Law Commons^™

Writing For A Mind At Work: Appellate Advocacy And The Science Of Digital Reading, Mary Beth Beazley

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Professor Beazley explores the future implications to appellate advocacy as we move into the digital age. Understanding how that digital world affects legal reading is vital to understanding the future of appellate advocacy. Lawyers need to understand some of the science of how people read and interact with the written word; unfortunately, we have been slow to grasp the importance of this science. She defines and explains the concepts of "Active Readers" and "Knowledge Work." She then addresses some of the issues that arise as active readers transition from paper to digital platforms. Professor Beazley concludes by describing some of …

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

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In this article, Professor Hanan explores the issues surrounding reforms to the criminal justice system, juveniles, and conflict resolution. She asserts that enthusiasm for restorative justice as the best method of out-of-court dispute resolution in criminal cases should be tempered in favor of mediation, which is neutral because it does not assume that the accused is guilty and that "healing" or repair is warranted. Because decriminalization is not complete and the state retains jurisdiction, Professor Hanan argues for a neutral mediation program, which should (1) function to reduce overall contact with the criminal courts and (2) include procedural safeguards in …

Shrinking The Post-Plenary Power Problem, Michael Kagan

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In this essay, Professor Michael Kagan responds to Professor Matthew J. Lindsay's article, Disaggregating “Immigration Law.” Professor Kagan posits a majority of Supreme Court justices appear to be at least occasionally uneasy with the plenary power doctrine that has shaped immigration law since the Chinese Exclusion Case, but they are not all sure how to live without it either. He argues so long as this remains the case, the Court’s immigration jurisprudence is likely to be incrementally favorable to immigrants on the whole, but tentative, inconsistent, and incoherent in some important ways. He concludes the importance of Professor Lindsay’s intervention …

What Did The Supreme Court Hold In Heffernan V. City Of Paterson?, Michael Wells

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As a favor to his mother, Jeffrey Heffernan picked up a political yard sign. His supervisors demoted him, in the mistaken belief that he had engaged in protected speech. In Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), the Supreme Court held that a public employee can sue a local government under 42 U.S.C. § 1983 when a supervisor acts for constitutionally impermissible motives, even though he has not in fact exercised First Amendment rights. But the grounds for that holding are unclear. The Court may have ruled that the city, through its police chief, violated Heffernan’s First Amendment …

Chapter 11 Shapeshifters, Lindsey Simon

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Logic and equity would seem to demand that when administrative agencies are creditors to a bankrupt debtor, they should have the same status as other creditors. But a creditor agency retains its regulatory authority over the debtor, permitting it to continue with agency business such as conducting enforcement proceedings and awarding licenses. As a result, though bankruptcy law and policy both strongly support equal distribution of the estate, administrative agencies have been able to circumvent these goals through the use of “shapeshifting” behaviors. This Article evaluates two dangerous shapeshifting scenarios:

(1) where the agency avoids the limitations of creditor status …

Special-Education Litigation: An Empirical Analysis Of North Carolina's First Tier, Lisa Lukasik

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Special-education litigation begins, under the terms of the Individuals with Disabilities Education Act (IDEA), with an “impartial due process” proceeding. States enjoy limited discretion to establish the manner by which they will effectuate this process. Variations in implementation exist. Most states offer a “single-tiered” process, and eight offer a “two-tiered” proceeding.

National debate about the effectiveness of these administrative proceedings has increased over the last decade. One contested question is whether a single-tiered or two-tiered administrative process better serves the objectives of the Act.

Meaningful empirical examination of these specialized proceedings has begun to inform this debate, but significant research …

Abercrombie 2.0 - Can We Get There From Here? The Thoughts On 'Suggestive Fair Use', Joseph S. Miller

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Professor Linford, unlike Caesar’s Antony, seeks not only to bury Abercrombie, but to praise it, at least in part. Using linguistic evidence, both historical and experimental, he would relocate a bobbled boundary—from the descriptive–suggestive transition to the suggestive–arbitrary transition—and thereby establish a reformed template for sorting word marks according to their source-signifying strength. The basic difference between acquired and inherent distinctiveness not only remains in Linford’s account, however; it draws new strength from insights about semantic change. Behold, Abercrombie 2.0! His recent article, which is both provocative and engaging, continues the reconstructive work Linford began in his critique of …

Best Practices For A State Alzheimer's Disease Registry: Lessons From Georgia, Elizabeth Weeks Leonard, Rui Bu, Amanda Alexandra Brown

