Law Commons^™

A First Look At The Proposed 'Fraudulent Joinder Prevention Act Of 2015', Arthur D. Hellman

Testimony

Almost half a century ago, the American Law Institute observed, “The most marked abuse has been joinder of a party of the same citizenship as plaintiff in order to defeat removal on the basis of diversity jurisdiction. Such tactics have led to much litigation, largely futile, on the question of fraudulent joinder.” Over the last half century, the volume of litigation on this question has only increased. In response, Congress is now actively considering legislation to address the problem of fraudulent joinder.

The bill is H.R. 3624, the “Fraudulent Joinder Prevention Act of 2015” (FJPA). The FJPA seeks to prevent …

Carter, Tim Lee, 1910-1987 - Relating To (Sc 2931), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid only for Manuscripts Small Collection 2931. Materials relating to Tim Lee Carter, a Tompkinsville, Kentucky physician and member of the U.S. Congress from 1965-1981. Includes clippings, biographical data, correspondence relating to medical malpractice legislation, and programs, memoranda and publicity relating to the opening of the Carter Congressional Collection at Western Kentucky University. Also includes a pencil sketch of Carter.

Child Marriage Legislation In The Asia-Pacific Region, Elisa Scolaro, Aleksandra Blagojevic, Brigitte Fillion, Venkatraman Chandra-Mouli, Lale Say, Joar Svanemyr, Marleen Temmerman

Obstetrics and Gynaecology, East Africa

Child marriage is a human rights violation that robs a girl of her childhood, puts her health, growth, and development at risk, disrupts her education, limits her opportunities for empowerment and social development, and increases her risk of exposure to violence and abuse (for a review of the evidence on the negative effects of child marriage on girls and their children, see Parsons et al. 2015, in this issue). While child marriage is not mentioned specifically in the 1989 Convention on the Rights of the Child (CRC), the Convention does contain a provision requiring governments to abolish “traditional practices prejudicial …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew E. Taslitz

School of Law Faculty Publications

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew E. Taslitz

School of Law Faculty Publications

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

School of Law Faculty Publications

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

All Faculty Scholarship

The United States, it is said, is a common law country. The genius of American common law, according to American jurists, is its flexibility in adapting to change and in developing new causes of action. Courts make law even as they apply it. This permits them better to do justice and effectuate public policy in individual cases, say American jurists.

Not all Americans are convinced of the virtues of this American common law method. Many in the public protest, we want judges that apply and do not make law. American jurists discount these protests as criticisms of naive laymen. They …

The Case Against Federalizing Trade Secrecy, Christopher B. Seaman

Scholarly Articles

Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights.

This Article engages in the first systematic critique of the claim that federalizing …

Testimony Before The House Committee On Energy And Commerce, Hearing On Patent Demand Letter Practices And Solutions, Paul Gugliuzza

Faculty Scholarship

A small number of patent holders have been abusing the patent system. These patent holders blanket the country with thousands of letters demanding that the recipients purchase a license for a few thousand dollars or else face an infringement suit. The letters are usually sent to small businesses and nonprofits that do not have the resources to investigate allegations of patent infringement. And the letters often contain false or misleading statements designed to scare the recipient into purchasing a license without investigating the claims of infringement. In an attempt to address this problem, eighteen states have recently passed statutes that, …

Newsroom: Horwitz On Traffic Obstruction Bills, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Chevron For Juries, William Ortman

Law Faculty Research Publications

No abstract provided.

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …

The Origins Of Legislation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to …

Legislative Responses To Patent Assertion Entities, David O. Taylor

Faculty Journal Articles and Book Chapters

While the existence of patent assertion entities is not new, in recent years they have proliferated, spawning debate concerning their impact on the patent system and, more broadly, on technological innovation. Despite the fear that they instill in their targets — or perhaps because of it — patent assertion entities arguably serve a beneficial purpose in the patent system. Theoretically they should be able to help individual inventors and small businesses, in particular, obtain a return on their investment in research and development. To the extent patent assertion entities assert patent claims that should be held invalid, not infringed, or …

A Primer: Air And Water Environmental Quality Standards In The United State, Jason J. Czarnezki, Siu Tip Lam, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

The Promises And Pitfalls Of State Eyewitness Identification Reforms, Nicholas A. Kahn-Fogel

Faculty Scholarship

This article provides a comprehensive analysis of state-based eyewitness identification reforms, including legislative directives, evidentiary rules, and judicial interpretations of state constitutions as providing greater protection against the use of unreliable eyewitness evidence than the United State Supreme Court offered in its 1977 decision in Manson v. Brathwaite. While previous scholarship has included thorough consideration of a single state's eyewitness law, state-by-state analysis of a sub-issue in eyewitness law, and brief general surveys of state approaches to eyewitness reform, this article adds to the current body of scholarship with an in-depth evaluation of eyewitness identification law in states that have …

Normalizing Disability In Families, Mary Crossley

Articles

In “Selection against Disability: Abortion, ART, and Access,” Alicia Ouellette probes a particularly vexing point of intersection between ART (assisted reproductive technology) and abortion: how negative assumptions about the capacities of disabled persons and the value of life with disability infect both prospective parents’ prenatal decisions about what pregnancies to pursue and fertility doctors’ decisions about providing services to disabled adults. This commentary on Ouellette’s contribution to the symposium titled “Intersections in Reproduction: Perspectives on Abortion and Assisted Reproductive Technologies" first briefly describes Ouellette’s key points and her article’s most valuable contributions. It then suggests further expanding the frame of …

The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson

All Faculty Scholarship

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.

Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski

Journal Articles

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …

Federal Securities Fraud Litigation As A Lawmaking Partnership, Jill E. Fisch

All Faculty Scholarship

In its most recent Halliburton II decision, the Supreme Court rejected an effort to overrule its prior decision in Basic Inc. v. Levinson. The Court reasoned that adherence to Basic was warranted by principles of stare decisis that operate with “special force” in the context of statutory interpretation. This Article offers an alternative justification for adhering to Basic—the collaboration between the Court and Congress that has led to the development of the private class action for federal securities fraud. The Article characterizes this collaboration as a lawmaking partnership and argues that such a partnership offers distinctive lawmaking advantages. …

Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …

Judging Statutes, Peter L. Strauss

Faculty Scholarship

Chief Judge Robert Katzmann has written a compelling short book about statutory interpretation. It could set the framework for a two- or three-hour legislation class, supplemented by cases and other readings of the instructor's choosing. Or it might more simply be used as an independent reading assignment as law school begins, to apprise 21st-century law students just how important the interpretation of statutes will prove to be in the profession they are entering, and how unsettled are the judiciary's means of dealing with them. It should be required reading for all who teach in the field.

Making Sausage: What, Why And How To Teach About Legislative Process In A Legislation Or Leg-Reg Course, Deborah A. Widiss

Articles by Maurer Faculty

Although a rapidly growing number of law schools require students to take a course on legislation, many of these courses teach very little about how laws are actually enacted. This essay, written for a special issue of the Journal of Legal Education, argues that study of the legislative process helps students interpret and apply statutory language.

The essay surveys existing text books and supplemental resources that could be easily integrated into a Leg-Reg or Legislation class to explain modern Congressional procedure. The focus is the multiple distinct paths that bills may take through a legislative body and the written …

Regulating Law Enforcement's Use Of Drones: The Need For State Legislation, Michael L. Smith

Faculty Articles

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on drones tends to focus on how courts, rather than legislative bodies, can restrict the government's use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state …