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Articles 1 - 30 of 383

Full-Text Articles in Legal History

Flipping The Script On Brady, Ion Meyn Jul 2020

Flipping The Script On Brady, Ion Meyn

Indiana Law Journal

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this

reason, is understood to burden the prosecutor. This Article asks whether Brady also

benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced

broader dynamics of litigation. Before Brady, legislative reform transformed civil

and criminal litigation by providing pretrial information to civil defendants but not

to criminal defendants. Did this disparate treatment comport with due process?

Brady arguably answered this question by brokering a compromise: in exchange for

imposing minor ...


A Formulaic Recitation Will Not Do: Why, As A Matter Of Law, Federal Rule Of Criminal Procedure 7(C) Should Be Interpreted To Be At Least As Stringent As Federal Rule Of Civil Procedure 8(A), Charles Eric Hintz Apr 2020

A Formulaic Recitation Will Not Do: Why, As A Matter Of Law, Federal Rule Of Criminal Procedure 7(C) Should Be Interpreted To Be At Least As Stringent As Federal Rule Of Civil Procedure 8(A), Charles Eric Hintz

Faculty Scholarship at Penn Law

When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements tracking the elements of a cause of action. Given the infinitely higher stakes involved in criminal cases, one might think that at least as robust a requirement would exist in that context. But, in fact, a weaker pleading standard reigns. Under the governing interpretation of Federal ...


Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla Apr 2020

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction ...


Right-Remedy Equilibration And The Asymmetric Entrenchment Of Legal Entitlements, Michael Coenen Jan 2020

Right-Remedy Equilibration And The Asymmetric Entrenchment Of Legal Entitlements, Michael Coenen

Boston College Law Review

Public-law litigation often gives rise to a basic but important asymmetry: claimants wishing to obtain a particular form of redress for a particular legal wrong must satisfy all the relevant procedural, substantive, and remedial prerequisites to the issuance of judicial relief. In contrast, governments wishing to avoid the issuance of that remedy need only demonstrate that a single such requirement operates in their favor. This Article considers the extent to which this asymmetry influences the development of the law. Specifically, this Article hypothesizes that, where the remediation of a right depends on a claimant’s satisfaction of multiple, mutually necessary ...


Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux Jan 2020

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Articles

No abstract provided.


How Much Do Expert Opinions Matter? An Empirical Investigation Of Selection Bias, Adversarial Bias, And Judicial Deference In Chinese Medical, Chunyan Ding Dec 2019

How Much Do Expert Opinions Matter? An Empirical Investigation Of Selection Bias, Adversarial Bias, And Judicial Deference In Chinese Medical, Chunyan Ding

Brooklyn Journal of International Law

This article investigates the nature of the operation and the role of expert opinions in Chinese medical negligence litigation, drawing on content analysis of 3,619 medical negligence cases and an in-depth survey of judges with experience of adjudicating medical negligence cases. It offers three major findings: first, that both parties to medical negligence disputes show significant selection bias of medical opinions, as do courts when selecting court-appointed experts; second, expert opinions in medical negligence litigation demonstrate substantial adversarial bias; third, courts display very strong judicial deference to expert opinions in determining medical negligence liability. This article fills the methodological ...


The General Knowledge, Skill, And Experience Paradox, Camilla A. Hrdy Dec 2019

The General Knowledge, Skill, And Experience Paradox, Camilla A. Hrdy

Boston College Law Review

Can employers use trade secret law to prevent employees from using knowledge and skills they acquired on the job? Courts in all fifty states say no—an employee’s general knowledge, skill, and experience cannot be protected as a trade secret. Yet a benchmark principle of trade secret law is that employers can share trade secrets with employees so long as they take reasonable measures to preserve the information’s secrecy. The result is a paradox that runs to the heart of trade secret law: employers are encouraged to communicate trade secrets to employees, but this information loses protection if ...


American Legion V. American Humanist Association, Seth T. Bonilla Oct 2019

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.


