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2016

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Full-Text Articles in Law

A Comparative Examination Of Counter-Terrorism Law And Policy, Laurent Mayali, John Yoo Dec 2016

A Comparative Examination Of Counter-Terrorism Law And Policy, Laurent Mayali, John Yoo

Faculty Scholarship

This article conducts a comparative analysis of U.S. and European counter-terrorism law and policy. Recent attacks vy ISIS in the U.S., France, and Germany have revealed important differences between American and European approaches. Before September 11, 2001, the United States responded to terrorism primarily with existing law enforcement authorities, though in isolated cases it pursued military measures abroad. In this respect, it lagged behind the approach of European nations, which had confronted internal terrorism inspired vy leftwing ideology or separatist goals. But after the 9-11 attacks, the United States adopted a preventive posture that aimed to pre-empt terrorist ...


A Case Study On Court Of Appeals Finality, Michael J. Nolan Nov 2016

A Case Study On Court Of Appeals Finality, Michael J. Nolan

Michael J. Nolan

The article illustrates the New York Court of Appeals jurisdictional requirement of finality by tracing the history of a case in which leave to appeal was sought, and dismissed, 5 separate times.


Resolving Cases On The Merits, Jay Tidmarsh Oct 2016

Resolving Cases On The Merits, Jay Tidmarsh

Jay Tidmarsh

Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.


On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr Oct 2016

On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr

Notre Dame Law Review

In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to ...


Some Thoughts Raised By Magna Carta: The Popular Re-Election Of Judges, William Hamilton Bryson Oct 2016

Some Thoughts Raised By Magna Carta: The Popular Re-Election Of Judges, William Hamilton Bryson

Law Faculty Publications

This essay, first presented at the Magna Carta anniversary symposium of the Baronial Order of Magna Charta on April 16, 2015, at The Cosmos Club, in Washington, D.C., takes as its inspiration the spirit of the rule of law, as laid down in the Magna Carta. Specifically, the author argues that the popular election and reelection of judges undermines the rule of law, and democracy in general, by exposing judges to the manipulations of financial corruption, political intimidation, and the often irrational shifts in popular opinion. To correct this problem, the author calls for amendment of the thirty-nine state ...


Appellate Deference In The Age Of Facts, Kenji Yoshino Oct 2016

Appellate Deference In The Age Of Facts, Kenji Yoshino

William & Mary Law Review

This Article explores the question of how much appellate deference is due to “legislative” facts, or broad social facts about the world, established by the district courts. While it is axiomatic that “adjudicative” facts—which are the “whodunit” facts specific to a case—receive clear error deference on appeal, the Supreme Court has yet to address the degree of deference due to legislative facts. While the dominant view among appellate courts is that legislative facts should only receive de novo review, the practice of the courts has in actuality been much more fitful and inconsistent. The standard may be unsettled ...


Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley Sep 2016

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

Laura Moyer

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.


Newsroom: Kuckes On Grand Jury Secrecy 8/30/2016, Roger Williams University School Of Law Aug 2016

Newsroom: Kuckes On Grand Jury Secrecy 8/30/2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Lower Courts And Constitutional Comparativism, Roger P. Alford Aug 2016

Lower Courts And Constitutional Comparativism, Roger P. Alford

Roger P. Alford

The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional ...


Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang Aug 2016

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to ...


One Of These Interns Is Not Like The Others: How The Eleventh Circuit Misapplied The “Tweaked Primary Beneficiary” Test To Required Clinical Internships, Samuel C. Goodman Aug 2016

One Of These Interns Is Not Like The Others: How The Eleventh Circuit Misapplied The “Tweaked Primary Beneficiary” Test To Required Clinical Internships, Samuel C. Goodman

University of Miami Law Review

Today’s ever-changing business environment continues to challenge the traditional educational model, further blurring the line between learning and labor. This has resulted in great uncertainty as to the proper legal treatment of the student intern, specifically the unpaid student intern.

This Note is intended to introduce a new perspective to the unpaid internship debate and highlight the need for courts to focus on the specific type of internship at issue before formulating an approach to best assess whether the intern should be classified as an employee entitled to wages. Part I of the Article will discuss the Fair Labor ...


Newsroom: Monestier On Web Jurisdiction 7/22/2016, Pat Murphy, Roger Williams University School Of Law Jul 2016

Newsroom: Monestier On Web Jurisdiction 7/22/2016, Pat Murphy, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Newsroom: Seeking A Balance: Judicial Diversity In Ri 7/7/2016, Michael M. Bowden, Roger Williams University School Of Law Jul 2016

Newsroom: Seeking A Balance: Judicial Diversity In Ri 7/7/2016, Michael M. Bowden, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Administrative Law: The U.S. And Beyond, Cary Coglianese Jul 2016

Administrative Law: The U.S. And Beyond, Cary Coglianese

Faculty Scholarship

Administrative law constrains and directs the behavior of officials in the many governmental bodies responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and public participation. It also encompasses oversight practices provided by legislatures, courts, and elected executives. The way that administrative law affects the behavior of government officials holds important implications for the fulfillment of democratic principles as well as effective governance in society. This paper highlights salient political theory and legal issues fundamental to the U.S ...


