Law Commons^™

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

A Lesson In Civility, David A. Grenardo

Faculty Articles

The inherent importance of civility in the legal profession necessitates teaching civility by law schools. This Article demonstrates how civility applies to advocacy and the practice of law, the efficiency of our justice system, lawyer well-being, obtaining a job and professional identity formation, and public confidence in the legal system. The Article can assist courts, attorneys, and professors in understanding civility and its significance. Most critically, this Article provides a turnkey lesson plan for law schools on civility that professors can employ in a variety of classes including, among others, Professional Responsibility, Civil Procedure, and Constitutional Law. Teaching law students …

Fraud On The Court And Abusive Discovery, David R. Hague

Faculty Articles

Unbeknownst to many, federal courts have the power under the Federal Rules of Civil Procedure to set aside judgments entered years earlier that were obtained by “fraud on the court.” Fraud on the court, however, can take many forms and courts and commentators agree that it is a nebulous concept. The power to set aside a judgment requires courts to strike a balance between the principles of justice and finality. A majority of courts require a showing, by clear and convincing evidence, of intentional fraudulent conduct specifically directed at the court itself. This standard is flawed. And courts that have …

The High Costs Of Incivility, David A. Grenardo

Faculty Articles

Many law students come to law school after being indoctrinated by television and movies, believing that an effective lawyer must be obstreperous, obnoxious, and rude to be successful. Lawyers, they believe, must fight their opponents on every point at every corner if they want to represent their clients zealously and adequately.

Law students must recognize that incivility by lawyers can lead to significant negative consequences for the client, the attorney herself, and the legal system. Law students must also understand that lawyers can treat opposing counsel with civility while still providing robust, vigorous, and adversarial representation for their clients. This …

Comment: The Ninth Amendment: A Constitutional Challenge To Corporal Punishment In Public Schools, David R. Hague

Faculty Articles

The Supreme Court's refusal to resolve the conflict over corporal punishment in public schools perpetuates the uncertainty over children and parents' legal rights. The use of corporal punishment in public schools unconstitutionally abridges parents' right to direct the upbringing of their children because it forces parents to accept the emotional and physical marks that corporal punishment leaves on their children. In 1977, the Supreme Court addressed the constitutionality of corporal punishment in Ingraham v. Wright. The Court held that the cruel and unusual punishment clause of the Eighth Amendment applied only to criminal punishments and thus provided no protection against …

Keeping The Faith: The Problem Of Apparent Bias In Labor Representation Elections, John W. Teeter Jr

Faculty Articles

Any procedure requiring a “fair” election must honor the rights of both those who oppose and those who favor a union. The National Labor Relations Act (“Act”) is wholly neutral when it comes to that choice. Under the terms of the Act, employees have the right to form unions but also have the right to refrain from such activities. The National Labor Relations Board’s (“Board”) role in representation elections is to ascertain the employee's’ wishes concerning unionization, and not to influence that fundamental choice. The Board’s appearance of neutrality may be undermined through fraternization, the delegation of duties, and allegedly …