The Future Of Dairy Cooperatives In The Modern Marketplace: Redeveloping The Capper-Volstead Act, Sarah K. Phillips Oct 2019

The Future Of Dairy Cooperatives In The Modern Marketplace: Redeveloping The Capper-Volstead Act, Sarah K. Phillips

Dickinson Law Review

Agriculture plays a fundamental role in the U.S. economy as a multibillion-dollar industry that feeds people all over the world. However, over the past decade, the dairy industry in particular has changed from a reliable sector of the greater agricultural industry into an unsettled, politically-charged, and fractured group. Dairy farmers’ consistently receiving low milk prices has facilitated this divide. Tired of being ignored and underpaid, dairy farmers are demanding change in the current dairy market structure.

Federal Milk Marketing Orders and a variety of statutes regulate the dairy industry, but the 1922 Capper-Volstead Act remains the most notable piece ...


Death Be Not Strange. The Montreal Convention’S Mislabeling Of Human Remains As Cargo And Its Near Unbreakable Liability Limits, Christopher Ogolla Oct 2019

Death Be Not Strange. The Montreal Convention’S Mislabeling Of Human Remains As Cargo And Its Near Unbreakable Liability Limits, Christopher Ogolla

Dickinson Law Review

This article discusses Article 22 of the Convention for the Unification of Certain Rules for International Carriage by Air (“The Montreal Convention”) and its impact on the transportation of human remains. The Convention limits carrier liability to a sum of 19 Special Drawing Rights (SDRs) per kilogram in the case of destruction, loss, damage or delay of part of the cargo or of any object contained therein. Transportation of human remains falls under Article 22 which forecloses any recovery for pain and suffering unaccompanied by physical injury. This Article finds fault with this liability limit. The Article notes that if ...


Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Due Process Supreme Court Rockland County Jul 2019

Due Process Supreme Court Rockland County

Touro Law Review

No abstract provided.


Due Process Supreme Court Appellate Division Third Department Jul 2019

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.


Due Process Supreme Court Appellate Division Jul 2019

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.


Due Process Pringle V. Wolfe (Decided 28, 1996) Jul 2019

Due Process Pringle V. Wolfe (Decided 28, 1996)

Touro Law Review

No abstract provided.


Due Process People V. Scott (Decided June 5, 1996) Jul 2019

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.


Due Process Court Of Appeals Jul 2019

Due Process Court Of Appeals

Touro Law Review

No abstract provided.


Supreme Court Queens County Jul 2019

Supreme Court Queens County

Touro Law Review

No abstract provided.


Double Jeopardy Jul 2019

Double Jeopardy

Touro Law Review

No abstract provided.


Double Jeopardy Supreme Court Appellate Division Second Department Jul 2019

Double Jeopardy Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.


Double Jeopardy Jul 2019

Double Jeopardy

Touro Law Review

No abstract provided.


What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser Jun 2019

What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser

Susan Poser

Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald ...


O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott Apr 2019

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive ...


Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis Mar 2019

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis

Paul Lewis

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford Jan 2019

Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford

Dickinson Law Review

Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to a jury ...


Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei Oct 2018

Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei

Master of Laws Research Papers Repository

Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that ...


When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner May 2018

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on ...


The Limits Of Pro Se Assistance In Immigration Proceedings: Discussion Of Nwirp V. Sessions, Ryan D. Brunsink, Christina L. Powers Apr 2018

The Limits Of Pro Se Assistance In Immigration Proceedings: Discussion Of Nwirp V. Sessions, Ryan D. Brunsink, Christina L. Powers

Dickinson Law Review

This Article discusses issues regarding assistance of pro se litigants in the context of immigration law. In particular, Part II of this Article highlights programs such as the Legal Orientation Program (LOP) and Immigration Court Helpdesk (ICH) that attempt to alleviate some of the inherent difficulties non-citizen detainees face in immigration proceedings. Part III of this Article focuses on a 2008 Regulation by the Executive Office of Immigration Review (EOIR), which calls for discipline against attorneys that engage in a pattern or practice of failing to enter a Notice of Appearance when engaged in practice or preparation. Lastly, Part IV ...


The Rule Of Reason, Herbert J. Hovenkamp Jan 2018

The Rule Of Reason, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust’s rule of reason was born out of a thirty-year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.

This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up ...