Law Commons^™

The End Of An Era? Federal Civil Procedure After The 2015 Amendments, Adam N. Steinman

Articles

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee's earlier proposals and supporting …

The Ideological Origins Of The Right To Counsel, John Felipe Acevedo

Articles

The defense counsel is a paramount actor in modem criminal trials, but this was not always the case. Indeed, the allowance of counsel to felony defendants can be traced to only a few hundred years ago, a relatively modem innovation in the area of legal history. This Essay examines the intellectual origins of the right to counsel, which it situates in the era of the English Revolution. Drawing on pamphlet literature, cases, and statutes from the seventeenth century in both England and North America, it argues that the right originated from a fear of unfairness brought on by a mistrust …

Partisan Balance Requirements In The Age Of New Formalism, Ronald J. Krotoszynski Jr., Johnjerica Hodge, Wesley W. Wintermyer

Articles

This Article considers the constitutional status of mandatory partisan balance requirements for presidential appointments to independent federal agencies. Since the 1880s, Congress routinely has included partisan balance requirements, along with fixed terms of office and "good cause" limitations on the President's removal power, as standard design elements in its template for independent federal agencies. Until recently, both federal courts and most legal scholars have assumed the constitutionality of such restrictions on the President's appointment power-and with good reason, given the ubiquity of partisan balance requirements and the executive branch's historical acquiescence to them. However, the Supreme Court's decision in Free …

Reconciling Privacy And Speech In The Era Of Big Data: A Comparative Legal Analysis, Ronald J. Krotoszynski Jr.

Articles

In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper's interest in publishing the photograph …

Transcending Formalism And Functionalism In Separation-Of-Powers Analysis: Reframing The Appointments Power After Noel Canning, Ronald J. Krotoszynski Jr.

Articles

Contemporary separation-of-powers theory and practice generally rely on two competing theories-formalism and functionalism-to frame and decide contested questions about the scope of each branch's constitutional power and authority. In some areas, this dichotomy works reasonably well and possesses significant explanatory force. But the dichotomy's utility is considerably less obvious in the context of the federal appointments process.

The Supreme Court's recent decision in National Labor Relations Board v. Noel Canning crisply demonstrates the limitations of formalism and functionalism in resolving separation-of-powers questions that equally implicate text, structure, and historical practice. Moreover, Justice Breyer's Noel Canning opinion deftly transcends the formalism-functionalism …

The Unitary Executive And The Plural Judiciary: On The Potential Virtues Of Decentralized Judicial Power, Ronald J. Krotoszynski Jr.

Articles

The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exercise of federal judicial power. The role of the state courts in enforcing federal law further subdivides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions-literally in a multiplicity of hands-effectively precluding its unilateral …

Deconstructing Deem And Pass: A Constitutional Analysis Of The Enactment Of Bills By Implication, Ronald J. Krotoszynski Jr.

Articles

Since 1933, the U.S. House of Representatives has maintained a procedure, the self-executing rule, that permits a single floor vote to pass multiple independent bills. Using this procedure, the House can pass a bill and, at the same time, "deem passed" entirely separate bills via a single floor vote. Some legal scholars have argued that this procedure is constitutionally unobjectionable, provided that members of the House clearly understand the legislative effects, whether singular or plural, of a particular vote. Others, however, have argued that the device violates the Constitution because the House and Senate do not vote on the same …

The Law Of The Body, Meredith M. Render

Articles

This Article posits that a "law of the body" is overdue. In the absence of clarity about the legal status of the human body, courts have constructed a collection of circumstantially defined categories for resolving the question of human body ownership and use. This patchwork approach is awkward, unwieldy, incoherent, and, by many lights, ultimately unjust. Many able minds have been applied to critiquing the distributive consequences of a regime in which we cannot-at any point in our lives- "own" our own bodies (or its constituent parts), but other people can and do. But what has been missing from these …

Optimal Asylum, Shalini Ray

Articles

The U.S. asylum system is noble but flawed. Scholars have long recognized that asylum is a “scarce” political resource, but U.S. law persists in distributing access to asylum based on an asylum seeker’s ability to circumvent migration controls rather than the strength of the asylum seeker’s claim for protection. To apply for asylum, an asylum seeker must either arrange to be smuggled into the United States or lie to the consulate while abroad to obtain a nonimmigrant visa. Nonimmigrant visa requirements effectively filter the pool of asylum applicants according to wealth, educational attainment, and intent not to remain in the …

Cooperative Federalism, The New Formalism, And The Separation Of Powers Revisited: Free Enterprise Fund And The Problem Of Presidential Oversight Of State-Government Officers Enforcing Federal Law, Ronald J. Krotoszynski Jr.

