Law Commons^™

Choosing Judges At The Close Of The Clinton Administration, Carl W. Tobias

Law Faculty Publications

Professor Tobias suggests that federal judicial selection is one important area in which ·President Bill Clinton hopes that he will leave a legacy. The author finds that the first Clinton Administration realized much success in choosing judges who make the federal judiciary more diverse and who possess excellent qualifications. Over the last five years, however, the Administration has not been equally successful either in placing highly competent female and minority attorneys on the bench or in filling the perennial judicial vacancies, partly because the Republican Party has enjoyed a significant majority in the Senate. The author's analysis shows that similar …

Alternative Dispute Resolution At The Environmental Protection Agency, Joel B. Eisen

Law Faculty Publications

This chapter examines how the U.S. Environmental Protection Agency (EPA) uses alternative dispute resolution (ADR) methods to help resolve complex environmental disputes. In recent years, the EPA's use of ADR has increased dramatically in a wide variety of settings. The EPA has made ADR a central feature of its environmental enforcement strategy, encouraged its use in Title VI and environmental justice conflict settings, and turned to negotiated rulemaking as an alternative to the cumbersome notice-and-comment process for the development of new federal regulations. Other EPA programs, such as the Brownfields Economic Redevelopment Initiative, promote nonadversarial methods for tackling complex environmental …

Book Review, The Digital Practice Of Law: A Practical Reference For Applying Technology Concepts To The Practice Of Law, Timothy L. Coggins

Law Faculty Publications

A book review on Michael R. Arkfeld's 4th edition of, The Digital Practice of Law: a Practical Reference for Applying Technology Concepts to the Practice of Law.

The White Commission And The Federal Circuit, Carl W. Tobias

Law Faculty Publications

The Commission on Structural Alternatives for the Federal Courts of Appeals, or White Commission, ("the Commission") recently issued a report and recommendations for Congress and the President after studying the appellate courts for a year. The Commission investigation emphasized the United States Court of Appeals for the Ninth Circuit, as Congress had instructed. The centerpiece of the Commission's recommendations was a divisional arrangement for the Ninth Circuit and the remaining appellate courts as their caseloads increase. Notwithstanding this focus on the Ninth Circuit, the commissioners compiled a substantial amount of objective empirical data and some subjective information on the other …

The Next Step For The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

Professor Arthur Hellman recently published a trenchant critique of the report compiled by the Commission on Structural Alternatives for the Federal Courts of Appeals. In The Unkindest Cut: The White Commission Proposal to Restructure the Ninth Circuit, he emphasizes that the report adduced little empirical data which demonstrate that the Ninth Circuit operates inefficaciously. Indeed, the commissioners candidly declared: "There is no persuasive evidence that the Ninth Circuit ... is not working effectively ... .'' Despite this admission, the Commission prescribed drastic change with a divisional concept, which Professor Hellman finds flawed. He thus urges that Congress "reject the proposal …

Congress And The 2000 Federal Civil Rules Amendments, Carl W. Tobias

Law Faculty Publications

In April 2000, the United States Supreme Court promulgated, and Chief Justice William H. Rehnquist transmitted to the United States Congress, a comprehensive package of amendments to the Federal Rules of Civil Procedure. The Judicial Conference of the United States, the policymaking arm of the federal courts, had forwarded these proposals to the Supreme Court in September 1999, and the Justices transmitted the amendments to Congress without making any modifications. The new group of federal rules amendments warrants assessment for two reasons. First, a few provisions in the package of revisions are comparatively controversial and could significantly change important aspects …

Civil Justice Delay And Empirical Data: A Response To Professor Heise, Carl W. Tobias

Law Faculty Publications

One decade ago, Congress undertook an ambitious, controversial effort to reduce expense and delay in the federal civil justice system. The Civil Justice Reform Act ("CJRA") of 1990 instituted unprecedented nationwide experimentation by requiring that all ninety-four federal district courts scrutinize their civil and criminal dockets and then promulgate and apply numerous procedures which district judges believed would save cost and time in civil litigation. Congress also prescribed rigorous assessment of the six principles, guidelines, and techniques of litigation management and expense and delay reduction that federal districts in fact adopted and enforced. Lawmakers provided for an expert, independent evaluator …

Print No More: U.S. Code, Code Of Federal Regulations, And The Federal Register, Timothy L. Coggins

