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Articles 691 - 720 of 7283
Full-Text Articles in Law
Solving The Procedural Puzzles Of Texas’ Fetal-Heartbeat Law And Its Imitators: The Potential For Defensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman
Solving The Procedural Puzzles Of Texas’ Fetal-Heartbeat Law And Its Imitators: The Potential For Defensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman
Faculty Publications
Texas' Fetal Heartbeat Act, enacted in 2021 as Senate Bill 8, prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.
In a series of articles, we explore how SB8's exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law's constitutional validity and obtaining …
Resorbing Patent Law's Kessler Cat Into The General Law Of Preclusion, Dennis D. Crouch, Homayoon Rafatijo
Resorbing Patent Law's Kessler Cat Into The General Law Of Preclusion, Dennis D. Crouch, Homayoon Rafatijo
Faculty Publications
It has become exceedingly common in our legal system that courts, in the guise of respect for precedent, compound upon errors. Legal precedents are written documents, but "[t]he reality we can put into words is never reality itself." As such, we seldom find a court decision that embodies the entire legal reality regarding the questions presented. In this respect, the legal system inherently suffers from a lack of what mathematicians call completeness. Each decision gives rise to countless inferences because what lower courts observe by reading the precedent is not the entire legal reality but an incomplete reality exposed to …
State Legislative Update, Katey Peters, Caleb Rutledge, Tim Richard, Joel Smith
State Legislative Update, Katey Peters, Caleb Rutledge, Tim Richard, Joel Smith
Journal of Dispute Resolution
The State Legislative Update is compiled and written annually by the Journal of Dispute Resolution’s Associate Members under the direction of the Associate Editor in Chief. It is designed to provide readers with a listing of pertinent legislation affecting the field of alternative dispute resolution (“ADR”) and a more detailed look at certain bills because of their importance or novelty within the field. This year’s State Legislative Update is especially important because the operations of state legislatures were altered due to the COVID-19 Pandemic.**
In Words Of The Pandemic, Arbitration Jurisprudence Needs A Ventilator, Bartholomew L. Mcleay
In Words Of The Pandemic, Arbitration Jurisprudence Needs A Ventilator, Bartholomew L. Mcleay
Journal of Dispute Resolution
The COVID-19 pandemic and arbitration share a few chronic symptoms. There are conflicting opinions about the standards for governing rulemaking, a debate on whether state policy or federal authority should control, and questions about the jurisdiction and neutrality of decisionmakers responsible for providing solutions. For those seeking review of an arbitration award today, like the current health environment, the situation is disconcerting. No herd immunity or PPE exists to protect challengers against the legal contagion spreading through the arbitration review process.
Public Schools To Public Services, Laura Wilcoxon
Public Schools To Public Services, Laura Wilcoxon
Faculty Publications
No abstract provided.
Addressing Asian (In)Visiblity In The Academy, Shruti Rana, Cyra Akila Choudhury
Addressing Asian (In)Visiblity In The Academy, Shruti Rana, Cyra Akila Choudhury
Faculty Publications
To be Asian American in the legal academy is to be caught between a paradox and a dichotomy, with both marked by silencing and erasure. The paradox exists within the term "Asian American" itself, as "'Asian' and 'American' have historically been posed as antithetical" identities in U.S. history and jurisprudence. On one side is a representation of unassimilable perpetual foreignness with Asian bodies targeted for violence and unequal protection of the law often justified by their perceived threat to national security. On the other is the lure of assimilation, where the model minority myth offers a purported path into acceptance …
Clouded Precedent: Tandon V. Newsom And Its Implications For The Shadow Docket, Alexander Gouzoules
Clouded Precedent: Tandon V. Newsom And Its Implications For The Shadow Docket, Alexander Gouzoules
Faculty Publications
The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.
A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free …
The Fourth National Guardianship: An Introduction, David M. English
The Fourth National Guardianship: An Introduction, David M. English
Faculty Publications
This issue of the Syracuse Law Review contains the proceedings of the Fourth National Guardianship Summit, an interdisciplinary online conference with some 125 participants which was held in May 2021 and hosted by the Syracuse University College of Law. In addition to this Introduction, this issue of the Law Review contains the Recommendations approved by the Summit attendees, and the articles prepared for the Summit. The theme of the Fourth Summit was Maximizing Autonomy and Ensuring Accountability. The Recommendations fit this theme, including Recommendations to enhance the rights of persons subject to guardianship, to improve and increase the use of …
Food, Freedom, Fairness, And The Family Farm, Robin M. Rotman, Sophie Mendelson
Food, Freedom, Fairness, And The Family Farm, Robin M. Rotman, Sophie Mendelson
Faculty Publications
The concept of the “family farm” holds powerful sway within the American narrative, embodying both nostalgia for an imagined past and anxiety for a future perceived to be under threat. Since the founding of the United States, this cultural ideal has been invoked in support of a rosy vision of agrarian democracy while obscuring the ways in which the U.S. Department of Agriculture’s codified definition of “family farm” has unfairly aggregated advantages for the benefit of a particular kind of family (nuclear) and farmer (white, male, straight). At the same time, consumers are misled by an under-interrogated conflation of family …
New York's Requirements For Contractual Definiteness With Application To The Formation Of Investment Vehicles, Royce De R. Barondes
New York's Requirements For Contractual Definiteness With Application To The Formation Of Investment Vehicles, Royce De R. Barondes
Faculty Publications
A review of 82 modern New York cases reveals an unexpected frequency of authority requiring contractual definiteness as to what may reasonably appear to be minor terms.