Articles

Formalism has returned, displacing the flexible, functionalist separation-of-powers analysis that often characterized the Supreme Court's separation-of-powers decisions during the Rehnquist Court. Free Enterprise Fund v. Public Co. Accounting Oversight Board provides powerful evidence of this emerging trend. Moreover, a reliable majority of the Justices have strongly embraced formalism in other important separation-of-powers decisions as well. A new formalism now appears to govern the Court's contemporary separation-of-powers jurisprudence-with the defenders of more flexible, functional approaches to separation-of-powers questions relegated to writing dissents. The Roberts Court, however, has failed to elucidate fully the precise scope and meaning of its new formalist vision …

Purchasers Lacking Privity Overcoming "The Rule" For Express Warranty Claims: Expanding Judicial Application Of Common Law Theories And Liberal Interpretation Of U.C.C. Section 2-318, Gary E. Sullivan, Braxton Thrash

Articles

The doctrine of privity has dogged contract plaintiffs for several hundred years, but it has been even more challenging for the courts. Never being fully satisfied with one take on it, courts have oscillated back and forth from allowing third-party suits to almost entirely prohibiting them. Even when the doctrine was at its strongest, the courts found ways to avoid its often inequitable dictates. The question seemed to be answered for sales contracts upon the promulgation and adoption of U.C.C. section 2-318. Many states, however, considered the provision unsatisfactory, and it was soon replaced by a set of three alternatives …

Protection Of "Innocent Lawbreakers": Striking The Right Balance In The Private Enforcement Of The Anti "Junk Fax" Provisions Of The Telephone Consumer Protection Act, Yuri R. Linetsky

Articles

No abstract provided.

The Shot (Not) Heard Round The World: Reconsidering The Perplexing U.S. Preoccupation With The Separation Of Legislative And Executive Powers, Ronald J. Krotoszynski Jr.

Articles

Since the drafting of the U.S. Constitution in 1787, the document has served as a model for constitutional design for many other democratic polities. Core elements of U.S. constitutionalism, including adoption of a written constitution, entrenched and judicially enforceable human rights, and federalism, have become commonplace in other nations' constitutions. One key element of U.S. constitutional structure, however, has failed to find a receptive audience abroad: the separation of legislative and executive powers. Most modern democracies have broken with the British model of parliamentary supremacy in favor of some system of judicial enforcement of entrenched human rights, but nevertheless have …

The Argot Of Equality: On The Importance Of Disentangling Diversity And Remediation As Justifications For Race-Conscious Government Action, Ronald J. Krotoszynski Jr.

Articles

The rules governing "benign" forms of race-conscious government action are easy to state but very difficult to apply in practice. A great deal of the difficulty arises from the lack of precision associated with the use of terms of art, such as "diversity," "remediation," and "affirmative action." Each of these terms should have a concrete and separate meaning, but in reality often serve as mere synonyms; this lack of precision in nomenclature is not always accidental. Although broad majorities support efforts to increase "diversity," race-conscious government action aimed at remediating past racial discrimination enjoys much more limited popular support. The …

Gender Rules, Meredith M. Render

Articles

Sex stereotypes are of perennial concern within antidiscrimination law and theory, yet there is widespread disagreement about what constitutes a "sex stereotype." This Article enters the debate surrounding the correct understanding of "stereotype" and posits that the concept is too thin to serve as a criterion for distinguishing "discriminatory" gender generalizations from non-discriminatory, probabilistic descriptions of behavior. Instead, "stereotype" is a heuristic that has been used by courts and commentators to crudely capture judgments about the justness of applying sex-respecting rules. In this light, the Article argues that the stereotype heuristic should be abandoned in favor of a rule-centered analysis …

Getting The Word Out: The Informational Function Of Trademarks, John Shahar Dillbary

Articles

This article challenges the statement that "the only legally relevant function of a trademark is to impart information as to the source of the product." Information about the source of the product undoubtedly helps the consumer choose the product she wants from a set of possible products. This article argues, however, that the informational function of trademarks is broader: in addition to providing information about the source, a trademark often provides information that reduces consumers' uncertainty about the product's qualities and impacts purchasing decisions. Specifically, this article shows that a trademark not only helps the consumer choose the product she …

The Apostle, Mr. Justice Jackson, And The Pathological Perspective Of The Free Exercise Clause, Ronald J. Krotoszynski Jr.

Articles

The generally accepted interpretation of Justice William O. Douglas's majority opinion in United States v. Ballard, 322 U.S. 78 (1944), casts the case as a ringing defense of religious freedom in the United States; a trial court may not charge a jury with inquiring into the factual truth of a defendant's religious beliefs incident to a prosecution for criminal fraud. This interpretation of Ballard is, at least arguably, unduly generous. By permitting juries to inquire into a religious leader's subjective good faith belief in the tenets of the faith, the Ballard majority provides an insufficient shield against prosecutions based on …

"Less" Is "More"? Textualism, Intentionalism, And A Better Solution To The Class Action Fairness Act's Appellate Deadline Riddle, Adam N. Steinman

Articles

Federal appellate judges have recently grappled with an interpretive puzzle that opens a new frontier in the long-running judicial and scholarly debate about statutory interpretation. The landmark but controversial Class Action Fairness Act of 2005 ("CAFA") authorizes immediate appeals from certain jurisdictional decisions by district courts, provided that litigants appeal "not less than 7 days after entry of the order." Although the goal of this provision was to set a seven-day deadline for CAFA appeals, the statutory text does precisely the opposite - it imposes a seven-day waiting period and sets no outer deadline. Federal appellate judges have disagreed sharply …

