Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing, Josephine Sandler Nelson
The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.
Especially in the wake of the financial crisis, prosecutors and the public are searching for new tools to combat corporate conspiracy. The most ...
Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, Adam Lamparello
Georgia’s “beyond a reasonable doubt” standard for determining intellectual disability has led to an absurd—and arbitrary—result. A Georgia state court held that defendant Warren Hill was intellectually disabled, yet still sentenced Hill to death. Seven experts—and the court—deemed Hill disabled under a preponderance of the evidence standard. He remains on death row, however, because Georgia’s “preposterous burden of proof” requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. It “effectively limits the constitutional right protected in Atkins,” and creates a conditional, not categorical ...
Talking Points, 2015 SelectedWorks
Talking Points, Alex Stein, Jef De Mot
Our civil liability system affords numerous defenses against every single violation of the law. Against every single claim raised by the plaintiff, the defendant can assert two or more defenses each of which gives him an opportunity to win the case. As a result, when a court erroneously strikes out a meritorious defense, it might still keep the defendant out of harm’s way by granting him another defense. Rightful plaintiffs, on the other hand, must convince the court to deny each and every defense asserted by the defendant. Any rate of adjudicative errors—random and completely unbiased—consequently increases ...
The Death Of Tax Court Exceptionalism, 2014 SelectedWorks
The Death Of Tax Court Exceptionalism, Stephanie Hoffer, Christopher J. Walker
Christopher J. Walker
Tax exceptionalism—the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state—has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial review of the Treasury Department’s interpretations of the tax code is subject to the same Chevron deference regime that applies throughout the administrative state. The D.C. Circuit followed suit by rejecting the IRS’s position that its notices are not subject to judicial review under the Administrative Procedure Act (APA). This Article calls for ...
California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, 2014 University of San Diego
California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson
In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and ...
The Costs Budget, 2014 Notre Dame Law School
The Costs Budget, Jay Tidmarsh
Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives—both rational and irrational—to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and in some instances exacerbate the parties’ incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly ...
America's Political Prisoners, 2014 SelectedWorks
America's Political Prisoners, Ruben B. Botello Jd
Ruben B Botello JD
America's political prisoners most often die behind bars because the U.S. government and its several states and territories have no intention of ever releasing them. These prisoners are usually the boldest and brightest adults from Minority communities, natural-born leaders with the greatest potential, to organize and inspire their people, to rise up en masse against the institutionalized racism that keeps their communities poor, exploited and oppressed.
Sherlock’S Admonition: Vindicatory Contempts As Criminal Actions For Purposes Of 11 U.S.C. § 362(B)(1), Amir Shachmurove
No abstract provided.
Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, 2014 SelectedWorks
Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca K. Stewart
Rebecca K Stewart
Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.
Yet in recent years, the seed ...
Judicial Overstating, 2014 BLR
Judicial Overstating, Dan Simon, Nicholas Scurich
University of Southern California Legal Studies Working Paper Series
Ostensibly, we are all Legal Realists now. No longer do legal theorists insist that judicial decision making fits the mechanical and formalist characterizations of yesteryear. Yet, the predominant style of American appellate court opinions seems to adhere to that improbable mode of adjudication. As argued elsewhere, opinions habitually provide excessively large sets of syllogistic reasons and portray the chosen decision as certain, singularly correct, and as determined inevitably by the legal materials (Simon, A Psychological Model of Judicial Decision Making, 1998).
This article examines two possible explanations for this rhetorical style of Judicial Overstating. First, we review the psychological research ...
On Michigan Judicial Qualifications Amendment, Proposal B (1996), 2014 SelectedWorks
On Michigan Judicial Qualifications Amendment, Proposal B (1996), Taras Zenyuk
I was a law student at Thomas M. Cooley Law School in Michigan at the Lansing campus from 2008 to 2012. In 2007, when I had applied for 11 law schools, at the end, all of them rejected my application for one reason or another. That was my second straight year of trying to get in. I was told that I should have tried some other occupations, but I kept hoping to the end, since I was on the waiting list at Pace Law School. A few weeks before classes were about to begin, I received a flayer in my ...
Antitrust Analysis After Actavis: Applying The Rule Of Reason To Reverse Payments, Benjamin Miller
In F.T.C. v. Actavis, Inc. the Supreme Court resolved a circuit split regarding the proper evaluation of reverse payment settlements under federal antitrust law, holding that they must be evaluated under a rule of reason analysis. However, the Court simultaneously created significant uncertainty by declaring that the lower courts were responsible for structuring the analysis. While a few cases are currently in the pre-trial phase, the only decisions relating to reverse payments since Actavis have been rulings on pre-trial motions—there have been no decisions on the merits. Given the intricate intersection between antitrust and intellectual property ...
Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, 2014 SelectedWorks
Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma E. Marouf
Fatma E Marouf
This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and ...
Avoiding Mock Trial By Ambush: A Trial Advocacy Competition Primer, 2014 Charleston School of Law
Avoiding Mock Trial By Ambush: A Trial Advocacy Competition Primer, Todd Bruno, Kathryn Sheely
This work is intended as a short but complete introduction to law school trial advocacy competition. Specifically, it is intended as a road map for students and coaches who have taken the plunge into mock trial competitions. There is currently a lack of introductory material for beginning trial advocacy students. This article does not seek to replace the valuable tomes on trial advocacy by Thomas Mauet, the National Institute for Trial Advocacy, Larry Pozner and Roger Dodd, or Terence MacCarthy. Rather, it is offered to bridge the gap between these large works for individual trial advocates and the needs of ...
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, 2014 University of Pennsylvania Law School
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members ...
Hiding The Elephant (How The Psychological Techniques Of Magicians Can Be Used To Manipulate Witnesses At Trial), 2014 Lincoln Memorial University - Duncan School of Law
Hiding The Elephant (How The Psychological Techniques Of Magicians Can Be Used To Manipulate Witnesses At Trial), Sydney A. Beckman
Sydney A. Beckman
In 1917 Harry Houdini performed a single, yet incredible, illusion; “[u]nder the bright spotlights of New York’s Theatre Hippodrome, he made a live elephant disappear.” In 1983 David Copperfield made the Statue of Liberty Disappear in front of both a live and a national television audience. To be sure, neither the elephant nor Lady Liberty actually disappeared. But from the perspective of the audience they did, indeed, disappear. So which is correct? Did they, or didn’t they?
Trial Lawyers and Magicians share many of the same talents and skills. Misdirection, misinformation, selective-attention, ambiguity, verbal manipulation, body language ...
Shame, Angry Judges, And The Social Media Effect, 2014 The Catholic University of America, Columbus School of Law
Shame, Angry Judges, And The Social Media Effect, Maxine D. Goodman
Catholic University Law Review
No abstract provided.
Litigation Technology For The Modern Practitioner, 2014 SelectedWorks
Litigation Technology For The Modern Practitioner, Jonathan H. Lomurro Esq. Llm, Christopher T. Campbell Esq, Matthew K. Blaine Esq, Stephanie L. Lomurro Esq, Christina V. Harvey Esq
Jonathan H. Lomurro Esq. LLM
No abstract provided.
Allison Orr Larsen On Intensely Empirical Amicus Briefs And Amicus Opportunism At The Supreme Court, 2014 College of William & Mary Law School
Allison Orr Larsen On Intensely Empirical Amicus Briefs And Amicus Opportunism At The Supreme Court, Allison Orr Larsen
No abstract provided.
Is It Time For The Court To Accept The O.F.F.E.R.? Applying Smith V. Organization Of Foster Families For Equality And Reform To Promote Clarity, Consistency, And Federalism In The World Of De Facto Parenthood, 2014 SelectedWorks
Is It Time For The Court To Accept The O.F.F.E.R.? Applying Smith V. Organization Of Foster Families For Equality And Reform To Promote Clarity, Consistency, And Federalism In The World Of De Facto Parenthood, Eric A. Degroff, Steven W. Fitschen
Eric A DeGroff
The question of psychological, or de facto, parents and their rights versus biological or adoptive parents has been percolating through the state and lower federal courts for some years. Given the disparity in approaches and the constitutional issues implicated, it is likely that the Supreme Court will take up this issue, and it may well do so in the near future. When it does, it is imperative that the Court adopt a test that will serve American society and her children and families well. This article proposes such a test.
The argument could be made that, absent a finding of ...