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Articles 1 - 30 of 41
Full-Text Articles in Law
On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah
On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah
Articles
This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.
Mapping The Iceberg: The Impact Of Data Sources On The Study Of District Courts, Christina L. Boyd, Pauline T. Kim, Margo Schlanger
Mapping The Iceberg: The Impact Of Data Sources On The Study Of District Courts, Christina L. Boyd, Pauline T. Kim, Margo Schlanger
Articles
Three decades ago, Siegelman and Donohue aptly characterized research about courts and litigation that relied only on published opinions as “studying the iceberg from its tip.” They implored researchers to view published district court opinions “with greater sensitivity to the ways in which such cases are unrepresentative of all cases”. The dynamic, multistage nature of trial court litigation makes a focus solely on published opinions particularly ill-suited to the study of federal district courts. Expanded electronic access to court documents now allows more pre-cise analysis of the ways in which published cases are unrepresentative and what differences that makes for …
Federal Forum Provisions And The Internal Affairs Doctrine, Dhruv Aggarwal, Albert H. Choi, Ofer Eldar
Federal Forum Provisions And The Internal Affairs Doctrine, Dhruv Aggarwal, Albert H. Choi, Ofer Eldar
Articles
A key question at the intersection of state and federal law is whether corpo- rations can use their charters or bylaws to restrict securities litigation to federal court. In December 2018, the Delaware Chancery Court answered this question in the negative in the landmark decision Sciabacucchi v. Salzberg. The court invalidated “federal forum provisions” (“FFPs”) that allow companies to select federal district courts as the exclusive venue for claims brought under the Secur- ities Act of 1933 (“1933 Act”). The decision held that the internal affairs doc- trine, which is the bedrock of U.S. corporate law, does not permit charter …
Equitable Gateways: Toward Expanded Federal Habeas Corpus Review Of State Court Criminal Convictions, Eve Brensike Primus
Equitable Gateways: Toward Expanded Federal Habeas Corpus Review Of State Court Criminal Convictions, Eve Brensike Primus
Articles
State prisoners who file federal habeas corpus petitions face a maze of procedural and substantive restrictions that effectively prevent almost all prisoners from obtaining meaningful review of their convictions. But it is a mistake to think that habeas litigation is just a Kafkaesque nightmare with no constructive potential. Federal courts do sometimes cut through the doctrinal morass to consider state prisoners’ claims, relying on what this Articleterms "equitable gateways" to federal habeas relief. Litigants and courts generally underestimate the potential these gateways offer, with the result that habeas litigation does not focus on them as often as it should. Here …
Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll
Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll
Articles
The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the …
Rethinking Criminal Contempt, John A.E. Pottow, Jason S. Levin
Rethinking Criminal Contempt, John A.E. Pottow, Jason S. Levin
Articles
It is of course too early to tell whether we are in a new era of bankruptcy judge (dis)respectability. Only time will tell. But this Article performs a specific case study, on one discrete area of bankruptcy court authority, based upon a particular assumption in that regard. The assumption is this: certain high-salience judicial events-here, the recent Supreme Court bankruptcy judge decisions, coupled with earlier constitutional precedents involving the limits of Article III-can trigger overreaction and hysteria. Lower courts may read these Supreme Court decisions as calling into question the permissibility of certain bankruptcy court practices under the Constitution, and …
Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger
Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger
Articles
This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to …
Trends In Prisoner Litigation, As The Plra Enters Adulthood, Margo Schlanger
Trends In Prisoner Litigation, As The Plra Enters Adulthood, Margo Schlanger
Articles
The Prison Litigation Reform Act (PLRA), enacted in 1996 as part of the Newt Gingrich "Contract with America," is now as old as some prisoners. In the year after the statute's passage, some commenters labeled it merely "symbolic." In fact, as was evident nearly immediately, the PLRA undermined prisoners' ability to bring, settle, and win lawsuits. The PLRA conditioned court access on prisoners' meticulously correct prior use of onerous and error-inviting prison grievance procedures. It increased filing fees, decreased attorneys' fees, and limited damages. It subjected injunctive settlements to the scope limitations usually applicable only to litigated injunctions. It made …
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
Articles
On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act. Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods. The case has garnered a great deal of …
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus
Articles
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …
The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model, Gil Seinfeld
The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model, Gil Seinfeld
Articles
On June 6, 2013, the United States Judicial Panel on Multidistrict Litigation ordered the consolidation of fifteen actions filed by state attorneys general against the Standard & Poor’s rating agency for its role in the collapse of the market for structured finance securities. The cases are important: The underlying events shook markets worldwide and contributed to a global recession, the legal actions themselves take aim at foundational aspects of the way rating agencies go about their business, and the suits threaten the imposition of significant fines and penalties against S&P. So it is unsurprising that the order of the MDL …
Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard
Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard
Articles
To outsiders, securities law is not all that interesting. The body of the law consists of an interconnecting web of statutes and regulations that fit together in ways that are decidedly counter-intuitive. Securities law rivals tax law in its reputation for complexity and dreariness. Worse yet, the subject regulated-capital markets-can be mystifying to those uninitiated in modem finance. Moreover, those markets rapidly evolve, continually increasing their complexity. If you do not understand how the financial markets work, it is hard to understand how securities law affects those markets.