Law Faculty Publications

If the United States Congress follows in the direction that it has been moving recently, the United States Code (2000 edition), the Code of Federal Regulations, the Federal Register, the official United States Reports, along with many other primary legal materials currently published and distributed to libraries through the Federal Depository Library Program (FDLP), will no longer be available in print for attorneys, librarians, legal assistants, and citizens. Congress has directed the Government Printing Office (GPO) to move toward electronic dissemination of materials and is reducing GPO’s funding so significantly that GPO soon may no longer publish these and other …

Judicial Selection At The Clinton Administration's End, Carl W. Tobias

Law Faculty Publications

During his presidency, Bill Clinton appointed almost half of the presently sitting federal appellate and district court judges. He, therefore, can justifiably claim that he has left a lasting imprint on the federal judiciary. During his 1992 presidential campaign, Clinton promised to choose intelligent, diligent, and independent judges who would increase balance, vigorously enforce fundamental constitutional rights, and possess measured judicial temperament. The initial achievement of the Clinton Administration in selecting members of the federal bench, who make it more diverse and who are exceptionally qualified, demonstrates that the President fulfilled these campaign pledges. President Clinton named unprecedented numbers and …

The Federal Appeals Courts At Century's End, Carl W. Tobias

Law Faculty Publications

The Commission on Structural Alternatives for the Federal Courts of Appeals submitted its report and suggestions to the United States Congress and the President in December 1998. The Commission spent ten months studying the "structure and alignment of the Federal Court of Appeals system, with particular reference to the Ninth Circuit," and two months developing "recommendations for such changes in circuit boundaries or structure as may be appropriate for the expeditious and effective disposition of the caseload of the Federal Courts of Appeals, consistent with fundamental concepts of fairness and due process." The centerpiece of the Commission's proposal is the …

An Inquiry Into Indigenous Political Participation: Implications For Tribal Sovereignty, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

When we set out to examine the various forms and patterns of indigenous political participation in the three polities they are connected to—tribal, state, and federal—we are stepping into a most complicated subject matter. It is complicated in large part because Indians are citizens of separate extra-constitutional nations whose members have only gradually been incorporated in various ways by various federal policies and day to day interactions with non-Indians. Tribal nations, of course, have never been constitutionally incorporated and still retain their standing as separate political bodies not beholden to either federal or state constitutions for their existence.

Rethinking Intervention In Environmental Litigation, Carl W. Tobias

Law Faculty Publications

Intervention in Public Law Litigation: The Environmental Paradigm (Environmental Paradigm) substantially enhances understanding of intervention in federal environmental disputes. These controversies are a critical type of modern civil lawsuit and perhaps constitute the quintessential form of public law litigation. Professor Peter Appel comprehensively reviews the lengthy history of the intervention mechanism, scrutinizes the substantial 1966 revision of Federal Rule of Civil Procedure 24, and closely examines the phenomenon of public law litigation and intervention in it.

Professor Appel finds that federal district court judges liberally grant requests to intervene in these cases, although he asserts that some legal scholars have …

Filling The Federal Appellate Openings On The 9th Circuit, Carl W. Tobias

Law Faculty Publications

Throughout much of the 1990s, the United States Court of Appeals for the 9th Circuit has operated with fewer than the court's complete complement of 28 active judges. Since 1995, when Republican senators representing states of the Pacific Northwest instituted a serious campaign to divide the 9th Circuit, the court has essentially functioned absent one-fourth of its membership. The large number of openings and their protracted nature, as well as a steadily expanding docket, have demanded that the 9th Circuit depend on many appellate and district court judges who are not active members of the 9th Circuit when staffing three-judge …

A Realistic Consensus Approach To The Insurance Law Doctrine Of Reasonable Expectations, Peter N. Swisher

Law Faculty Publications

This article's fundamental premise is that, over the past three decades, despite all the debate and confusion surrounding the underlying theory and practice of the insurance law doctrine of reasonable expectations, a modem consensus approach has finally emerged within the academic community and the courts and among insurance law practitioners involving a realistic and viable application of the doctrine to the needs of contemporaryground" synthesis of traditional, objective, and contractually based reasonable expectations principles grafted onto elements of the more modem Keeton formulation of the doctrine. Moreover, this realistic consensus approach to the doctrine of reasonable expectations is both theoretically …

A Constitutional Conundrum: The Resilience Of Tribal Sovereignty During American Nationalism And Expansion: 1810-1871, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Judge Michael Hawkins addresses a number of important issues in his essay on John Quincy Adams' evolving understanding and relationship with slavery and the variegated role that law played in the politics of slavery and the slavery of politics. The essay demonstrates the importance of human personality in influencing and being influenced by political and legal processes. At its heart, the Article is a legal and historical study of the moral dimension and inherent contradictions facing Adams, in particular, and the American Republic, in general, regarding the existence and persistence of the institution of slavery in a nation built upon …

