Law Commons^™

Embracing Descent: The Bankruptcy Of A Business Paradigm For Conceptualizing And Regulating The Legal Profession, Jeffrey W. Stempel

Scholarly Works

Lawyers are said to travel in packs, or at least pairs, and in the popular parlance are often compared to hoards of locusts, herds of cattle, or unruly mobs. However, at least for purposes of assessing concerns with professionalism currently surrounding the bar and the public, whether attorneys are more or less social than other human animals does not matter. My point is simply that lawyers are social beings; like other human beings in social and occupational groups, lawyers behave largely in accordance with group norms, in much the same way peer pressure led Julian English toward juvenile delinquency in …

Synopsis Of The Report Of The Second Circuit Task Force On Gender, Racial And Ethnic Fairness In The Courts, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

The recent Report of the Second Circuit Task Force on Gender, Racial, and Ethnic Fairness in the Courts (‘Taskforce‘) observes “some biased conduct toward parties and witnesses based on gender or race or ethnicity has occurred on the part of both judges and lawyers.” “Biased conduct toward lawyers based on gender or race or ethnicity, has occurred to a greater degree.” The Report concludes that such conduct is unacceptable and admonishes all participants in the Second Circuit courts to guard against it. The purpose of this Perspective is to review several sections of the Report. The Perspective is written from …

A Tribute To Judge Frank X. Altimari, Roger J. Miner '56

Judges

No abstract provided.

Interpretation Of The Kentucky Rules Of Evidence—What Happened To The Common Law?, Robert G. Lawson

Law Faculty Scholarly Articles

The Kentucky Rules of Evidence, which became effective on July 1, 1992, dramatically transformed the method by which lawyers and judges address evidence issues. Before the adoption of the Rules, the law of evidence consisted mostly of a vast collection of common law rulings, accumulated over two centuries and inaccessible to lawyers and judges for all practical purposes. In addressing an evidence issue, participants had to first deal with the problem of "finding" the law-distilling from a morass of conflicting common law precedents the ones applicable to the issue at hand, a task regularly producing contention rather than agreement and, …

Drug Treatment Courts: Evolution, Evaluation, And Future Directions, Gloria Danziger, Jeffrey Kuhn

All Faculty Scholarship

No abstract provided.

The Scope Of Private Securities Litigation: In Search Of Liability Standards For Secondary Defendants, Jill E. Fisch

All Faculty Scholarship

Recent federal court decisions have struggled to apply the Supreme Court's decision in Central Bank v. First Interstate to determine when outside professionals should be held liable as primary violators under section IO(b) of the Securities Exchange Act. In keeping with the Court's current interpretive methodology, Central Bank and its progeny employ a textualist approach. In this Article, Professor Fisch argues that literal textualism is an inappropriate approach for interpreting the federal securities laws generally and misguided in light of legislative developments post-dating the Central Bank decision. Instead, Professor Fisch advocates an approach that weighs Congress 's recent endorsement of …

The Effect Of Offer-Of-Settlement Rules On The Terms Of Settlement, Lucian Arye Bebchuk, Howard F. Chang

All Faculty Scholarship

No abstract provided.

The Architecture Of Judicial Independence, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Cleaning Up The Legal Debris Left In The Wake Of Whitewater, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

We have learned a lot in the twenty-five years since Watergate. During the scandal itself, we confirmed that the President is not above the law. We learned that executive privilege is constitutionally protected, but that it is not absolute. And, we learned that a need exists for an independent counsel, but that we don't necessarily need a statute to establish such an office.

Watergate and the Nixon era spawned several so-called "reforms": the establishment of the independent counsel statute, presidential immunity from civil damage suits for official action, and public ownership of the President's official papers. It is interesting and …

Breard, Printz, And The Treaty Power, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article considers whether the anti-commandeering principle of New York v. United States and Printz v. United States applies to exercises of the Treaty Power. It illustrates the problem with an analysis of the treaty provision involved in Breard v. Greene, 118 S. Ct. 1352 (1998), which requires state officials to notify certain aliens they arrest that they have a right to consult with their consul. Whether exercises of the treaty power are subject to the commandeering prohibition depends on the resolution of two ambiguities in the Supreme Court's anti-commandeering doctrine. The first concerns the distinction between commandeering and …

Liberalism And Abortion, Robin West

Georgetown Law Faculty Publications and Other Works

First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My Consent: Securing the Constitutional Right to Abortion Funding, Eileen McDonagh has sought to redefine drastically our understanding of the still deeply contested right to an abortion, and hence, of the nature of the constitutional protections which in her view this embattled right deserves. Her argument is complicated and subtle, but its basic thrust can be readily …

Jury Reform At The End Of The Century: Real Agreement, Real Changes, Phoebe C. Ellsworth

Articles

Complaints about the jury system and calls for its reform are nothing new-they have probably existed as long as the jury system itself. Warren Burger called for the reform of the civil jury in 1971'; in 1905 William Howard Taft decried the contemporary tendency "to exalt the jury's power beyond anything which is wise or prudent .... ,2 Judges complain to judges, lawyers complain to lawyers, legal academics write articles about the jury for other legal academics, social scientists report their research on juries to other social scientists, and the jurors themselves go home and express their exasperation to their …

California's Sexually Violent Predator Act: The Role Of Psychiatrists, Courts, And Medical Determinations In Confining Sex Offenders, Carolyn B. Ramsey

Publications

No abstract provided.

