Law Commons^™

My Name Is Not 'Respondent Mother': The Need For Procedural Justice In Child Welfare Cases, Vivek S. Sankaran

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You are a parent whose children are in foster care. Your court hearing is today, after which you hope your children will return home. Upon leaving the bus, you wait in line to enter the court. At the metal detectors you’re told you can’t bring your cell phone inside. With no storage options, you hide your phone in the bushes, hoping it will be there when you return.

Improving Access To Justice In State Courts With Platform Technology, J. J. Prescott

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Access to justice often equates to access to state courts, and for millions of Americans, using state courts to resolve their disputes—often with the government—is a real challenge. Reforms are regularly proposed in the hopes of improving the situation (e.g., better legal aid), but until recently a significant part of the problem has been structural. Using state courts today for all but the simplest of legal transactions entails at the very least traveling to a courthouse and meeting with a decision maker in person and in a one-on-one setting. Even minimally effective access, therefore, requires time, transportation, and very often …

Officiating Removal, Leah Litman

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For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants' representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations' representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but …

Arguing On The Side Of Culture, Debra Chopp, Robert Ortega, Frank E. Vandervort

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Human service professions are increasingly acknowledging the ubiquitous role of culture in the human experience. This is evidenced in professional codes of ethics, professional school accreditation standards, licensing, and in some cases through state statutes regarding professional codes of conduct. Across professions, concerted efforts are being made to infuse standards of culturally responsive practice into curricular content and training. For example, instruction on cultural competence is expected in business and medical education.1 Psychology and social work both require their professionals to exercise cultural competence. When it comes to cultural competence/ though, the legal codes of ethics and professional practice are …

Response: Means, Ends, And Institutions, Charlton C. Copeland

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No abstract provided.

Crow Dog Vs. Spotted Tail: Case Closed, Timothy Connors, Vivek Sankaran

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In 1868, Chief Spotted Tail signed a United States government treaty with an X. Spotted Tail was a member of the Brule Sioux Tribe, related by marriage to Crazy Horse. The government treaty recognized the Black Hills as part of the Great Sioux reservation. As such, exclusive use of the Black Hills by the Sioux people was guaranteed. Monroe, Michigan, native Gen. George Custer changed all that. In 1874, he led an expedition into that protected land, announced the discovery of gold, and the rush of prospectors followed. Within two years, Custer attacked at Little Big Horn and met his …

A Structural Vision Of Habeas Corpus, Eve Brensike Primus

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As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …

Another Voice For The 'Dialogue': Federal Courts As A Litigation Course, Arthur D. Hellman

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The traditional course in "Federal Courts" - built on the model established by the great Hart and Wechsler casebook - focuses on issues of federalism, separation of powers, and institutional competence. That focus provides a powerful intellectual model for organizing the materials that make up the field of study, and it is hard to imagine anyone teaching a Federal Courts course today without drawing heavily on that model. But the traditional model is deficient in one important respect. Most of the students who take a Federal Courts course do so because they think it will help them to practice law …

The Upc Addresses The Class-Gift And Intestacy Rights Of Children Of Assisted Reproduction Technologies, Lawrence W. Waggoner, Sheldon F. Kurtz

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Editor's Synopsis: Recent years' advances in assisted reproduction technology have enabled the conception of children in ways in addition to the traditional way. The Uniform Probate Code was amended last year to address the status of children born from assisted reproductive technologies for intestacy and class-gift purposes. This article discusses the relevant UPC provisions and offers several hypothetical cases to show how they operate. The article concludes expressing the hope that states will consider the new UPC approach.

Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus

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Ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal postconviction petitions. This is hardly surprising given reports of trial attorneys who refuse to investigate their cases before trial, never meet with their clients before the day of trial, and fail to file any motions or object to inadmissible evidence offered at trial. Unfortunately, the current structure of indigent defense funding makes it impossible for many public defenders to provide effective representation to their clients.