The Politics Of Meaning: Law Dictionaries And The Liberal Tradition Of Interpretation, Gary L. Mcdowell

Law Faculty Publications

At least since John Cowell's Interpreter was adjudged by the Committee on Grievances of the House of Commons in 1610 to be "very unadvised, and undiscreet, tending to the disreputation of the honour and power of the common laws" have law dictionaries been objects of occasional controversy. Yet legal dictionaries, as well as dictionaries more generally, have remained a constant resource in American law for those seeking to give meaning to the words of both statutes and constitutional provisions. They have appeared in the pages of the reports since the beginning of the republic; a majority of the justices of …

The Employment Law Decisions Of The October 1999 Term Of The Supreme Court: Review And Analysis, Ann C. Hodges

Law Faculty Publications

The five employment law cases decided by the Supreme Court during the October 1999 Term bring to nineteen the total number of significant employment law cases decided by the Court during the last three terms. The October 1997 Term cases were marked by primary focus on employer liability, under Title VII of the Civil Rights Act of 1964, for sexual harassment by supervisors. Primary focus during the 1998 Term was on disability discrimination under the Americans with Disabilities Act of 1990 (ADA) and on the constitutionality of actions brought by private parties against states under the Fair Labor Standards Act …

Note, Space-Age Medicine, Stone-Age Government: How Medicare Reimbursement Of Telemedicine Services Is Depriving The Elderly Of Quality Medical Treatment, Kristen Jakobsen Osenga

Law Faculty Publications

We have the technology. What is needed is government financial commitment, so argues Kristen Jakobsen in the following discussion of "telemedicine." The term refers to the delivery of health care services by means of modern telecommunications technology. According to Ms. Jakobsen, the telephone, the fax machine, the Internet, and interactive audio-visual transmissions hold the key to making medical care more accessible and less expensive. Potential beneficiaries include vast populations of elderly in rural areas, who tend to be remote from upscale health care facilities and in need of the wherewithal to reach them. Standing in the way, in Ms. Jakobsen's …

A Unifying Theory Of Sex Discrimination, Henry L. Chambers, Jr.

Law Faculty Publications

The structure of this Article is as follows. Part I consists of a hypothetical situation which will be referenced throughout the Article to illustrate sex discrimination jurisprudence. Part II describes the Supreme Court's disparate treatment jurisprudence. Part III describes the Court's restructuring of sexual harassment jurisprudence. Finally, Part IV examines the elimination of the distinction between sexual harassment and disparate treatment and its implications, including the new hostile work environment disparate treatment claim.

Employer Prerogative And Employee Rights: The Never-Ending Tug-Of-War, Henry L. Chambers, Jr.

Law Faculty Publications

Where there are employees and employers, there will be employment relationships in need of mending. That reality is enough to guarantee that employment law will always be a warm, if not hot, area of the law. The article and notes on employment law in this issue demonstrate that the development of employment law continues apace.

1999 Annual Meeting: Strategic Initiatives Sessions, Timothy L. Coggins

Law Faculty Publications

The Superintendent of Documents with the U.S. Government Printing Office ... the Law Library Director of the Tel Aviv University School of Law ... Justices of the Supreme Courts of Virginia and Oklahoma ... Deans of three library schools .. . Several law school professors .. . the President of the American Judicature Society ... Judges from other courts ... plus many MLL members. These were among the more than 45 individuals who participated in the "Strategic Initiatives" sessions following the Sunday and Monday programs at the 1999 Annual Meeting and Conference in Washington, D.C, in July. The final report …

Wills, Trusts And Estates (Annual Survey Of Virginia Law, 1999-2000), J. Rodney Johnson

Law Faculty Publications

In its 2000 Session, the General Assembly enacted legislation dealing with wills, trusts, and estates that added, amended, or repealed a number of sections of the Virginia Code. It also carried over one significant bill to the 2001 Session. In addition, there were nine Supreme Court of Virginia opinions, one United States District Court opinion, two Virginia Circuit Court opinions, and one Attorney General's opinion raising issues of interest to the general practitioner as well as the specialist in wills, trusts, and estates during the period covered by this review. This article reports on all of these legislative and judicial …

