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Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman 2012 University of Michigan Law School

Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman

Articles

Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial ...


David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross 2012 University of Michigan Law School

David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross

Articles

The first major empirical challenge to racial discrimination in the use of the death penalty in the United States was presented in federal court in the case of William L. Maxwell, who was sentenced to death in Arkansas in 1962 for the crime of rape.1 It was based on a landmark study by Marvin Wolfgang, a distinguished criminologist who had collected data on some 3000 rape convictions from 1945 through 1965 in selected counties across eleven southern states.2 He found that black men who were convicted of rape were seven times more likely to be sentenced to death ...


Government Speech In Transition, Helen Norton 2012 University of Colorado Law School

Government Speech In Transition, Helen Norton

Articles

This symposium essay explores the legacy of the Supreme Court’s decision in Johanns v. Livestock Mktg. Ass’n. There the Court offered its clearest articulation to date of its emerging government speech doctrine. After characterizing contested expression as the government’s, the Court then held such government speech to be exempt from free speech clause scrutiny. In so doing, the Court solved at least one substantial problem, but created others that remain unresolved today. On one hand, Johanns marked the Court’s long overdue recognition of the ubiquity and importance of government speech, appropriately exempting the government’s own ...


Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux 2012 University of Colorado Law School

Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux

Articles

No abstract provided.


Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren Sudeall Lucas 2012 Georgia State University College of Law

Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren Sudeall Lucas

Faculty Publications By Year

The Supreme Court’s recent Sixth Amendment cases have garnered much attention for their potential impact on ineffective assistance of counsel claims asserted in the context of a criminal case. This short article explores the unintended consequences of these decisions on structural ineffective assistance of counsel claims made in the civil context alleging that systemic deficiencies are likely to lead to right to counsel violations. The article concludes that the Court’s departure from a trial-centered conception of the right to counsel, its willingness to articulate specific pre-trial duties of counsel and its more pragmatic approach towards enforcing the Sixth ...


Antitrust And The Movement Of Technology, Herbert J. Hovenkamp 2012 University of Pennsylvania Law School

Antitrust And The Movement Of Technology, Herbert J. Hovenkamp

Faculty Scholarship

Patents create strong incentives for collaborative development. For many technologies fixed costs are extremely high in relation to variable costs. A second feature of technology that encourages collaborative development is the need for interoperability or common standards. Third, in contrast to traditional commons, intellectual property commons are almost always nonrivalrous on the supply side. If ten producers all own the rights to make a product covered by a patent, each one can make as many units as it pleases without limiting the number that others can make. That might seem to be a good thing, but considered ex ante it ...


The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks 2012 University of Colorado Law School

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Articles

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.


Book Review (Reviewing Christopher Waldrep, Jury Discrimination: The Supreme Court, Public Opinion, And A Grassroots Fight For Racial Equality In Mississippi (2010)), Christopher W. Schmidt 2011 Chicago-Kent College of Law

Book Review (Reviewing Christopher Waldrep, Jury Discrimination: The Supreme Court, Public Opinion, And A Grassroots Fight For Racial Equality In Mississippi (2010)), Christopher W. Schmidt

Christopher W. Schmidt

No abstract provided.


Antitrust's "Jurisdictional" Reach Abroad, Herbert J. Hovenkamp 2011 University of Pennsylvania Law School

Antitrust's "Jurisdictional" Reach Abroad, Herbert J. Hovenkamp

Faculty Scholarship

In its Arbaugh decision the Supreme Court insisted that a federal statute’s limitation on reach be regarded as “jurisdictional” only if the legislature was clear that this is what it had in mind. The Foreign Trade Antitrust Improvement Act (FTAIA) presents a puzzle in this regard, because Congress seems to have been quite clear about what it had in mind; it simply failed to use the correct set of buzzwords in the statute itself, and well before Arbaugh assessed this requirement.

Even if the FTAIA is to be regarded as non-jurisdictional, the constitutional extraterritorial reach of the Sherman Act ...


Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers 2011 University of Michigan Law School

Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers

Michigan Law Review

Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.


Split Definitive, Lawrence Baum, Neal Devins 2011 William & Mary Law School

Split Definitive, Lawrence Baum, Neal Devins

Popular Media

For the first time in a century, the Supreme Court is divided solely by political party.


Our Conflicting Judgements About Pornography, Kent Greenfield 2011 Selected Works

Our Conflicting Judgements About Pornography, Kent Greenfield

Kent Greenfield

No abstract provided.


The Accession Insight And Patent Infringement Remedies, Peter Lee 2011 UC Davis School of Law

The Accession Insight And Patent Infringement Remedies, Peter Lee

Michigan Law Review

What is the appropriate allocation of rights and obligations when one party, without authorization, substantially improves the property of another? According to the doctrine of accession, a good faith improver may take title to such improved property, subject to compensating the original owner for the value of the source materials. While shifting title to a converter seems like a remarkable remedy, this outcome merely underscores the equitable nature of accession, which aims for fair allocation of property rights and compensation between two parties who both have plausible claims to an improved asset. This Article draws upon accession-a physical property doctrine ...


Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe 2011 American University, Washington College of Law

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Cornell Law Faculty Publications

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.


Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin 2011 Boston College Law School

Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin

Mark S. Brodin

The piece briefly traces the history of the use of social science in the courtroom, and proceeds to critically measure this form of proof (particularly “syndrome” evidence) against both the reliability standards imposed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and the traditional requirements for admission of expert testimony. Drawing upon empirical research concerning juries and decision-making as well as transcripts of the use of behavioral evidence at trial, I conclude that much of this testimony should be rejected. Rather than providing meaningful assistance to the jury, social science experts can distort the accuracy of the fact-finding process and imperil ...


Stare Decisis And Constitutional Text, Jonathan F. Mitchell 2011 George Mason University School of Law

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the ...


Section 3: Criminal, Institute of Bill of Rights Law at The College of William & Mary School of Law 2011 Institute of Bill of Rights Law at The College of William & Mary School of Law

Section 3: Criminal, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 5: Business, Institute of Bill of Rights Law at The College of William & Mary School of Law 2011 Institute of Bill of Rights Law at The College of William & Mary School of Law

Section 5: Business, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 2: Structure, Institute of Bill of Rights Law at The College of William & Mary School of Law 2011 Institute of Bill of Rights Law at The College of William & Mary School of Law

Section 2: Structure, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 1: Moot Court: United States V. Jones, Institute of Bill of Rights Law at The College of William & Mary School of Law 2011 Institute of Bill of Rights Law at The College of William & Mary School of Law

Section 1: Moot Court: United States V. Jones, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


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