Law Commons^™

After The Flood: The Legacy Of The "Surge" Of Federal Immigration Appeals, Stacy Caplow

Stacy Caplow

For many years, the big news in United States Courts of Appeal was the skyrocketing immigration caseload. For Courts that traditionally had busy immigration dockets, the effect was tsunamic. One of those Circuits, the Second, instituted a nonargument calendar that, over the past five years, has enabled the Court to regain some control over its swollen docket. While this administrative strategy has rescued the Court from drowning, the flow of cases continues, somewhat abated, but with enduring force. The so-called surge had unanticipated consequences extending far beyond court management changes. As a result of their increased exposure to immigration cases …

Case-By-Case Adjudication And The Path Of The Law, Anthony Niblett

Anthony Niblett

How can a centrist president or governor best influence law through the appointment of judges? Imagine that there are two sitting judges and one of the positions becomes vacant. The other, veteran judge is on the extreme right, from the perspective of the executive, and the executive prefers centrist outcomes. Should the executive appoint a centrist or, instead, appoint a left-wing extremist who might offset the sitting, right-wing judge? Conventional wisdom holds that judges counteract, or balance, one another; that is, a left-wing appointment carries the best hope offsetting the existing, right-wing judge. Following this intuition, a moderate appointment would …

Rules, Standards, And The Attorney-Client Privilege: When Is The Privilege At-Issue In The Discovery Rule And Other Contexts?, Kenneth J. Duvall

Kenneth J Duvall

Striking the right balance between a robust attorney-client privilege and a judicial system that maximizes access to the best evidence has always been difficult. In recent decades, the privilege battles have in large part been waged over one particular exception to the privilege: the “at-issue” carve-out. Under this exception, the holders of the privilege waive it when they place otherwise privileged communications at issue in the litigation not through outright consent but instead through their conduct. The troubling question has therefore been: what actions suffice to place communications at issue? Privilege defenders consider confidential communications to be at issue only …

No More Free Easements: Judicial Takings For Private Necessity, John Martinez

John Martinez

In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 130 S.Ct. 2592 (2010), the United States Supreme Court was one vote short of recognizing "judicial takings" as viable federal constitutional claims. If such claims become available, then we must identify with precision those circumstances in which judicial takings claims should apply. The full panoply of remedies--forced condemnation, injunction, and interim damages--must be considered. This article begins the discussion with what perhaps are the easy cases, in which governmental judicial conduct imposes a permanent physical occupation on private land based solely on the private necessity of the benefitted …

Philadelphia Lawyers: Policing The Law In Pennsylvania, Brian K. Pinaire, Milton Heumann, Christian Scarlett

Brian K. Pinaire

Unlike other professions within the Commonwealth, Pennsylvania attorneys “police” themselves, meaning that ethical infractions and ramifications of criminal convictions are addressed not by the government, but rather by disciplinary entities within the profession. Recent socio-legal and social science research has addressed the various statutory “collateral consequences” that attach to criminal convictions, but we know comparatively little about consequential discipline instituted outside the purview of the state. Based on an examination of 419 disciplinary dispositions from 2005-2009, as well as interviews with elites, this study provides the first-ever examination of the process and legal-political implications of peer-policing of the law in …

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …

Unconscious Bias In Legal Interpretation, Anup Malani, Ward Farnsowrth, Dustin Guzior

Anup Malani

What role do policy preferences play when a judge or any other reader decides what a statute or other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith—a claim that the judge or other decision-maker isn’t really earnest in trying to separate preference from judgment. This does not advance the discussion, and …

Justice Stevens, Religion, And Civil Society, Gregory P. Magarian

Gregory P. Magarian

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his 35 years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he flatly opposed exempting religious believers from laws that interfered with their religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with disdain for religion. In this article, Professor …

The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions -- For The Law And For The Litigants, Scott A. Moss

Scott A Moss

Each of the Supreme Court’s high school student speech cases reflected the social angst of its era. In 1965’s Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam war. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District v. Fraser and Hazelwood School District v. Kuhlmeier allowed censoring of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the 2000s rise of reality television and online self-exposure: …

The Vanishing Indian Returns, Kathryn Fort

Kathryn Fort

As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court's cobbled …

Making Sense Of Twombly, Edward D. Cavanagh

Edward D. Cavanagh

In May 2007, the Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Twombly has triggered an avalanche of motions to dismiss, which, in turn, have generated thousands of judicial opinions, some of them knee-jerk reactions, other more thoughtful. It also has generated a plethora of academic commentary, much of it shrill and negative. As the fourth anniversary of the Twombly decision approaches, the time for venting is over. Twombly is the law of the land; and the Supreme Court, having affirmed that decision in Iqbal, is not likely to shift course. …

Secondary Liability For Securities Fraud: Gatekeepers In State Court, Jennifer J. Johnson

Jennifer J Johnson

This paper discusses gatekeeper liability under state securities laws for professionals and other secondary participants in securities transactions. The recent economic meltdown exposed numerous Ponzi schemes from Madoff to Medical Capital that were no longer able to masquerade as profitable enterprises. When promoters of fraudulent ventures are unable to provide restitution to their victims, plaintiffs seek out other sources of repayment including professionals and other secondary participants in the transactions that precipitated their losses. Although most scholars agree that professionals can perform an important role in deterring securities fraud, scholarly opinions vary widely on the appropriate liability regime, if any, …