Law Commons^™

No-Injury And Piggyback Class Actions: When Product-Defect Class Actions Do Not Benefit Consumers, Philip S. Goldberg, Andrew J. Trask

University of Massachusetts Law Review

Class counsel are more frequently filing product-based class actions that, whether successful or not, offer few practical benefits to real consumers or class members. These no-benefit class actions cause the unnecessary expense of the courts’ time and resources, and they often fail to provide actual value to class members while still producing substantial attorneys’ fees. This article explores why strategic vagueness in plaintiffs’ filings and a lack of vigorous analysis by the courts have allowed no-benefit class actions to unnecessarily consume court resources. The article concludes by offering suggestions for how courts can alleviate some of this pressure, primarily by …

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

UMKC Law Review

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

“Genocide Of The Soviet People”: Putin’S Russia Waging Lawfare By Means Of History, 2018–2023, Anton Weiss-Wendt

Genocide Studies and Prevention: An International Journal

This article exposes the political underpinnings of the term “genocide of the Soviet people,” introduced and actively promoted in Russia since 2019. By reclassifying mass crimes committed by the Nazis and their accomplices against the civilian population—specifically Slavic—as genocide, Russian courts effectively engage in adjudication of the history of the Second World War. In the process, genocide trials, ongoing in twenty-five Russian provinces and five occupied Ukrainian territories, present no new evidence or issue new indictments, thus fulfilling none of the objectives of a standard criminal investigation. The wording of the verdicts, and a comprehensive political project put in place …

Is Jacobson V. Massachusetts Viable After A Century Of Dormancy? A Review In The Face Of Covid-19, Sawan Talwar

Touro Law Review

The COVID-19 pandemic has stretched us into the vast unknowns, emotionally, logically, politically, and legally. Relying on their police power, governments inched into the darkness of the powers’ fullest extent, leaving many to wonder whether the exercise of this power was constitutional. This Article examines the extent of the police power that both the federal and state governments have, and how Jacobson v. Massachusetts1 was the “silver bullet” for governments across the United States. Further, this Article provides an overview of police power, and the status of COVID-19 mandates. This Article additionally examines quarantine case law and provides an analysis …

Imminence Should Not Be A Controlling Factor In The Duress Defense In The Context Of Battered Women, Jacqueline Fink

Touro Law Review

Domestic violence is a silent killer that attacks quickly. This Note specifically discusses the Battered Woman Syndrome and the need to explore the current laws that “protect” this group. Current laws in a majority of states create a barrier that blocks battered women from obtaining the justice that should be given to all citizens. When the abused woman is at an impasse in her relationship, she may be forced to make a life-or-death decision. More likely than not, the result becomes the worst possible outcome. Domestic violence continues to be higher amongst women than men, where women are emotionally, as …

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron

Touro Law Review

No abstract provided.

Rethinking Antebellum Bankruptcy, Rafael I. Pardo

University of Colorado Law Review

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …

Behind Bars: An Analysis Of The Incarceration Of Black Americans, Tommy A. Valente

Tenor of Our Times

In this study, I attempt to explain the disproportionate incarceration rates which exist in the United States. The black American are incarcerated at a significantly higher rate than any other ethnic group in the country. I hypothesize single parent households and poor public education systems will have significant influences on incarceration rates. For this study I run an OLS regression and use data from all fifty states between 2019-2020. I use seven independent variables in this study: ACGR score, GDP per capita, unemployment rate, percent of births to unmarried women, homicide rate, population, and political party affiliation of a state. …

From Streets To Stats: A Statistical Analysis Of The Quantity Of Illegal Narcotics Seized In The United States, Zachary T. Strickland

Tenor of Our Times

This study aims to determine how seven different variables affect the total quantity of illegal narcotics seized. These seven variables include four dichotomous and three continuous variables, each striving to teach readers how they relate to the quantity of narcotics seized across specific states. My goal for this project is to figure out if there is any relationship to help law enforcement fight the war on drugs. With the continuing apparent rise of this war, this study is crucial in determining potential relationships between a state's characteristics and the quantity of illegal narcotics they forcibly take possession of. I further …

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Texans Shortlisted For The U.S. Supreme Court: Why Did Lightning Only Strike Once?, The Honorable John G. Browning

St. Mary's Law Journal

No abstract provided.

An Historical And Empirical Analysis Of The Cyprès Doctrine, Christopher J. Ryan

ACTEC Law Journal

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field. First, …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

The Emerging Jurisprudence Of The African Human Rights Court And The Protection Of Human Rights In Africa, John M. Mbaku, Professor Of Economics

Vanderbilt Journal of Transnational Law

During most of the post-independence period, many African countries have either been unwilling or unable to protect human rights or relegated this important function to a small group of poorly funded but brave and courageous non-state actors. Most importantly, some African governments have either actively engaged in human rights violations or failed to bring to justice those who have committed atrocities against their fellow citizens. In the 1970s and 1980s, many African heads of state were more concerned with national sovereignty in an effort to hide the violation of human rights committed within their jurisdictions than participating in the building, …

Religion As Disobedience, Xiao Wang

Vanderbilt Law Review

Religion today offers plaintiffs a ready path to disobey laws without consequence. Examples of such disobedience abound. In the past few years alone, courts have enjoined vaccine mandates, invalidated stay-at-home orders, and set aside antidiscrimination laws protecting same-sex couples. During the 2021-2022 Term, plaintiffs relied once again on free exercise to subvert laws governing public education, capital punishment, and school prayer. Some hospitals have begun denying fertility treatment to LGBTQ employees on this same basis.