Craft And Power, Carl E. Schneider

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Oliver Wendell Holmes-a great judge-said that "the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees." Appellate courts command that force in ways that principle and practicalities leave little fettered. Judges must fetter themselves, not least by honoring the judicial duty of craftsmanship. That duty obliges courts to respect procedural rules, for they keep courts within their bounds and promote fair and sound decisions. That duty obliges courts to analyze legal authority scrupulously, since judicial legitimacy …

Innovation Held Hostage: Has Federal Intervention Stifled Efforts To Reform The Child Welfare System?, Vivek Sankaran

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The past thirty years have been marked by an increased federalization of child welfare law, which, like other areas of family law, traditionally remained within the sole purview of state legislatures. Despite increased oversight by the federal government, outcomes for foster children remain unacceptably poor The number of children in foster care has more than doubled over the past twenty-five years and reports of suspected maltreatment have skyrocketed. Children continue to stay too long in care and have too many placements. Case workers assigned to work with families and attorneys representing parents and children are overwhelmed and rarely provide meaningful …

Out Of State And Out Of Luck: The Treatment Of Non-Custodial Parents Under The Interstate Compact On The Placement Of Children, Vivek Sankaran

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Courts handling child abuse and neglect cases face a daunting task. Within one to three days after a child is removed from his home, a court hearing must be held to determine whether court intervention and continued removal of the child is necessary. At this hearing, the court must sort through and evaluate the state's allegations and assess the various risks posed by placing the child in foster care or returning the child to one or both of his parents. Courts must weigh the heavy emphasis the law places on preserving the family unit against the equally paramount mandate to …

Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman

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No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.

I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses …

The Securities Litigation Uniform Standards Act Of 1998: The Sun Sets On California's Blue Sky Laws, David M. Lavine, Adam C. Pritchard

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It is often said that California sets the pace for changes in America's tastes. Trends established in California often find their way into the heartland, having a profound effect on our nation's cultural scene. Nouvelle cuisine, the dialect of the Valley Girl and rollerblading all have their genesis on the West Coast. The most recent trend to emerge from California, instead of catching on in the rest of the country, has been stopped dead in its tracks by a legislative rebuke from Washington, D.C. California's latest, albeit short-lived, contribution to the nation was a migration of securities fraud class actions …

State Responses To Task Force Reports On Race And Ethnic Bias In The Courts, Suellyn Scarnecchia

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While several states have embarked on studies of race and ethnic bias in their courts, Minnesota is only the sixth to publish its report to date. As Minnesota joins the ranks of states with published reports, it is worthwhile to assess the impact of the five earlier published reports from other states. Final reports have been published in Michigan (1989), Washington (1990), New York (1991), Florida (1991) and New Jersey (1992). The published reports make findings and provide several specific recommendations for change. This article will review the published findings and recommendations of the task forces and will discuss the …

The Twilight Of Employment At Will? An Update, Theodore J. St. Antoine

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A 55-year-old white male, who has spent thirty years working his way up to a responsible middle-management position in his company, is asked for his resignation. No reason given. Even though the employee could demonstrate that he still is qualified to perform his duties, the employer's action in dismissing him would be quite unexceptionable under the conventional American common law doctrine of employment at will. The situation could be even more disturbing. If the employment-at-will principle were allowed its full scope, an employee would have no recourse even if he knew he was being discharged because he had refused to …

The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein

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In this article, which both summarizes and updates an extensively footnoted article published last year ("Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?" 130 University of Pennsylvania Law Rmiew 521 (1982)), we report on this new case law and discuss the analytic framework that we think it suggests and requires.

Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner

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Although it has been "axiomatic" that our courts do not entertain suits to reform wills on the ground of mistake, appellate courts in California, New Jersey, and New York have decided cases within the last five years that may presage the abandonment of the ancient "no-reformation" rule. The new cases do not purport to make this fundamental doctrinal change, although the California Court of Appeal in Estate of Taff and the New Jersey Supreme Court in Engle v. Siegel did expressly disclaim a related rule, sometimes called the "plain meaning" rule. That rule, which hereafter we will call the "no-extrinsic-evidence …

Legislation In Vague Or General Terms, Ralph W. Aigler

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FOR some reason, probably in part the increasing complexity of our life and relationships, but more largely, perhaps, the growing tendency to regulate everybody and everything by positive law, the courts have been called upon with increasing frequency to pass upon the effectiveness of statutes and ordinances phrased in indefinite terms. In a very interesting and valuable paper, Professor Freund has pointed out the weakness and strength, on the one hand, of legislation in general terms, and on the other hand, legislation in which the rule of conduct is attempted to be laid down with precision. His interest apparently lay …