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In May 2014, the Georgia General Assembly enacted legislation establishing the Alzheimer’s Disease Registry (“Registry”) in order to generate new data for research and policy planning. The Task Force bill followed similar federal legislation. This state action has not only drawn tremendous attention to the continued prevalence of Alzheimer’s disease among the population of Georgia but also raised a series of questions regarding the practicability, legality, and effectiveness of the Registry. The lessons learned in Georgia, as Registry implementation moves forward, will provide guidance for other states interested in collecting similar data. In Part I of this article we describe …

A Hitchhiker’S Guide To The Oecd’S International Vat/Gst Guidelines, Walter Hellerstein

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The OECD’s International VAT/GST Guidelines, which were released in their consolidated form at the OECD’s Global Forum on VAT in Paris in late 2015, are the culmination of nearly two decades of efforts to provide internationally accepted standards for consumption taxation of cross-border trade, particularly trade in services and intangibles. This article provides a roadmap to the Guidelines, especially for readers who may be unfamiliar with consumption tax principles, in general, or VATs in particular. Part II of the article provides the background to the Guidelines, describing the basic features of a VAT, the problems with which the Guidelines are …

Children, Diane Marie Amann

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This chapter, which appears in The Cambridge Companion to International Criminal Law (William A. Schabas ed. 2016), discusses how international criminal law instruments and institutions address crimes against and affecting children. It contrasts the absence of express attention in the post-World War II era with the multiple provisions pertaining to children in the 1998 Statute of the International Criminal Court. The chapter examines key judgments in that court and in the Special Court for Sierra Leone, as well as the ICC’s current, comprehensive approach to the effects that crimes within its jurisdiction have on children. The chapter concludes with a …

Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney's Fees Under Section 505 Of The Copyright Act, David E. Shipley

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The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …

Ethical Challenges Of Using Law Student Interns/Externs To Expand Services To Low-Income Older Adults, Eleanor Lanier

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No abstract provided.

To Accommodate Or Not To Accommodate: (When) Should The State Regulate Religion To Protect The Rights Of Children And Third Parties?, Hillel Y. Levin, Allan J. Jacobs, Kavita Arora

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When should we accommodate religious practices? When should we demand that religious groups instead conform to social and legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.

Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, scholars, courts, ethicists, and medical practitioners have not offered a consistent way to analyze such cases and the law is inconsistent. This Article suggests that the lack of consistency is a troubling …

Police Reform And The Judicial Mandate, Julian A. Cook

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In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s reforms. …

Making Sense Of Legislative Standing, Matthew I. Hall

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Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing …

Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch

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When the same defendant harms many people in similar ways, a plaintiff’s ability to meaningfully participate in litigating her rights is curtailed dramatically. Now it is the rare plaintiff who sues a nationwide (or worldwide) corporation in her home jurisdiction and is able to litigate and resolve her claims there. Although several factors play a role in this phenomenon, including tort reform efforts like the Class Action Fairness Act, one of the most significant factors is Supreme Court jurisprudence over the last ten years in the areas of arbitration, personal jurisdiction, pleading, and class actions. Of course, recent cases aren’t …

Why Bias Challenges To Administrative Adjudication Should Succeed, Kent H. Barnett

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How much confidence would you have in a judge whom your opponent hired, can pay bonuses to, and can seek to discipline or remove? I recently argued that numerous administrative adjudicators very likely suffer from an unconstitutional appearance of partiality because the agencies that are often parties in administrative hearings can hire, pay bonuses to, discipline, and remove these adjudicators.

In this Article for the Missouri Law Review’s Symposium on A Future Without the Administrative State?, I contend that challenges to adjudicators’ appearance of partiality are well positioned to be part of the new wave of structural challenges to the …

Assessment Of Learning Outcomes In Transactional Skills Courses, Carol Morgan, Carol Newman

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The following description of our guided discussion reflects our questions from our original presentation and our own insights and experiences, together with the insights and ideas suggested by our audience. Our audience represented a variety of law schools, varying in size, geographic location, and curricular emphasis on transactional law and skills, and varying in types of transactional courses, including clinics, simulations, and courses focusing on transactional skills. We are grateful to our audience, who served as a thoughtful, vibrant discussion group in generously sharing their experiences, ideas, and suggestions regarding assessing learning outcomes in transactional skills-based courses.