Illustrative are cases holding inadequately definite ordinary ways preliminary agreements may express compensation on a percentage of net basis. Other unexpected authority (i) is less willing than expected to allow subsequent actions to provide sufficient definiteness to initially indefinite agreements and (ii) denies the enforceability of confidentiality provisions and a right of first refusal.
The survey includes some unexpected support for contracts specifying a plausibly material portion of the consideration with inadequate definiteness …
State Rejection Of Federal Law, Thomas B. Bennett
State Rejection Of Federal Law, Thomas B. Bennett
Faculty Publications
Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …
Charles Dickens' Novels In The Courts, Douglas E. Abrams
Charles Dickens' Novels In The Courts, Douglas E. Abrams
Faculty Publications
This article examines written judicial opinions that contain references to novels by Charles Dickens (1812-1870), the British novelist and social critic who is widely regarded as one of the greatest writers of the Victorian Age. Americans today still read Dickens’ best-known novels, and the U.S. Supreme Court and the lower federal and state courts have cited and quoted from them.
“They’Re Just Playing”: Why Child Social Media Stars Need Enhanced Coogan Protections To Save Them From Their Parents, Nila Mcginnis
“They’Re Just Playing”: Why Child Social Media Stars Need Enhanced Coogan Protections To Save Them From Their Parents, Nila Mcginnis
Missouri Law Review
In May 2020, American social media influencer Myka Stauffer, who boasted almost one million followers across various internet platforms at the peak of her career, announced that she and her husband were “rehoming” their autistic son, Huxley, whom they adopted from China three years prior. Over the course of their journey to adopt Huxley, the Stauffers monetized dozens of posts and videos across several channels and accounts on YouTube and Instagram, prominently featuring Huxley in advertisements for brands like Dreft, Danimals, and Playtex Baby. The Stauffers, who were also accused of duct taping Huxley’s hands to stop him from sucking …
Textualism: Definition, And 20 Reasons Why Textualism Is Preferable To Other Methods Of Statutory Interpretation, Caroline Bermeo Newcombe
Textualism: Definition, And 20 Reasons Why Textualism Is Preferable To Other Methods Of Statutory Interpretation, Caroline Bermeo Newcombe
Missouri Law Review
When Justice Elena Kagan announced that “we’re all textualists now,” she was referring to a method of statutory interpretation known as textualism. Textualism is one of four methods of statutory interpretation. The other methods are: intentionalism, purposivism, and legal pragmatism. During the confirmation process, Justice Amy Coney Barrett was asked by Senators whether she was committed to a “textualist theory” of statutory interpretation, and whether she shared the judicial philosophy of Justice Scalia. But why is the method of statutory interpretation that a judge chooses so important? It is important because most cases that come before federal courts today involve …
Liability Insurance And Contractual Aspects Of Settlement, Douglas R. Richmond
Liability Insurance And Contractual Aspects Of Settlement, Douglas R. Richmond
Missouri Law Review
Most civil litigation settles. Many settlements are paid by liability insurers following the negotiation of settlement agreements by the parties’ lawyers. Settlement agreements are contracts, and their interpretation and enforcement are therefore governed by contract law principles. The essential elements of a contract are offer, acceptance, and consideration. In the liability insurance context as elsewhere, contract disputes connected to settlements typically center on either offer or acceptance. To be valid, a settlement offer must be capable of acceptance. The offer must be definite, and its material terms must be reasonably certain. When it comes to accepting a settlement offer, the …
Abuse Just Out Of Frame: The Impact Of Online Dispute Resolution On Domestic Violence, Haley Benson
Abuse Just Out Of Frame: The Impact Of Online Dispute Resolution On Domestic Violence, Haley Benson
Journal of Dispute Resolution
“This is a[n] issue we didn’t have when we had live court.” It was a chilling day for prosecutor Deborah Davis when she discovered a victim of domestic violence was in the same apartment as her abuser during a session of Zoom court. In this case, the survivor had done the hardest part; she had made the decision to prosecute her abuser. As court began, Davis saw that her client had a similar virtual background to the alleged abuser and noticed that her client was looking away from the camera while answering questions. This prompted Davis to request that police …
Charting A Middle Course For Court-Connected Mediation, John Lande
Charting A Middle Course For Court-Connected Mediation, John Lande
Journal of Dispute Resolution
Court-connected mediation programs have produced important benefits for parties, practitioners, courts, and society generally. These programs have helped lawyers settle tough cases and generally manage their workload while their clients retain the power to litigate if they cannot reach an acceptable agreement. Courts have created and enforced rules to protect the integrity of process so that parties’ time and money in mediation are well spent.
Questions Of Arbitrability In The World: Comparing The Jurisprudence Of The United States And India, Henry Sivils
Questions Of Arbitrability In The World: Comparing The Jurisprudence Of The United States And India, Henry Sivils
Journal of Dispute Resolution
If a matter is not arbitrable, then it may not be arbitrated.2 Arbitrability, generally, refers to the authority that an arbitrator possesses to decide a matter.3 A challenge to that authority is considered a “question of arbitrability.”4 There are three types of questions of arbitrability: (1) substantive challenges that a dispute is not arbitrable under the terms of an arbitration clause; (2) the contention that, despite substantive arbitrability, procedural circumstances exist that prevent arbitration; and (3) “post-award attacks on an arbitrator’s decision.”5 Of those three, “whether a matter is arbitrable under a given arbitration clause” has had recent developments in …
Preserving The Relationship: Addressing The Covid Eviction Crisis Through Equitable Mediation, Cade Jones
Preserving The Relationship: Addressing The Covid Eviction Crisis Through Equitable Mediation, Cade Jones
Journal of Dispute Resolution
Not only has the coronavirus pandemic (“COVID-19”) has taken many lives, another substantial side effect are that many Americans are at risk of eviction because of the current COVID-19 pandemic. Since the pandemic began, more than 20 million renters have suffered job loss because of COVID-19. One particular aspect of daily life the pandemic has impacted is landlord-tenant relationships because tenants cannot make rent payments to the landlord which then leads to a landlord filing for bankruptcy. With tenants not making rent payments due to job loss, it has produced a detriment with landlord-tenant relationships that could produce a ripple …
Restorative Justice: An Alternative Dispute Resolution Approach To Criminal Behavior, Kayla Welch
Restorative Justice: An Alternative Dispute Resolution Approach To Criminal Behavior, Kayla Welch
Journal of Dispute Resolution
Beginning with the end of the Mass Prison Era in the late 1800s, Americans have looked for a better way to respond to crime and those who commit it. Since the Reformatory Era, the United States has swayed between punitive models based on either the Reformatory or Retributive theories. Despite the changes we have made, our criminal justice system suffers from long waiting periods for a trial, overburdened public defenders, overcrowded jails and prisons that often lead to unsafe conditions for the inmates and corrections officers, and many other problems.
Structural Precarity And Potential In Condominium Governance Design, Andrea Boyack
Structural Precarity And Potential In Condominium Governance Design, Andrea Boyack
Faculty Publications
In the early hours of June 24, 2021, half of Champlain Towers South Condominium, a thirteen-story multifamily building located in the Miami suburb of Surfside, collapsed without warning. The Miami Herald called the collapse “unprecedented” in that one wing “simply caved in––for no obvious reason.” The collapse killed ninety-eight people and was the deadliest multifamily building engineering failure in US history. After an arduous search and rescue and safely dismantling the rest of the structure, inquiries sought to determine why this deadly collapse happened. Who was to blame, and what could have been done differently?
Within six months of this …
Protective Orders And Limited Guardianships: Legal Tools For Sidelining Plenary Guardianship, David M. English, Nina Kohn
Protective Orders And Limited Guardianships: Legal Tools For Sidelining Plenary Guardianship, David M. English, Nina Kohn
Faculty Publications
By encouraging use of limited guardianships and protective orders instead of full guardianships, states can reduce the likelihood of unnecessarily stripping adults of their civil rights. Yet, although such less restrictive alternatives have long been available to most courts, in practice, their use remains limited and sporadic. This article argues that this lack of use suggests that it is not sufficient for the law to state a preference for these less restrictive alternatives, it must actually create systems that incentivize their use and actively discourage the use of full guardianships. This article then shows, using the Uniform Guardianship, Conservatorship, and …
Addressing Big Tech's Market Power: A Comparative Institutional Analysis, Thomas A. Lambert
Addressing Big Tech's Market Power: A Comparative Institutional Analysis, Thomas A. Lambert
Faculty Publications
This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union's Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established "Digital Markets Unit." After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context …