Chief Judge Martin And The Modern Sixth Circuit, Carl W. Tobias

Law Faculty Publications

In his article, In Defense of Unpublished Opinions, 60 Ohio St. LJ. 177 (1999), Chief Judge Boyce F. Martin, Jr. has recently and eloquently championed judicial reliance on unpublished opinions. Judge Martin, who speaks from more than two decades of service on the United States Court of Appeals for the Sixth Circuit, substantially improves understanding of this court. Judge Martin informally and pragmatically scrutinizes critical problems that confront the modern regional circuits through the prism of unpublished determinations while elucidating judicial dependence on these decisions. Judge Martin apologizes for the dearth of empirical data on the decisions' invocation, but the …

Reinventing Tax Expenditure Reform: Improving Program Oversight Under The Government Performance And Results Act, Mary L. Heen

Law Faculty Publications

In this Article, Professor Heen examines the new framework for performance-based management and oversight of federallyfunded programs, describes emerging efforts to incorporate tax expenditures into the performance review process, and places these developments into context by evaluating past experiences with tax expenditure reform. Professor Heen concludes that the new framework provides a promising executive branch mechanism for achieving a more coordinated review of functionally related government programs, whether funded or implemented through direct expenditures, tax expenditures, or regulatory programs. However, as past experience illustrates (including, for example, experience with employment subsidies such as the Work Opportunity Tax Credit and the …

Natural Resources And The White Commission Report, Carl W. Tobias

Law Faculty Publications

Individuals and entities with concerns regarding environmental issues as well as those concerned about the federal judicial system have carefully followed the debate over the possible division of the United States Court of Appeals for the Ninth Circuit that has been raging since 1995. During the first session of the 105th Congress, the Senate approved an appropriations rider, which would have established a new Twelfth Circuit including Alaska, Arizona, Hawaii, Idaho, Montana, Oregon, Washington, Guam, and the Northern Mariana Islands, and would have left California and Nevada in the Ninth Circuit. That action was very important because neither house of …

Another Way Of Thinking About Section 105(A) And Other Sources Of Supplemental Law Under The Bankruptcy Code, David G. Epstein

Law Faculty Publications

In this article we discuss the role of 105 in bankruptcy law generally rather than in specific bankruptcy cases. We mention a few cases as examples. Mainly, we aim at 105. We work toward an understanding of this section that explains our view of the bottom issue that determines the proper role and use of 105 and also the proper role and use of supplemental law generally.

Balancing Hearsay And Criminal Discovery, John G. Douglass

Law Faculty Publications

and prosecutors. Part I of this Article argues that the conventional theory of hearsaydiscovery balance does not reflect the reality of modem federal practice. An imbalance has arisen because, in the last quarter century, developments in the law of evidence and confrontation are at odds with developments-or one might say nondevelopments-in the law of criminal discovery. Since enactment of the Federal Rules of Evidence in 1975, both the law of evidence and modem Confrontation Clause doctrine have evolved toward broader admission of hearsay in criminal cases. Contrary to conventional theory, that evolution has at least matched-and probably has outpaced-the trend …

Muslim Women's Rights In The Global Village: Challenges And Opportunities, Azizah Y. Al-Hibri

Law Faculty Publications

In this age of information technology that shrank our world into a global village, it is fair to ask how this recent development has impacted Muslim women's rights across the world. Having just traveled through nine Muslim countries, ranging from Pakistan and Bangladesh to the Gulf States, Egypt, Syria, and Lebanon, I would answer that it is leading, slowly but surely, to reassessment and change.' Attempts to accelerate the pace of this change, however, without full understanding of its complex topology, and the deep-rooted commitment by most Muslim women to spiritual and cultural authenticity, could halt or even reverse this …

Into The Wind: Rhett Butler And The Law Of War At Sea, John Paul Jones

Law Faculty Publications

In this article, Prof. Jones reviews Scarlett O'Hara reported in the novel Gone with the Wind about Rhett Butler's career as a blockade runner for the Confederacy, and speculates about what the law of war at sea might have meant for Captain Butler's commercial operations. He focuses on three aspects of the law of war at sea-capture or prize, blockade, and neutrality.

Judicial Review Of Arbitration Awards On Public Policy Grounds: Lessons From The Case Law, Ann C. Hodges

Law Faculty Publications

A review of the case law demonstrates that most of the labor arbitration awards challenged on public policy grounds involve reinstatement of discharged employees. This article analyzes 138 private sector federal cases in which labor arbitration ·awards have been contested on public policy grounds. All the cases reviewed are discharge cases in which arbitration awards reversing the terminations were challenged. The article attempts to determine the factors that influence courts to uphold or overturn arbitration awards. This analysis will provide assistance to arbitrators in writing opinions that are less subject to challenge, and to employers, unions, and their attorneys in …