Challenges To The Array, Edson R. Sunderland

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Trial by jury demands impartial jurors as the indispensable basis for public confidence. And the first requisite for obtaining impartiality is indifference on the part of those who select the jury. This was fully recognized at the common law, and ever since the days when jurors ceased to be witnesses and became triers of facts, it was a good objection to the entire panel that the sheriff was not indifferent between the parties in the selection and summoning of the jury. Prejudice on the part of individual jurors could be met by challenges to the polls, but when favor lurked …

Operation And Effect Of Recording, Ralph W. Aigler

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While the operation of the recording acts is not uncommonly said to result in a preference of the earlier recorded instrument on the ground that under the circumstances the later grantee takes "with notice," the true view in the normal case would seem to be that the earlier grantee is preferred because priority in time gives priority in right-and by recording, he has done all that is required to preserve that favored position. Recording does not ordinarily give preference, it merely safeguards priority. Reference is here made to the normal case because it is, of course, true that there are …

Privity Of Contract And Tort Liability, Herbert F. Goodrich

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Two parties, A and B, make a contract whereby B undertakes to perform certain services for A. He performs his task in a negligent manner, and as a consequence C, a third party, suffers injury. Has C rights against B?

Reinstatement Of Disbarred Attorney, Edson R. Sunderland

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The petitioner asked to be reinstated. The court, excepting Justice Fellows, who concurred in the result but expressed no opinion, said they would be glad to reinstate him but for the fact that he was a non-resident, which in their opinion made him ineligible, but they gave their endorsement of his good character by vacating the order of disbarment. The questions which occur are these: 1. Did the court have the power to vacate its order of disbarment after the time for opening, amending or vacating judgments had passed? 2. Did the vacation of the order of disbarment operate ipso …

Public Policy And Personal Opinion, John B. Waite

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THE real relation of economics to law, only recently acquiring positive recognition, is illuminated by the varying decisions in regard to attempted restrictions on the enjoyment of personal property.

Mutual Wills, Edwin C. Goddard

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SO LATE as 1822 Sir John Nicholl is reported to have said in Hobson v. Blackburn, that a mutual, or conjoint will is an instrument "unknown to the testamentary law of this country; or, in other words, that it is upknown, as a will, to the law of this country at all. It may, for aught that I know, be valid as a compact." In Darlington v. "Pulteney, Lord MANSFIELD said, "there cannot be a joint will." Following these distinguished and learned judges, Jarman and Williams in their classical treatises accepted the statement of Sir John, and some early American …

Extraterritorial Effect Of The Equitable Decree, Willard T. Barbour

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ANYONE whom the study of equity has led into the by-paths of V Canon Law will recall that the Sext ends with a splendid array of imposing maxims, not improbably the source of the Latin maxims with which every lawyer is familiar. The inveterate habit formed by the ecclesiastics of expressing a legal principle in a short and crisp formula persisted when they came into the courts of law and is peculiarly in evidence among the chancellors of the fifteenth century. What may at first have been merely casual became through repetition a habit and the result has been to …

Wills - Revocation By Judicial Legislation, Edwin C. Goddard

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Wills and their revocation as we know them are peculiarly the result of the actions and reactions of our common and statute law. We are sufficiently familiar with statutes, declaratory of the common law, in derogation thereof, and creating entirely new principles of law. We also know law the result of no legislative act. Whatever may or may not be admitted about court-made law, we see the undoubted fact that the great body of our law is the outgrowth of decisions applying to new conditions principles of law found in analogous cases, whereby the common law is able to adapt …

Effect At The Situs Rei, Of A Decree Ordering Conveyance Of Foreign Land, Edgar N. Durfee

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In a recent article in this Review, Prof. Willard Barbour discussed the question indicated by the above title. His cbnclusions may be-briefly slated as follows: that such a decree of a competent court having jurisdiction of the person of the defendant creates a personal obligation upon the defendant which a court of equity at the situs should enforce just as it would a contract or trust concerning this land made in the foreign jurisdiction: and that, as between the States of this Union, the "full faith and credit" clause of the Constitution makes such enforcement of the foreign decree obligatory. …

Is A Contract Necessary To Create An Effective Escrow?, Ralph W. Aigler

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WHERE land has been sold and both parties are desirous of protecting themselves pending full payment of the purchase price, there are two common ways of accomplishing their purpose without any change in legal ownership. There may be (1) a contract of sale properly evidenced so as to be enforceable, and (2) a deed executed by the vendor and placed "in escrow." Sometimes one method is preferred, sometimes the other. If the former is adopted, it is, of course, vitally important that the contract comply with the formal requirements of the law; in the latter there has been some difference …