Mindfulness - Finding Focus In A Distracted World, Heather Simmons, Kyle K. Courtney

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Law school and law practice can be an intense and chaotic experience. Library outreach can include programs that support the growing movement within the legal profession toward personal wellness; that is, valuing self-care and paying attention to our emotional, psychological, and physical health while practicing law. Mindfulness and meditation fall squarely within this movement’s mission

Saturns For Rickshaws: Lessons For Consumer Arbitration And Access To Justice, Peter B. Rutledge

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Companies are increasingly requiring consumers to agree to arbitrate disputes they may have over the products or services they purchase. Pre-dispute arbitration agreements are controversial especially for consumer disputes, where, it is feared, consumers will not represent themselves and neither will lawyers come forward because of the small stakes involved in individual claims. Dean Rutledge addresses in this chapter whether consumer arbitration processes can be designed to provide greater access to justice for consumers.

The Use Of Neuroscience Evidence In Criminal Proceedings, John B. Meixner Jr.

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While law and neuroscience has been an increasingly popular topic in academic discourse, until now, little systematic research had examined how neuroscience evidence has actually been used in court. Do courts actually admit and consider evidence of brain trauma that might indicate that an individual did not have the capacity to achieve the mental state required for conviction of particular crime? Do they use such evidence to consider the relative culpability for the crime in the event of conviction? Do they consider or understand brain scan data? For much of the life of this infant field, we have only been …

An Empirical Research Agenda For The Forensic Sciences, Jonathan J. Koehler, John B. Meixner Jr.

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After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we …

Decision Making And The Law: Truth Barriers, Jonathan J. Koehler, John B. Meixner Jr.

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Reaching an accurate outcome is a central goal of the American trial. But structural features of the legal system, in combination with the cognitive shortcomings of legal actors, hinder the search for truth. Regarding the legal system, various rules and policies restrict decision makers’ access to evidence, violate the laws of probability, and limit the evidentiary concerns that may be considered on appeal. Regarding legal actors, informational deficits (particularly regarding scientific and statistical evidence) and cognitive biases of police investigators, witnesses (lay and expert), attorneys, judges, and jurors pose serious obstacles. We conclude by suggesting that research in judgment and …

Impunity For The Incorrigible Psychopath?: Neurobiological Abnormalities Do Not Exempt Psychopaths From Criminal Responsibility, Shanée Brown

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Current research slowly unveils the mystery of the psychopath and his or her criminal behavior. Psychopathy is a developmental disorder defined by antisocial behavior and deficits in emotional responsiveness. This disorder results in both instrumental and reactive aggression. Instrumental aggression is also referred to as predatory or proactive aggression. Elevated levels of instrumental aggression distinguish psychopathy from other psychiatric disorders. Reactive aggression occurs as an impulsive reaction to a threatening or frustrating event. Instrumental aggression, on the other hand, involves purposeful behavior to achieve a desired goal (e.g., mugging to obtain money). Calculation or willful deliberation accompanies instrumental aggression. Unlike …

The Business Of Treaties, Melissa J. Durkee

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Business entities play important and underappreciated roles in the production of international treaties. At the same time, international treaty law is hobbled by state-centric presumptions that render its response to business ad hoc and unprincipled.

This Article makes three principal contributions. First, it draws from case studies to demonstrate the significance of business participation in treaty production. The descriptive account invites a shift from attention to traditional lobbying at the domestic level and private standard-setting at the transnational level to the ways business entities have become autonomous international actors, using a panoply of means to transform their preferred policies into …

Why The Right Embraced Rights, Logan E. Sawyer Iii

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Book review of he Other Rights Revolution: Conservative Lawyers and the Remaking of American Government by Jefferson Decker (Oxford U. Press 2016).

Twenty-Week Abortion Statutes: Four Arguments, Randy Beck

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The Supreme Court has never justified the conclusion that the Constitution bars any substantial regulation designed to protect fetal life prior to viability. No majority opinion has ever offered a rationale for the viability rule, and the arguments recited in non-majority opinions are either conclusory or fail to distinguish viability from earlier lines that might be drawn. The most coherent academic attempt to justify the rule — Professor Laurence Tribe’s argument that a woman can “transfer nurture of [a viable] fetus to other hands” — rests on the erroneous assumption that a pregnant woman can arrange for premature delivery of …

The Institutionalization Of Supreme Court Confirmation Hearings, Paul M. Collins Jr., Lori A. Ringhand

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This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee’s role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939–2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee’s role …

The 'Press,' Then & Now, Sonja R. West

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Does the First Amendment’s protection of freedom of “the press” simply mean that we all have the right to use mass communication technology to disseminate our speech? Or does it provide constitutional safeguards for a particular group of speakers who function as government watchdogs and citizen surrogates? This question defines the current debate over the Press Clause. The Supreme Court’s Citizens United decision, along with recent work by Michael McConnell and Eugene Volokh, suggests the answer is the former. This article pushes back on that view.

It starts by expanding the scope of the relevant historical evidence. Discussions about the …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook

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On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …