Law Commons^™

The Anti-Plaintiff Pending Amendments To The Federal Rules Of Civil Procedure And The Pro-Defendant Composition Of The Federal Rulemaking Committees, Patricia W. Moore

Faculty Articles

For decades, the Civil Rules Advisory Committee (Advisory Committee) has garnered passage of amendments to the Federal Rules of Civil Procedure (FRCP) that have incrementally narrowed discovery in the service of the Advisory Committee's stated effort to combat the alleged "cost and delay" of civil litigation. More of the same are on their way to Congress now. In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, these pending amendments hurt David and help Goliath more than any previous round of amendments to the FRCP. The individual versus institution case, not coincidentally, is the most common …

The Civil Caseload Of The Federal District Courts, Patricia W. Moore

Faculty Articles

This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in …

Prior Sexual Misconduct Evidence In State Courts: Constitutional And Common Law Challenges, Michael L. Smith

Faculty Articles

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant's propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal …

Standards Of Legitimacy In Criminal Negotiations, Wesley Macneil Oliver, Rishi Batra

Faculty Articles

Scholarship on negotiation theory and practice is rich and well developed. Almost no work has been done, however, to translate to the criminal context the lessons learned about negotiation from extensive empirical study using the disciplines of economics, game theory, and psychology. This Article suggests that defense lawyers in criminal negotiations can employ tools frequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to …

Regulating Law Enforcement's Use Of Drones: The Need For State Legislation, Michael L. Smith

Faculty Articles

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on drones tends to focus on how courts, rather than legislative bodies, can restrict the government's use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state …

Developing Environmental Law For All Citizens, Patricia W. Moore, Eliana S. Pereira, Gillian Duggin

Faculty Articles

On 20 May 2002, Timor-Leste became a country. Its Constitution, which came into force on 20 May 2002, is based on civil law, with many similarities to Portugal's legal system. The Constitution also laid the foundation for environmental law, which the government has been developing ever since. This overview of the development of environmental law in Timor-Leste describes the constitutional provisions that are the source of environmental law in the country; presents the policy basis for environmental law; reviews the legal instruments governing the environment that the government has adopted since 2002; introduces draft laws under consideration at the end …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …