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Articles 1 - 12 of 12
Full-Text Articles in Law
“Rule Of Inclusion" Confusion, Dora Klein
“Rule Of Inclusion" Confusion, Dora Klein
Faculty Articles
Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …
#Sowhitemale: Federal Procedural Rulemaking Committees, Brooke D. Coleman
#Sowhitemale: Federal Procedural Rulemaking Committees, Brooke D. Coleman
Faculty Articles
Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That is 94 percent of the committee membership. Of that same group, 513—or 81 percent—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while experts—are …
#Sowhitemale - Federal Civil Rulemaking, Brooke D. Coleman
#Sowhitemale - Federal Civil Rulemaking, Brooke D. Coleman
Faculty Articles
116 out of 136. That is the number of white men who have served on the 82-year old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate even in the context of the white-male-dominated legal profession. Were the rules simply a technical set of instructions made by a neutral set of experts, perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rulemakers—while expert—are …
Judging Law In Election Cases, Michael S. Kang, Joanna Shepherd
Judging Law In Election Cases, Michael S. Kang, Joanna Shepherd
Faculty Articles
In Part I, we introduce our earlier work on election cases and judicial partisanship before setting forth our new approach to studying the influence of law on judicial decisionmaking. We describe the special nature of the election cases in our database that allow more persuasive inferences of judicial partisanship than typically derived in empirical work on judicial behavior. We then explain our new approach for measuring case strength based on counterpartisan decisionmaking by judges. In Part II, we apply our approach to case strength to our dataset and present our results. In a nutshell, partisanship appears to matter as expected …
Discovering Innovation: Discovery Reform & Federal Civil Rulemaking, Brooke D. Coleman
Discovering Innovation: Discovery Reform & Federal Civil Rulemaking, Brooke D. Coleman
Faculty Articles
Federal civil rulemaking—the process by which the Federal Rules of Civil Procedure are created and maintained—has simultaneously been described as a crisis and a crowning achievement. This Article departs from this binary and pragmatically turns to a consideration of how the committee operates. Using the lens of discovery reform, this Article examines how the rulemaking process has evolved over the past 35 years. The ups and downs of discovery reform have inspired the committee to adopt many modern rulemaking innovations. Those innovations, this Article argues, are critical to the success of the rulemaking process because they provide rulemakers with better …
The Long Shadow Of Bush V. Gore: Judicial Partisanship In Election Cases, Michael S. Kang, Joanna M. Shepherd
The Long Shadow Of Bush V. Gore: Judicial Partisanship In Election Cases, Michael S. Kang, Joanna M. Shepherd
Faculty Articles
Bush v. Gore decided a presidential election and is the most dramatic election case in our lifetime, but cases like it are decided every year at the state level. Ordinary state courts regularly decide questions of election rules and administration that effectively determine electoral outcomes hanging immediately in the balance. Election cases like Bush v. Gore embody a fundamental worry with judicial intervention into the political process: outcome-driven, partisan judicial decisionmaking. The Article investigates whether judges decide cases, particularly politically sensitive ones, based on their partisan loyalties more than the legal merits of the cases. It presents a novel method …
One Percent Procedure, Brooke D. Coleman
One Percent Procedure, Brooke D. Coleman
Faculty Articles
Political rhetoric about the one percent is pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The creme de la creme of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while …
Standards Of Legitimacy In Criminal Negotiations, Wesley Macneil Oliver, Rishi Batra
Standards Of Legitimacy In Criminal Negotiations, Wesley Macneil Oliver, Rishi Batra
Faculty Articles
Scholarship on negotiation theory and practice is rich and well developed. Almost no work has been done, however, to translate to the criminal context the lessons learned about negotiation from extensive empirical study using the disciplines of economics, game theory, and psychology. This Article suggests that defense lawyers in criminal negotiations can employ tools frequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to …
Developing Environmental Law For All Citizens, Patricia W. Moore, Eliana S. Pereira, Gillian Duggin
Developing Environmental Law For All Citizens, Patricia W. Moore, Eliana S. Pereira, Gillian Duggin
Faculty Articles
On 20 May 2002, Timor-Leste became a country. Its Constitution, which came into force on 20 May 2002, is based on civil law, with many similarities to Portugal's legal system. The Constitution also laid the foundation for environmental law, which the government has been developing ever since. This overview of the development of environmental law in Timor-Leste describes the constitutional provisions that are the source of environmental law in the country; presents the policy basis for environmental law; reviews the legal instruments governing the environment that the government has adopted since 2002; introduces draft laws under consideration at the end …
Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra
Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra
Faculty Articles
There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …
The Rule Of Law In China And The Prosecution Of Li Zhuang, Vincent R. Johnson, Stephen C. Loomis
The Rule Of Law In China And The Prosecution Of Li Zhuang, Vincent R. Johnson, Stephen C. Loomis
Faculty Articles
The rule of law is a philosophical concept, an ideal against which any legal system can be measured. Whether China adheres to the rule of law is critical not only to people in China but also to other nations that look to China for leadership. Serious questions can be raised about whether the recent Chongqing da hei fell short of compliance with the rule of law in the criminal law field. This article considers the Li Zhuang case from a comparative perspective rooted in legal principles that resonate cross-culturally. The article recounts the recent development of a new Chinese legal …
Empathy's White Elephant: Responding To The Subprime Mortgage Crisis Without Denigrating The Poor, Adam J. Macleod
Empathy's White Elephant: Responding To The Subprime Mortgage Crisis Without Denigrating The Poor, Adam J. Macleod
Faculty Articles
Empathy is the new coverture. Before state legislatures abolished it in the nineteenth century, the plea of coverture nullified any attempts by a married woman to exercise sovereignty over her property. Just as coverture did to married women, the now-well-known call for empathy in our nation's judgments threatens to deny poor borrowers, as a class, the freedom and responsibility to manage their assets. Empathy, as the ideal judge would employ it, would impede the agency of, and thus denigrate, persons within that class. The injustice (and ground for the ultimate abolition) of coverture arose from its failure to respect women …