Law Commons^™

Dispatches From Two Fronts Of The Battle For Sentencing Reform: Parole And Federal Sentencing Legislation, Frank O. Bowman Iii

Faculty Publications

This Issue of FSR reports on two fronts in the ongoing national battle for sentencing reform. The first half of the Issue is devoted to evolving views and new initiatives on parole. The second half of the Issue is a report on the content and prospects for success of a number of bills pending in Congress that would reform federal criminal sentencing, corrections, and back-end release practices.

Good Enough To Be Getting On With? The State Of Federal Sentencing Legislation, December 2015, Frank O. Bowman Iii

Faculty Publications

This article traces the evolution of the sentencing reform debate in Congress in 2015. It summarizes and compares the six major pieces of sentencing legislation introduced in 2015. It describes the progression from con­ceptually simple, broadly applicable reforms of mandatory minimum sentences to the regime of complex and highly restrictive rules relaxing mandatory minimum sentences for a modest subset of federal defendants found in the bills that passed the Senate and House Judiciary Committees. The article summarizes some of the concerns voiced about he sentencing provisions of the various bills. Finally, it discusses the three pending bills relating to back-end …

Recognizing The Limits Of Antitrust: The Roberts Court Versus The Enforcement Agencies, Thom Lambert, Alden F. Abbott

Faculty Publications

In his seminal 1984 article, The Limits of Antitrust, Judge Frank Easterbrook proposed that courts and enforcers adopt a simple set of screening rules for application in antitrust cases, in order to minimize error and decision costs and thereby maximize antitrust's social value. Over time, federal courts in general, and the U.S. Supreme Court in particular, under Chief Justice Roberts have in substantial part adopted Easterbrook's "limits of antitrust" approach, thereby helping to reduce costly antitrust uncertainty. Recently, however, antitrust enforcers in the Obama Administration (unlike their predecessors in the Reagan, Bush, and Clinton Administrations) have been less attuned to …

Pedr Is Important For Culture Change In Courts, John Lande

Faculty Blogs

This post highlights a report by the Institute for the Advancement of the American Legal System, Change the System, Change the Culture: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow. One of the recommended cultural shifts is “Dig Deep, Earlier: Lawyers need to develop a deep understanding of their case early in the process.”

A Post-Obergefell America: Is A Season Of Legal And Civic Strife Inevitable?, Carl H. Esbeck

Faculty Publications

Obergefell v. Hodges did not extend the rigor of the Equal Protection Clause to "sexual orientation" as a protected class. The case is about the right to marry by obtaining a license from the state, not a right to be free of discrimination on the basis of sexual orientation. The Court's rhetoric, however, will boost officials eager to take the next step for sexual equality. Not only did Obergefell speak of gays and lesbians as a class and wrote empathetically about them, but in dicta twice said that being gay or lesbian is an immutable characteristic. Accordingly, it can be …

In Defense Of Mcdonnell Douglas: The Domination Of Title Vii By The At-Will Employment Doctrine, Chuck Henson

Faculty Publications

The purpose of this Article is to describe the actual relationship between the Doctrine and Title VII as implemented in the Court's disparate treatment decisions. Title VII and the Doctrine are not separate forces warring with each other. The at-will employment doctrine guided the Court's Title VII disparate treatment jurisprudence, giving the maximum possible latitude to employers because that was the Eighty-eighth Congress's intent.

Incivility In Legal Writing Can Be Costly To Client And To Attorney, Douglas E. Abrams

Faculty Publications

The adversary system's pressures can strain the tone and tenor of a lawyer's oral speech, but the strain on civility can be especially great when lawyers write. Words on paper arrive without the facial expression, tone of voice, body language, and contemporaneous opportunity for explanation that can soothe face-to-face communication. Writing appears cold on the page, dependent not necessarily on what the writer intends or implies, but on what readers infer.

This article is in three parts. Part I describes two manifestations of incivility, a lawyer's written derision of an opponent, and a lawyer's written disrespect of the court. Part …

Transferring Nonnegotiable Mortgage Notes, Dale A. Whitman

Faculty Publications

This article reviews what we know about transferring ownership and the right of enforcement of nonnegotiable notes. The focus will be on notes secured by mortgages, since this is likely the context in which most modern nonnegotiable notes are created. There has been a vast amount of litigation about the transfer of negotiable mortgage notes in the past half decade, greatly expanding our understanding, but there has been little development involving nonnegotiable notes. Hence, it is helpful to compare negotiable and nonnegotiable notes, with particular emphasis on how each is transferred. Perhaps ironically, this means that the bulk of this …

What Makes Lawyers Happy? – And How Can You Help?, John Lande

Faculty Blogs

This post summarizes Lawrence Krieger and Kennon Sheldon’s impressive study, What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success. They write, “[T]he current data show that the psychological factors [related to subjective well-being] seen to erode during law school are the very factors most important for the well-being of lawyers. Conversely, the data reported here also indicate that the factors most emphasized in law schools – grades, honors, and potential career income, have nil to modest bearing on lawyer well-being.”

Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande

Faculty Blogs

This post suggests that lawyers do the following to help clients achieve their goals: Understand your clients’ interests. Pay attention to what’s really important in your cases, not just the law or winning. Recognize the importance of emotions – especially yours. Get to know your counterpart lawyer. Make a habit of preparing to resolve matters at the earliest appropriate time. Be prepared to negotiate more than you might expect. Get help from mediators when needed. Be prepared to advocate hard and smart.

Beyond Disparate Impact: How The Fair Housing Movement Can Move On, Rigel C. Oliveri

Faculty Publications

Disparate impact theory is a vital tool for fair housing advocates. It allows them to challenge institutional behaviors that harm minority groups and municipal practices that perpetuate long-standing segregated patterns, without having to go through the difficult process of identifying a specific bad actor with explicitly discriminatory motives. Disparate impact theory has been a failure for fair housing advocates. It is overly complicated, infrequently used, and seldom leads to plaintiff success. Moreover, the availability of this theory has led to the underdevelopment of the law surrounding intentional discrimination, which has ultimately made all cases with circumstantial evidence more difficult to …

Introducing The 'New Handshake' To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

Faculty Publications

There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake. The handshake helped ensure the enforcement of the deal without need for the rule of law or legal power. That handshake was one’s bond — it was a personal trust mark. With the emergence of eCommerce, however, that handshake has nearly disappeared along with the sense of responsibility it inspired. Accordingly, this article discusses how this has impacted consumers’ access to remedies regarding …

Bankruptcy Weapons To Terminate A Zombie Mortgage, Andrea Boyack, Robert Berger

Faculty Publications

Bankruptcy’s strongest public policy is the possibility of a fresh start for a borrower – a way for a debtor to free himself from the burdens of pre-petition obligations and re-commence his or her financial life. A debtor can surrender property burdened by a lien to the lien-holder and thereby release him or herself from ongoing obligations under the loan. This is true even in cases where the collateral’s value is less than the secured loan – for in bankruptcy, a lender’s secured claim is limited to the value of its lien. In chapter 13, a debtor who elects to …

Single Family Zoning, Intimate Association, And The Right To Choose Household Companions, Rigel C. Oliveri

Faculty Publications

Many local governments use single family zoning ordinances to restrict occupancy in residential areas to households whose members are all related to one another by blood, marriage, or adoption. The Supreme Court upheld such ordinances in the 1974 case of Belle Terre v. Boraas, and they have been used to prevent all sort of groups from living together – from unmarried couples who are raising children to college students. This Article contends that Belle Terre is wholly incompatible with the Court’s modern jurisprudence on privacy and the right of intimate association. The case appears to have survived this long because …

Taking Advantage Of Opportunities In Litigotiation, John M. Lande

Faculty Publications

This article is partially based on a study in which I interviewed respected lawyers about their negotiation processes in pretrial litigation. I asked these lawyers about their negotiation procedures generally, and I asked them to describe the last case they settled, starting with the first interaction with their clients in the matter. Although this article focuses on negotiation in the litigation context, some lawyers presumably use analogous procedures in transactional matters.

Can Associations Have Priority Over Fannie Or Freddie?, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

An association’s six-month lien priority is sometimes termed a “superlien,” but there is nothing particularly “super” about it; the statute simply provides that an association has a lien with priority over the first mortgage, much like the lien of property taxes in nearly all states. An association’s total lien is effectively split into two components: a lien before the first mortgage for six months of assessments and a lien junior to the first mortgage for any delinquent assessment amount over six months’ worth. In this way, section 3-116 was intended to strike “an equitable balance between the need to enforce …

Civility (Part Ii), Douglas E. Abrams

Faculty Publications

No abstract provided.

Planning Is Critically Important For Early Dispute Resolution, John Lande

Faculty Blogs

This post pushes back against a complaint by lawyers that early mediation is a waste of time. Attempts to settle cases early in litigation can be wasteful if the lawyers haven’t properly prepared and planned the process. Some people think that “early” means that lawyers should try to resolve the ultimate issues right after all the parties have appeared in litigation. This post uses the term “early” as a shorthand for “earliest appropriate time.” To be ready to settle at the earliest appropriate time, lawyers should promptly learn the parties’ interests and the critical facts, reasonably anticipate the likely decision …

Damp Squib: The Disappointing Denouement Of The Sentencing Commission's Economic Crime Project (And What They Should Do Now), Frank O. Bowman Iii

Faculty Publications

The consolidated fraud and theft guideline, U.S.S.G. S2B1.I, has been a subject of sustained comment and critique since its adoption in 2001. Some of the critiques are technical and relate to issues such as the importance of "loss" in economic crime sentencing and the proper definition of concepts like "intended loss" and "sophisticated means." However, for the last decade or so, the dominant complaint has been that 22 Bi.i prescribes sentences that, particularly for many defendants in cases involving high loss amounts, are far too long.