Jurisdiction To Adjudicate: End Of The Century Or Beginning Of The Millennium?, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

The Rome Treaty For An International Criminal Court: A Flawed But Essential First Step, Douglass Cassel

Journal Articles

Last summer more than 150 UN member states met in Rome to negotiate a treaty to establish a permanent international criminal court. Following years of preparatory meetings in New York and five weeks of negotiation in Rome, they voted 120 to seven, with twenty-one abstentions, for a treaty to establish an International Criminal Court (ICC) to hear future cases of genocide, serious war crimes and crimes against humanity. Most of the world's democracies-western and central Europe together with countries like Argentina, Australia, Canada, Costa Rica, South Africa and South Korea-supported the ICC. Only two democracies-the U.S. and Israel-voted against, thereby …

Do Agency Employees Have A Right To Union Representation When Questioned By An Oig Investigator? An Analysis Of Nasa V. Flra, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case NASA v. Federal Labor Relations Authority, 527 U.S. 229 (1999). The author expected the case to raise the question of whether the Office of Inspector General within a federal agency is acting as a representative of the agency when it conducts investigatory interviews of agency employees, so as to trigger the employee's right to union representation.

Gazing Into The Crystal Ball: Reflections On The Standards State Judges Should Use To Ascertain Federal Law, Donald H. Zeigler

Articles & Chapters

No abstract provided.

A Little Theory Is A Dangerous Thing: The Myth Of Adjudicative Retroactivity, Kermit Roosevelt Iii

All Faculty Scholarship

The article analyzes the question of the retroactive effect of judicial decisions. It surveys the history of retroactivity doctrine to demonstrate that the current approach to retroactivity jurisprudence is a consequence of the Warren Court's adoption of the principle that parties should be governed by the law in effect at the time of their actions. This principle leads to a theoretical framework that suffers from serious difficulties. In particular, it is unable to distinguish between cases presented on direct and collateral review, and consequently unable to reach a satisfactory treatment of habeas petitions based on changes in law. The article …

Chevron, Cooperative Federalism, And Telecommunications Reform, Philip J. Weiser

Publications

No abstract provided.

Judicial Review Of Fda Preemption Determinations, Amanda Frost

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Policy Watch: Developments In Antitrust Economics, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

During the late 1970s and 1980s, the federal courts transformed antitrust rules and the federal enforcement agencies altered their case selection criteria in response to theories developed by industrial organization economists. These developments in economic thinking, often associated with the Chicago school, led current antitrust law and practice toward a greater skepticism about the relationship between market concentration and market power and a greater recognition of the possible efficiency-enhancing role of vertical agreements (contracts between firms and their customers or suppliers) than was present in the 1950s and 1960s.This survey will begin where those developments leave off by highlighting more …

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

Articles

In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicice prosecution in the general and capital prosecution in particular - that in this respect, as in others, death distorts and undermines the course of the law.

Constitutions And Spontaneous Orders: A Response To Professor Mcginnis, Adam C. Pritchard, Todd J. Zywicki

Articles

Professor John McGinnis has written a perceptive and provocative comment on our economic analysis of the role of tradition in constitutional interpretation.1 A brief summary of our areas of agreement and disagreement may help set the stage for this response. It appears that Professor McGinnis substantially agrees with the two central propositions of our article. First, he appears to agree with our definition of efficient traditions as those evolving over long periods of time from decentralized processes.2 Second, he explicitly agrees that Justices Scalia and Souter have adopted sub-optimal models of tradition because they rely on sources that lack the …

The Dynamics And Determinants Of The Decision To Grant En Banc Review, Tracey E. George

Vanderbilt Law School Faculty Publications

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article …

Sincere And Strategic Voting Norms On Multimember Courts, Evan H. Caminker

Articles

In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment.' In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court.

Dna Database Searches And The Legal Consumption Of Scientific Evidence, Peter Donnelly, Richard D. Friedman

Articles

DNA evidence has transformed the proof of identity in criminal litigation, but it has also introduced daunting problems of statistical analysis into the process. In this Article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council ("NRC"), each of which has carried great authority with the American courts on …

Lilly V. Virginia: A Chance To Reconceptualize The Confrontation Right, Richard D. Friedman

Articles

In Lilly v. Virginia, the Supreme Court once again has the opportunity to grapple with the meaning of the Confrontation Clause of the Sixth Amendmel).t. The basic facts of Lilly are simple, for they present the ageold problem of accomplice confessions. Three men, Gary Barker and Ben and Mark Lilly, went on a crime spree, during which one of them shot to death a young man they had robbed and kidnaped. Ben Lilly was charged with being the triggerman, and Barker testified to that effect at Ben's trial. Mark did not testify. But Mark had made a statement to the …