Reinventing Appellate Jurisdiction, Adam N. Steinman

Articles

Appellate jurisdiction in the federal system has been properly criticized for both its doctrinal incoherence and its procedural complexity. Although these critiques are well-founded, this Article reveals that, as applied in practice, federal courts have drawn sensible lines between interlocutory orders that are immediately appealable and those that are not. A limited category of interlocutory orders, primarily those rejecting immunities from suit, are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review. The doctrinal morass of the present framework, however, has obscured this basically sensible structure and has led to inefficient procedures for …

Famous Trademarks And The Rational Basis For Protecting Irrational Beliefs, J. Shahar Dillbary

Articles

Contrary to the traditional view, this article argues that mega-brands are neither economic evils nor limited to imparting information about the products they adom. It also rejects the view that famous marks persuade "snobs" to "irrationally" pay more for the same physical product they could have purchased for less. Rather, it adopts the view that in purchasing a branded good, the consumer is actually purchasing a bundle of three prod- ucts: a physical product, information about the physical product, and an intangible product, such as fame, prestige, peace of mind, or a pleasant feel- ing. This article explores the demand …

The Man, The State And You: The Role Of The State In Regulating Gender Hierarchies, Meredith M. Render

Articles

This paper begins with the thesis that an andocentric-assimilation model of women's liberation both has affected workplace outcomes for women and has desensitized us to those outcomes. The paper then applies that thesis to understandings of "equality" within a hierarchical framework, arguing that the equality-liberty dichotomy is false in the context of gender discrimination in the workplace. Instead the paper argues that disparate treatment is a liberty concern. In seeking to have our professional fates married to the fates of our male colleagues - which is what workplace equality doctrines aim to do - women are seeking to be only …

Dumbo's Feather: An Examination And Critique Of The Supreme Court's Use, Misuse, And Abuse Of Tradition In Protecting Fundamental Rights, Ronald J. Krotoszynski Jr.

Articles

The Justices of the Supreme Court have a great deal in common with the gifted pachyderm from the Walt Disney animated classic feature Dumbo. Like Dumbo's "magic" feather that purportedly enabled him to exercise his natural ability to fly, the tradition limitation on the Court's jurisprudence on unenumerated fundamental constitutional rights provides a more-apparent-thanreal constraint on the Court's almost unlimited ability to nullify legislative and executive action. In all too many substantive due process cases, reason seems to follow a predetermined result, rather than the result in the case following from the applicable governing principles. In this Article, Professor Krotoszynski …

Sausage-Making, Pigs' Ears, And Congressional Expansions Of Federal Jurisdiction: Exxon Mobil V. Allapattah And Its Lessons For The Class Action Fairness Act, Adam N. Steinman

Articles

The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapantah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this question …

A Constitution For Judicial Lawmaking, Adam N. Steinman

Articles

When courts decide cases, their decisions make law because they become precedent that binds future courts under the doctrine of stare decisis. This article argues that judicial lawmaking, like legislative lawmaking, is subject to constitutional principles that govern the extent to which a particular attempt at judicial lawmaking is valid. Because even poorly reasoned judicial decisions can still be effective lawmaking acts, it is important to distinguish between constitutional and non-constitutional principles and arguments. While a non-constitutional principle can be a basis for examining the wisdom or merits of a particular lawmaking act, only constitutional principles can assess whether the …

Secession, Constitutionalism, And American Experience, Mark Brandon

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No abstract provided.

Is There A Role For Lawyers In Preventing Future Enrons?, Kenneth M. Rosen, Jill E. Fisch

Articles

Following the collapse of the Enron Corporation, the ethical obligations of corporate attorneys have received increased scrutiny. The Sarbanes-Oxley Act of 2002, enacted in response to calls for corporate reform, specifically requires the Securities and Exchange Commission to address the lawyer's role by requiring covered attorneys to "report up" evidence of corporate wrongdoing to key corporate officers, and, in some circumstances, to the board of directors. Failure to "report up" subjects a lawyer to liability under federal law.

This Article argues that the reporting up requirement reflects a second-best approach to corporate governance reform. Rather than focusing on the actors …

The Origins Behind The Limited Liability Company, Susan P. Hamill

Articles

This Article documents the story behind the complex origins of the Limited Liability Company (LLC). Using unpublished letters, memoranda, and other documents, this Article shows the inside story of the interest group activity responsible for inventing the first LLC statute in 1977, the initial battle fought by the early LLC proponents to secure partnership classification from the Internal Revenue Service, and the organized efforts of LLC proponents in the 1990s lobbying the IRS for more favorable partnership classification rules, while encouraging the states to enact statutes. Professor Hamill offers a unique perspective on the story of the LLC through her …

Can Tenants Recover Their Bonds?, Gary E. Sullivan, Mary Anne Noone

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No abstract provided.

Creating And Enforcing Security Interests In Kazakhstan, Gary E. Sullivan

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No abstract provided.

Back To The Briarpatch: An Argument In Favor Of Constitutional Meta-Analysis In State Action Determinations, Ronald J. Krotoszynski Jr.

Articles

No abstract provided.