A Structural Vision Of Habeas Corpus, Eve Brensike Primus
A Structural Vision Of Habeas Corpus, Eve Brensike Primus
Articles
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 …
Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus
Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus
Articles
The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …
Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld
Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld
Articles
Article I, Section 8 and Article Ill, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the …
How Should We Study District Judge Decision-Making?, Pauline T. Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin
How Should We Study District Judge Decision-Making?, Pauline T. Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin
Articles
Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. The choices available to judges are determined not only by the law and facts of the case but also by procedural context. The incentives and constraints shaping judges’ decision-making will vary depending on, for example, whether they have a life-appointment or are elected; whether they hear cases alone or with colleagues; and whether and under what circumstances their decisions might be altered, overturned, or undone by the actions of others. The basic insight that the institutional context matters has led to increasingly sophisticated studies of how …
Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane
Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane
Articles
Judges will tell you that they are comparatively poor rate regulators. The specialized, technical competence and supervisory capacity that public utilities commissions enjoy are usually absent from judicial chambers. Nonetheless, when granting antitrust remedies-particularly remedies for monopolistic abuse of intellectual property-courts sometimes purport to act as rate regulators for the licensing or sale of the defendant's assets. At the outset, we should distinguish between two forms ofjudicial rate setting. In one form, a court (or the FTC in its adjudicative capacity) grants a compulsory license and sets a specific rate as part of a final judgment or an order. The …
The Federal Courts As A Franchise: Rethinking The Justifications For Federal Question Jurisdiction, Gil Seinfeld
The Federal Courts As A Franchise: Rethinking The Justifications For Federal Question Jurisdiction, Gil Seinfeld
Articles
The components of the Federal Franchise model-procedural homogeneity, cultural conformity, and technical competence-should be familiar. The federal courts' capacity to provide these benefits has not escaped commentators' notice; indeed, there are points of connection between these features of federal court adjudication and the individual fragments of the conventional account.l0 But prior scholarly discussion of these themes has been unsystematic, treating them as (at best) secondary considerations when it comes to the allocation of federal question cases between the state and federal courts. This Article attempts to weave together these previously disconnected strands of thinking about federal court adjudication and to …
Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus
Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus
Articles
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.