How did religion become a skeleton key for lawbreaking without repercussion? The conventional wisdom is that, after decades of neglect, the Supreme Court finally began …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Disability Accessibility In Washington Courts, Luke Byram

Access*: Interdisciplinary Journal of Student Research and Scholarship

In this article, disability access is explored in the United Kingdom, Ireland and Canada, examining court systems and the rights of defendants in a literature review. Then, disability accessibility and diversity are explored within the Washington court system utilizing semi-structured interviews with 17 practicing Washington State attorneys from diverse backgrounds and legal experiences who primarily practice criminal law in the courts. The article describes the current state of sign language interpretation and communication barriers within the courts for those who are disabled and the current accommodation standard and various communication and physical barriers for those with disabilities in the court …

Courts Without Court, Andrew G. Ferguson

Vanderbilt Law Review

What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …

Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger

The Cardinal Edge

No abstract provided.

Observing The Effects Of Automating The Judicial System With Behavioral Equivalenc, Joseph A. Blass

South Carolina Law Review

No abstract provided.

Revisiting The Visitor: Maine's New Uniform Probate Code & The Evolving Role Of The Court-Appointed Visitor In Adult Guardianship Reform, Lisa Kay Rosenthal

Maine Law Review

A judge may appoint a guardian for an adult who does not have the capacity to make decisions affecting their own health or welfare. However, the power of the guardian—while intended to serve a protective function—potentially invites financial, physical, and emotional abuse of the most vulnerable members of society. To help a probate judge understand the circumstances of a guardianship and the need for protection, probate courts in Maine appoint a “visitor” to interview both the person allegedly in need of a guardianship and the proposed guardian. The visitor submits a report to the court which contains the visitor’s observations, …

Taking The Rule Of Law Seriously, Michele Cotton

University of Massachusetts Law Review

American legal scholars and jurists have given the rule of law their sustained attention, and the international community has treated it as an important measure of societal well-being. But still the rule of law is not taken seriously. For one thing, little effort has been made to craft a definition of the rule of law that is actually useful. And even when legal scholarship does try at empiricism that could illuminate the vitality of our rule of law, it generally starts from the wrong hypotheses and uses the wrong methods. It focuses on how to achieve “access to justice” and …

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Rethinking The Process Of Service Of Process, Mary K. Bonilla

St. Mary's Law Journal

Even as technology evolves, the Federal Rules of Civil Procedure, specifically Federal Rule 4, remains stagnate without a mechanism directly providing for electronic service of process in federal courts. Rule 4(e)(1) allows service through the use of state law—consequently permitting any state-approved electronic service methods—so long as the federal court where proceedings will occur, or the place where service is made, is located within the state supplying the law. Accordingly, this Comment explains that Rule 4 indirectly permits electronic service of process in some states, but not others, despite all 50 states utilizing the same federal court system. With states …

Thoughts Regarding The Application Of The Step Transaction Doctrine To The Section 351 Control Requirement And Complex Media, Inc. V. Commissioner, Philip G. Cohen

William & Mary Business Law Review

Over thirty years ago, Professor Ronald H. Jensen authored an article in the Virginia Tax Review, titled “Of Form and Substance: Tax Free Incorporations and Other Transactions Under Section 351.” Professor Jensen asserted that it was inappropriate to utilize the step transaction doctrine to determine whether the control requirement was met in a purported section 351 transaction, involving a disposition of some, or all, of the transferor’s shares even if effected by a binding contract made prior to the contribution.

Professor Jensen concluded that the courts and the Internal Revenue Service (Service) have produced a hodgepodge of intellectually inconsistent decisions …

Sb 441: Criminal Records Responsibility Act, Jacob Kanter, Greg Mercer

Georgia State University Law Review

The Act contains two distinct components. First, the Act reforms Georgia’s criminal records reporting system. Second, the Act grants the Georgia Bureau of Investigation authority to initiate investigations into election fraud.

Remarks On My Mentor, Robert Cover, Hon. Guido Calabresi

Touro Law Review

No abstract provided.

How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat

Touro Law Review

There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …

"Very Complex Questions": Zoos, Animals, And The Law, Dana Mirsky

William & Mary Environmental Law and Policy Review

In Sulawesi, Indonesia—forty-five thousand years ago, an artist painted what is now the world’s oldest known cave painting—a life-size image of a wild pig. Forty thousand years later, the elite of Hierakonpolis, Egypt, housed elephants, hippos, and baboons in the world’s oldest known zoo. Today, individuals keep exotic fish, reptiles, and birds as pets while zoos and aquariums display some of the largest and rarest animals on the planet. The human fascination with wild animals is clearly not a new phenomenon, but how and why we keep wild animals have evolved over time. Zoos in particular have changed dramatically just …