Courts Commons^™

The Limits Of Statutory Interpretation: Towards Explicit Engagement, By The Supreme Court Of Canada, With The Charter Right To Freedom Of Expression In The Context Of Copyright, Graham Reynolds

All Faculty Publications

In its post-2002 copyright jurisprudence, the Supreme Court of Canada has clarified that the Copyright Act grants a significant degree of latitude to non-copyright owning parties to express themselves using copyrighted works. This outcome is attributable neither to the SCC having interpreted provisions of the Copyright Act according to Charter values nor to the SCC having weighed provisions of the Copyright Act against the section 2(b) right to freedom of expression. Rather, it has resulted from the SCC interpreting provisions of the Copyright Act through the lens of the purpose of copyright, as re-articulated by the SCC. The author argues …

Integrating Mindfulness Theory And Practice Into Trial Advocacy, David M. Zlotnick

Richmond Public Interest Law Review

This article discusses using mindfulness techniques to help students learn authenticity in trial setting.

The Call And The Response: The Call, The 1991 Open Letter From Federal Judge A. Leon Higginbotham, Jr., And The 25 Years Of Response From Justice Clarence Thomas, 49 J. Marshall L. Rev. 925 (2016), Angela Mae Kupenda

UIC Law Review

No abstract provided.

Acting Gay, Acting Straight: Sexual Orientation Stereotyping, Luke A. Boso

Tennessee Law Review

What does it mean to discriminate because of sexual orientation? This legal question will increasingly arise as many states and municipalities enact laws that include sexual orientation as a protected trait. Without evidence of overt hostility towards or moral disapproval of gays as a group, plaintiffs may introduce evidence of sexual orientation stereotyping to make their case: i.e., evidence that an actor relied on group-based sexual orientation stereotypes in deciding to discriminate against an individual plaintiff. But how should courts determine whether the stereotyping relates to sexual orientation? It is important to answer this question for the litigants and judges …

Contents

Tennessee Law Review

No abstract provided.

Contents

Tennessee Law Review

No abstract provided.

Annual Index

Tennessee Law Review

No abstract provided.

Uncertainty And Reverse Payments, Ramsi A. Woodcock

Tennessee Law Review

The current approach to "reverse payment" settlements of drug patent litigation seeks to preclude only those settlements guaranteed to harm consumers, rather than all that could harm them. Antitrust tolerates the possibility of harm in order to give firms the freedom to make settlements that might benefit consumers, relative to what courts would achieve under patent law. Antitrust's mission is not, however, to improve upon outcomes under patent law, but rather to prevent harm to consumers. Accordingly, antitrust must minimize the possibility of harm, even if that precludes the chance of gain. I show that a ban on all settlements …

The Ascertainability Landscape And The Modern Affidavit, Jordan Elias

Tennessee Law Review

No abstract provided.

Expert Prevalence, Persuasion And Price: What Trial Participants Really Think About Experts, Andrew W. Jurs

Indiana Law Journal

By measuring how expert witnesses are actually used in court, this study offers important new data about what makes expert effective and suggests that some commonly held beliefs about experts are misguided. In doing so, the data establishes an important new baseline for measuring expert witnesses in court, updating and expanding on prior research in the field.

A Referee Without A Whistle: Magistrate Judges And Discovery Sanctions In The Seventh Circuit, Landyn Wm. Rookard

Indiana Law Journal

This Note ultimately argues that, if the Seventh Circuit is not willing to reverse its holdings in Alpern v. Lieb and Retired Chicago Police Ass'n v. City of Chicago in light of recent developments, Congress should again clarify its intent. In the face of the crushing "costs of discovery [that] threaten to exceed the amount at issue in all but the largest cases," it is the Seventh Circuit's responsibility to employ all just and legal devices to comply with Congress's mandate "to secure the just, speedy, and inexpensive determination of every action and proceeding."

“By The Court”: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick

Osgoode Hall Law Journal

What do the BCE case of 2008, the Securities Reference case of 2010, the Senate Reform Reference case of 2014, and the Carter (assisted suicide) case of 2015 have in common? All are unanimous decisions of the Supreme Court of Canada in which the reasons for judgment—the explanation as to why the outcome is the legally and constitutionally appropriate one—are not attributed to any specific named judge or judges on the Supreme Court, but rather to a mysterious entity called THE COURT. Very few Supreme Court decisions take this form, and there was a time not that long ago when …

The New Public, Sarah Seo

Faculty Scholarship

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history …

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …

For Judith S. Kaye, Susan N. Herman

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Out Of Cite, Out Of Mind: Navigating The Labyrinth That Is State Appellate Courts' Unpublished Opinion Practices, Lauren S. Wood

University of Baltimore Law Review

Imagine that you are an attorney, litigating an appellate case with an atypical fact pattern. You are familiar with the law; however, its application to your client's circumstances is entirely unclear. After endless hours of research, you finally find it: a factually apposite case with a favorable outcome. Elated, you grab your legal pad to scribble down the case citation. But then you see it-that dreaded text at the top of the opinion: "NOT SELECTED FOR PUBLICATION." This is an unpublished opinion. Perturbed and exhausted, your mind starts racing: "What's that rule again? Can I use this? I think that …

The Past, Present, And Future Of Predictive Coding, Matthew G. Kenney

Florida A & M University Law Review

Electronic discovery, or e-discovery, refers to the discovery of electronically stored documents and images.' Examples of e-discovery related documentation would include email, digital versions of paper documents (e.g. MS Word, PDF, Excel, and PowerPoint), social media postings, digital photos, Global Positioning System data, and content within computerized databases, etc. Digital data stored on computers, smartphones, tape drives, hard-drives, portable digital storage devices and the like would fall under the domain of e-discovery. Collecting and sorting massive amounts of electronically stored data presents both opportunities and challenges for lawyers.

For context: In 2015, electronic discovery was a $10.2 billion global industry. …

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard

Journal of Law and Policy

The unpredictability of the Supreme Court’s dormant Commerce Clause (“DCC”) jurisprudence continues to draw trenchant criticism from commentators and the Justices themselves, as the Court remains unable to explain which state taxes and subsidies impede interstate commerce. We show that these problems can be resolved by a Commerce Neutrality framework requiring that state taxes and subsidies provide a combined treatment of inbound and outbound transactions at least as favorable as their treatment of intrastate transactions. This simple test has an economic foundation because taxes and subsidies that violate it create incentives to engage in intrastate rather than interstate transactions. The …

Trying To Fit A Square Peg Into A Round Hole: Why Title Ii Of The Americans With Disabilities Act Must Apply To All Law Enforcement Services, Michael Pecorini

Journal of Law and Policy

Police use of force has been subject to greater scrutiny in recent years in the wake of several high-profile killings of African Americans. Less attention, however, has been paid to the increasingly routine violent encounters between police and individuals with mental illness or intellectual and development disabilities (“I/DD”). This is particularly problematic, as police have become the de-facto first responders to these individuals and far too often police responses to these individuals result in tragedy.

This Note argues that the Americans with Disabilities Act requires law enforcement to provide reasonable accommodations during their interactions with and seizures of individuals with …