation of moral norms, but which are wholesale incommensurable with them.

Wholesale incommensurability entails that law, as a form of social practice, constitutes a discrete normative system in which the truth-conditions of legal propositions are distinct from the …

Civil Protective Orders In Integrated Domestic Violence Court: An Empirical Study, Erika Rickard

Erika Rickard

New York's Integrated Domestic Violence (IDV) Court was created to streamline the judicial process and promote efficiency and victim safety in cases of domestic violence. One would expect this collaboration and concerted effort on improving the justice system for victims of domestic violence would yield faster results than under the traditional system. The data presented here indicate just the opposite: IDV Courts take longer to address motions for civil protective orders, and are not significantly more likely to grant such orders than traditional matrimonial courts. Delays in the civil protective order process suggest that the problem-solving court may not be …

Checking The Staats: How Long Is Too Long To Give Adequate Public Notice In Broadening Reissue Patent Applications?, David M. Longo

David M. Longo

No abstract provided.

The More Things Change, The More They Stay The Same: A Comparison Of Medical Malpractice Trials In North Carolina And Virginia, 2000-2010i, Ralph Peeples, Catherine Harris

Ralph Peeples

The paper begins with an abstract. Please see the manuscript.

Advisory Adjudication, Girardeau A. Spann

Girardeau A Spann

"Advisory Adjudication" uses the recent Supreme Court decision in Camreta v. Greene as a takeoff point to discuss the way in which inconsistent demands make our conception of judicial review incoherent. In Camreta, the Supreme Court paradoxically issued an advisory opinion in the process of holding that it did not have jurisdiction to issue advisory opinions. I argue that this illustrates the manner in which we want the Supreme Court to act as a prospective policymaking body in a tricameral legislative process, while simultaneously insisting that the Court pretend merely to be engaged in the process of retrospective dispute-resolution. I …

From Proving Pretext To Proving Discrimination: The Real Lesson Of Miller-El And Synder, Joshua Polster

Joshua Polster

In determining whether prosecutors have discriminated in their use of peremptory challenges, courts generally focus on whether defendants are able to prove that the nondiscriminatory reasons that prosecutors proffer for their challenges are pretextual. This focus is a natural result of the McDonnell Douglas framework, which the Supreme Court adopted for peremptory challenges from employment discrimination law. This Article argues that because of differences between jury selection and employment, the methods that employees use to prove pretext are not suited to peremptory challenges. Accordingly, while lower courts generally have interpreted two recent Supreme Court cases—Miller-El v. Dretke and Snyder v. …

Who’S Better At Defending Criminals? Does Type Of Defense Attorney Matter In Terms Of Producing Favorable Case Outcomes, Thomas H. Cohen

Thomas Cohen

The role of defense counsel in criminal cases constitutes a topic of substantial importance for judges, prosecutors, defense attorneys, scholars, and policymakers. What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients? These and other issues are addressed in this article analyzing felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case …

Safeguarding The Safeguards: The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into the structural federalism analysis. The breadth and depth of scholarly criticism is surprising, however, given that judges frequently choose indirect methods, including structural and process-based methods of the kinds at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another recently theorized as …

Az Youth Summit-Questioning Interviewing Techniques, Jalae Ulicki

Jalae Ulicki

Book Review Of Current Issues In Constitutional Litigation: A Context And Practice Casebook (Carolina Academic Press 2011), Christy Whitfield

Sarah E. Ricks

This is a book review of Current Issues in Constitutional Litigation: A Context & Practice Casebook (Carolina Academic Press 2011). My perspective is unique because I have worked with and watched this casebook evolve – I was assigned an early draft of the casebook as a law school student taking a constitutional litigation course, I worked as a research assistant on a later version of the casebook, and now, several years later, I have viewed the final result of the casebook as a practicing attorney. As a former law clerk and now as an attorney advisor in the beginning years …

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 …

"Not That Smart": Sonia Sotomayor And The Construction Of Merit, Guy-Uriel E. Charles Mr., Mitu G. Gulati Mr., Daniel L. Chen Dr.

Guy-Uriel E. Charles Mr.

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such …

Originalism And The Aristotelian Tradition: Virtue’S Home In Originalism, Lee Strang

Lee J Strang

A concept fundamental to philosophy—virtue—is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it takes on board virtue ethics’ insights.

Originalism must articulate virtue’s role in …

The Dialectic Of Obscenity, Brian L. Frye

Brian L Frye

The story of Flaming Creatures and the so-called “Fortas Film Festival” illustrates the dialectic of obscenity. When President Johnson nominated Justice Fortas to replace Chief Justice Warren in 1968, Fortas’s opponents investigated his record, hoping to justify a filibuster. Among other things, they discovered Jacobs v. New York, in which Fortas alone voted to reverse obscenity convictions for showing Flaming Creatures, an obscure art film that featured a transvestite orgy. Senator Thurmond showed Flaming Creatures to several senators, convinced them to join the filibuster, and blocked the Fortas nomination. Under the dialectic of obscenity, art protects pornography and pornography protects …

Judicial Intervention As Risk Reduction, Juliet P. Kostritsky

Juliet P Kostritsky

JUDICIAL INTERVENTION AS RISK REDUCTION J. P. Kostritsky Employing an economics-based consequentialist approach to contract interpretation (focusing on the prospective effect and the factors that might justify intervention) this Article attempts to identify the precise parameters of an optimal framework for contract interpretation. Such a framework would seek to maximize gains from trade. The issue in such cases is always, given the words the parties used, what is the best (surplus maximizing) interpretation of the bargain. Courts can achieve that interpretation by, in part, minimizing the interpretive risk that parties face when they draft an express contract but fail to …

New Evidence On Appeal, Jeffrey C. Dobbins

Jeffrey C. Dobbins

Appellate review is limited, almost by definition, to consideration of the factual record as established in the trial court. Adhering to this record review principle, appellate courts generally reject out of hand any effort to supplement the appellate record with evidence that was not considered by the court below.

There are, however, exceptions to this traditional principle. Whether presented through amicus briefs, social-science-laden “Brandeis Briefs,” petitions for discretionary review, or other mechanisms for supplementing the record, appellate courts often consider and rely upon new evidence. The literature regarding both the traditional rule and the exceptions is limited, and neither courts …

Does Three Do The Trick In The Ninth? The Liberal Ninth Circuit – Myth Or Fact: How The Three Judge Panel, And A System Of Published And Unpublished Opinions Interact With Political Appointments In The Ninth Circuit, Rachel N. Agress

Rachel N. Agress

This article examines the persistent view that the Ninth Circuit is “overly liberal,” and attempts to evaluate this outlook in light of data collected regarding two variables. The first variable is the composition of individual political orientations of judges on the Ninth Circuit as compared to the political composition of other circuit courts. To achieve this comparison, this paper looks at political appointments and classified judges as “liberal” or “conservative,” based on political appointment by a Democratic or Republican president. Further, this article delineates the current percentage of “liberal” versus “conservative” judges in each circuit, comparing the average circuit court …