Law Commons^™

Civil Discovery: How Bad Are The Problems, Wayne Brazil

Wayne Brazil

Discusses problems exposed by the way pre-trial discovery is working in civil litigation in the United States. Experiences and complaints of lawyers, judges and legal scholars in the legal system; Role played by the courts in the discovery arena.

Pleading Guilty In Lower Courts, Malcolm M. Feeley

Malcolm Feeley

Examined is the practice of pleading guilty to petty offenses in lower courts & questioned are some of the long-standing assumptions about the dynamics of that process. It is shown that though plea bargaining of the classical type rarely occurs, the term itself & certain aspects of bargaining continue to serve important symbolic functions. Modified Author Summary.

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Indiana Law Journal

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …

Scrutinizing Federal Electoral Qualifications, Derek T. Muller

Indiana Law Journal

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.

This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering …

The Future Of The Foreign Commerce Clause, Scott Sullivan

Journal Articles

The Foreign Commerce Clause has been lost, subsumed by its interstate cousin, and overshadowed in foreign relations by the treaty power. Consistent with its original purpose and the implied, but unrefined view asserted by the judiciary, this Article articulates a broader and deeper Foreign Commerce power than is popularly understood. It reframes doctrinal considerations for a reinvigorated Foreign Commerce Clause--both as an independent power and in alliance with other coordinate foreign affairs powers--and demonstrates that increasing global complexity and interdependence makes broad and deep federal authority under this power crucial to effective and efficient action in matters of national concern.

Lawyer-Client Confidentiality: Rethinking The Trilemma, Monroe H. Freedman

Hofstra Law Review

The article discusses three ethical obligations which bear on attorney-client confidentiality in America in cases involving client perjury as of 2015, and it mentions how U.S. lawyers are required to learn as much as they can about their clients' cases, inform their clients of a lawyer's obligation to keep information confidential, and reveal confidential information to a court if an attorney knows that a client has committed perjury. The American Bar Association's ethical rules are examined.

The Curious Exclusion Of Corporations From The Privileges And Immunites Clause Of Article Iv, Stewart Jay

Hofstra Law Review

Since the mid-nineteenth century, courts consistently have held that corporations cannot be citizens for purposes of the Privileges and Immunities Clause of Article I of the U.S. Constitution. Judges reasoned that because corporations were not humans, they were unable to be “citizens” eligible for the clause’s protection against discriminatory treatment by states. Yet the Supreme Court also held that corporations were citizens for purposes of federal judicial jurisdiction, as well as “persons” under the Fourteenth Amendment. Extending these constitutional protections to corporations is based on the idea that businesses are owned by actual people who are harmed when their companies …