Third-Party Harms, Congressional Statutes Accommodating Religion, And The Establishment Clause, Carl H. Esbeck

Faculty Publications

Those disappointed with the U.S. Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. (2014), are actively seeking ways to otherwise limit the Religious Freedom Restoration Act (RFRA). Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, wrote that when a statute seeks to accommodate a claimant’s religious beliefs or practices there must be no detrimental effect on third parties who do not share those beliefs. Although it is unclear whether Justice Ginsburg was relying on the Establishment Clause as imposing this categorical restraint on the authority of Congress, some commentators argue that her thinking necessarily rests on that clause. …

Great Value Of Students Playing Clients In Multi-Stage Simulations, John Lande

Faculty Blogs

This post describes the great results when I used multi-stage simulations in negotiation and family law dispute resolution courses. To simulate real life, I developed several simulations that started from the first client interview. I included other stages, such as (1) negotiating retainer agreements, (2) identifying additional information needed, (3) getting to know counterpart lawyers, (4) researching and negotiating about the law, (5) negotiating dispute resolution clauses, (6) preparing for negotiation with clients and counterpart lawyers, and (7) negotiating the ultimate issues. Students playing lawyers got especially valuable experiences because the students playing clients identified so strongly with their roles.

Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong

Faculty Publications

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

The Supreme Court's Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley

Faculty Publications

Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively "jurisdictional. "In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court's erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress …

The History And Future Of E-Commerce Patents, Dennis D. Crouch, Mitchell L. Terry

Faculty Publications

The past two decades have seen a great rise in the patenting of e-commerce inventions. Now, those same patents are taking an equally great fall. In a series of four recent cases, the U.S. Supreme Court has shifted the doctrine of patent eligibility and, in the process, raised the bar for e-commerce and software patents - making it more difficult to obtain and enforce those types of patents.

Everything I Know About Dispute Resolution Is Wrong – Especially What You Say About It, John Lande

Faculty Blogs

This post describes an extremely provocative discussion in a session at the ABA Section of Dispute Resolution conference.

Book Review: Private International Law In English Courts, S. I. Strong

Faculty Publications

Although debates about cooperation versus competition make for good scholarly fodder, this issue actually has an important practical component, as demonstrated by Professor Adrian Briggs of the University of Oxford in his masterful new book, Private International Law in English Courts. Like all truly superlative texts, Professor Briggs's book is deceptively accessible. The prose is not only elegant and eloquent, it is peppered with the dry wit one would expect from an Oxford don.

Civility (Part I), Douglas E. Abrams

Faculty Publications

No abstract provided.

Illusions Of Competence, John Lande

Faculty Blogs

This post riffs on BARBRI’s “State of the Legal Field Survey” reporting that “71 percent of 3L law students believe they possess sufficient practice skills. In contrast, only 23 percent of practicing attorneys who work at companies that hire recent law school graduates believe recent law school graduates possess sufficient practice skills.” Making it personal, I asked readers if they would be confident that a recent law graduate would do a good job in handling a garden-variety legal case of theirs. I wouldn’t.

Return To Political Theology, Joshua D. Hawley

Faculty Publications

There was a time when theology was called the "queen of the sciences." From the beginnings of the university in the High Middle Ages through the nineteenth century, theology formed the backbone of liberal instruction at institutions of higher learning. Those days are long past. What remains of theological investigation in most major American universities has been trans- posed into the study of religion and safely sequestered in "religious studies" departments. Few undergraduates today encounter theology as a discipline-and as for law students, well, the idea that theology might have some relevance for the study of law is regarded in …

Art Of Persuasion: Lessons From An Author Who Shaped Presidential Policy, Douglas E. Abrams

Faculty Publications

In October of 1962, the world stood on the brink of war as the United States demanded dismantling of offensive medium-range nuclear missile sites that the Soviet Union was constructing in Cuba, potentially within striking range of American cities. From behind-the-scenes accounts, we know that a new book by historian Barbara W. Tuchman, a private citizen who held no government position, contributed directly to the negotiated outcome of the Cuban Missile Crisis as the world watched and waited. After chronicling Tuchman's contribution, this article discusses her later public commentary about what she called the "art of writing,"' commentary that holds …