The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog
The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog
Articles
A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …
The Puzzle Of Complete Preemption, Gil Seinfeld
The Puzzle Of Complete Preemption, Gil Seinfeld
Articles
Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the …
Using Court Records For Research, Teaching, And Policymaking: The Civil Rights Litigation Clearinghouse, Margo Schlanger, Denise Lieberman
Using Court Records For Research, Teaching, And Policymaking: The Civil Rights Litigation Clearinghouse, Margo Schlanger, Denise Lieberman
Articles
The National Archives and Records Administration (NARA) is, wisely, planning the future of its enormous collection of relatively recent court records. The pertinent regulation, a “records disposition schedule” first issued in 1995 by the Judicial Conference of the United States in consultation with NARA, commits the Archives to keeping, permanently, all case files dated 1969 or earlier; all case files dated 1970 or later in which a trial was held, and “any civil case file which NARA has determined in consultation with court officials to have historical value.” Other files may be destroyed 20 years after they enter the federal …
What We Know, And What We Should Know About American Trial Trends, Margo Schlanger
What We Know, And What We Should Know About American Trial Trends, Margo Schlanger
Articles
More than a few people noticed that the American court system was seeing ever fewer trials before Marc Galanter named the phenomenon.' But until Galanter mobilized lawyers2 and scholars to look systematically at the issue, inquiry was both piecemeal and sparse. Over the past three years, in contrast, Galanter's research 3 and his idea entrepreneurship, crystallized in the "Vanishing Trial" label, has spawned if not a huge literature at least a substantial one. We have now gotten the benefit of sustained scholarly inquiry by researchers of many stripes. Their work has been largely, though not entirely, empirical, and so we …
What Counts As Fraud? An Empirical Study Of Motions To Dismiss Under The Private Securities Litigation Reform Act, Adam C. Pritchard, Hillary A. Sale
What Counts As Fraud? An Empirical Study Of Motions To Dismiss Under The Private Securities Litigation Reform Act, Adam C. Pritchard, Hillary A. Sale
Articles
This article presents the findings of a study of the resolution of motions to dismiss securities fraud lawsuits since the passage of the Private Securities Litigation Reform Act (PSLRA) in 1995. Our sample consists of decisions on motions to dismiss in securities class actions by district and appellate courts in the Second and Ninth Circuits for cases filed after the passage of the Reform Act to the end of 2002. These circuits are the leading circuits for the filing of securities class actions and are generally recognized as representing two ends of the securities class action spectrum. Post-PSLRA, the Second …
Chevron And Preemption, Nina A. Mendelson
Chevron And Preemption, Nina A. Mendelson
Articles
This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …
Determinants Of Civil Rights Filings In Federal District Court By Jail And Prison Inmates, Anne Morrison Piehl, Margo Schlanger
Determinants Of Civil Rights Filings In Federal District Court By Jail And Prison Inmates, Anne Morrison Piehl, Margo Schlanger
Articles
This article uses panel data estimation techniques to examine the relation between the number of federal court civil filings by inmates and jail and state prison populations (and, hence, the relation between jail and prison inmate filing rates) both before and after the effective date, in 1996, of the Prison Litigation Reform Act (PLRA). The research issue matters for several reasons. First, the amount of litigation by inmates is a crucial component of the regulatory regime governing jails and prisons and thus what factors drive filings, and by how much, deserves close attention and assessment. In addition, the PLRA was …
The Reliability Of The Administrative Office Of The U.S. Courts Database: An Initial Empirical Analysis, Theodore Eisenberg, Margo Schlanger
The Reliability Of The Administrative Office Of The U.S. Courts Database: An Initial Empirical Analysis, Theodore Eisenberg, Margo Schlanger
Articles
Researchers have long used federal court data assembled by the Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center (FJC). The data include information about every case filed in federal district court and every appeal filed in the twelve nonspecialized federal appellate courts. Much research using the AO data spans subject matter areas, and includes articles on appeals, caseloads and case-processing times, case outcomes, the relation between demographics and case outcomes, class actions, diversity jurisdiction, and litigation generally. Other research using the AO data covers particular subject matter areas, such as inmate cases, contract cases, corporate litigation, …
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
Articles
With the narrowing of Congress' Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five's legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five's permissible …
Allocating The Judicial Power In A 'Unified Judiciary' (Restructuring Federal Courts), Evan H. Caminker
Allocating The Judicial Power In A 'Unified Judiciary' (Restructuring Federal Courts), Evan H. Caminker
Articles
Over the past half-century, federal courts scholarship concerning congressional control over the authority of Article III courts has focused predominantly on the question of jurisdiction: Which, if any, federal courts may or must be available to adjudicate which cases or controversies?' This preoccupation is unsurprising since most threatened or actualized congressional regulation over this period of time has concerned when and which federal courts would play a role in implementing the law of the land.2
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
Articles
The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means …