Justice, Justice Shall Ye Pursue, Honorable Jonathan Lippman Jul 2016

Justice, Justice Shall Ye Pursue, Honorable Jonathan Lippman

Impact Center for Public Interest Law

No abstract provided.


Resurrecting Trial By Statistics, Jay Tidmarsh Jun 2016

Resurrecting Trial By Statistics, Jay Tidmarsh

Jay Tidmarsh

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a ...


Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse Jun 2016

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

Faculty Scholarship

This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the neuroscientific ...


The Languishing Public Safety Doctrine, Brian Gallini May 2016

The Languishing Public Safety Doctrine, Brian Gallini

Brian Gallini

Every semester, law students across the country read New York v. Quarles in criminal procedure.  The Supreme Court’s 1984 decision in Quarles established the public safety exception—the first and only exception to the requirements of Miranda v. Arizona.  But at the time of Quarles’s issuance, no one could have predicted just how long it would sit untouched by the Supreme Court. 

Application of Quarles to high profile defendants like James Holmes and Dzhokhar Tsarnaev illustrate the need for more clarity in the context of applying the public safety exception. Mores specifically, those cases demonstrate why the Supreme ...


Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins May 2016

Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins

Faculty Publications

No abstract provided.


Friendly Precedent, Anthony Niblett, Albert H. Yoon Apr 2016

Friendly Precedent, Anthony Niblett, Albert H. Yoon

William & Mary Law Review

This Article explores which legal precedents judges choose to support their decisions.When describing the legal landscape in a written opinion, which precedent do judges gravitate toward? We examine the idea that judges are more likely to cite “friendly” precedent. A friendly precedent, here, is one that was delivered by Supreme Court Justices who have similar political preferences to the lower court judges delivering the opinion. In this Article, we test whether a federal Court of Appeals panel is more likely to engage with binding Supreme Court precedent when the political flavor of that precedent is aligned with the political ...


Enforcement Of Icsid Convention Arbitral Awards In U.S. Courts, Abby Cohen Smutny, Anne D. Smith, Mccoy Pitt Apr 2016

Enforcement Of Icsid Convention Arbitral Awards In U.S. Courts, Abby Cohen Smutny, Anne D. Smith, Mccoy Pitt

Pepperdine Law Review

No abstract provided.


Court Assistance In Arbitration—Some Observations On The Critical Stand-By Function Of The Courts, Jan K. Schaefer Apr 2016

Court Assistance In Arbitration—Some Observations On The Critical Stand-By Function Of The Courts, Jan K. Schaefer

Pepperdine Law Review

No abstract provided.


Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo Apr 2016

Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo

Pepperdine Law Review

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 17, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium ...


The Lawyer As Lover: Are Courts Romanticizing The Lawyer-Client Relationship?, Bruce A. Green Apr 2016

The Lawyer As Lover: Are Courts Romanticizing The Lawyer-Client Relationship?, Bruce A. Green

Touro Law Review

No abstract provided.


What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin Mar 2016

What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin

D'Andre Devon Lampkin

The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.


The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim Feb 2016

The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Hogg, Karen (Fa 842), Manuscripts & Folklife Archives Feb 2016

Hogg, Karen (Fa 842), Manuscripts & Folklife Archives

FA Finding Aids

Finding aid only for Folklife Archives Project 842. This collection “Same Sex Marriage and the Law: An Oral History Project” is comprised of 16 interviews with attorneys--who participated in the 2013 case of Obergefell v. Hodges that challenged Kentucky’s laws related to recognition of same-sex marriages--and couples involved in the movement who sought change and hope for equality.


Newsroom: Sack Joins Women's Fund Of Ri Board, Roger Williams University School Law Jan 2016

Newsroom: Sack Joins Women's Fund Of Ri Board, Roger Williams University School Law

Life of the Law School (1993- )

No abstract provided.


You Haven't Come A Long Way, Baby: The Courts' Inability To Eliminate The Gender Gap Fifty-Two Years After The Passage Of The Equal Pay Act, Morgan A. Tufarolo Jan 2016

You Haven't Come A Long Way, Baby: The Courts' Inability To Eliminate The Gender Gap Fifty-Two Years After The Passage Of The Equal Pay Act, Morgan A. Tufarolo

American University Journal of Gender, Social Policy & the Law

No abstract provided.


Judicial Lobbying, Jonas Anderson Jan 2016

Judicial Lobbying, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

Abstract: Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done-not to mention little that could be done-to restrict judges from lobbying. Judicial lobbying occurs, in large part, when ...