Law Commons^™

Aiding And Abetting Under The Antiterrorism Act: Despite Statutory Silence, Why Extending Liability To Aiders And Abettors Of International Terrorism Furthers Congressional Intent To Compensate Plaintiffs And Defeat Terrorist Financial Pathways, Jesse Snyder

Jesse Snyder

No abstract provided.

Labor Disputes In Professional Sports: How Federal Judges Referee Antitrust Lawsuits-- False Starts And Technical Fouls, Michael Leroy

Michael H LeRoy

Using a database of 83 published court opinions from 1970-2011, I show that players have utilized conflicting federal laws to improve their labor market mobility. They formed unions under the National Labor Relations Act, and bargained collectively with leagues. Often, however, they lacked bargaining power to modify the draft or reserve clause, which bound them to a team. Players sued, therefore, under the Sherman Act to challenge these practices as restraints of trade. Thus, players have used a dual engagement strategy of bargaining with leagues under the NLRA while holding identical negotiations under the threat of Sherman Act treble damages. …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Incommensurability, Practices And Points Of View: Revitalizing H.La. Hart’S Practice Theory Of Rules, Eric J. Miller

Eric J. Miller

The standard reading of H.L.A. Hart’s practice theory of rules is that it failed to provide a sufficient normative basis for a theory of law. That standard reading rests upon a significant misunderstanding: that Hart has an exclusionary reason approach to law. Instead, Hart understands law to be a social practice, one capable of generating valid norms that not only block the operation of moral norms, but which are wholesale incommensurable with them.

Wholesale incommensurability entails that law, as a form of social practice, constitutes a discrete normative system in which the truth-conditions of legal propositions are distinct from the …

The More Things Change, The More They Stay The Same: A Comparison Of Medical Malpractice Trials In North Carolina And Virginia, 2000-2010i, Ralph Peeples, Catherine Harris

Ralph Peeples

The paper begins with an abstract. Please see the manuscript.

Advisory Adjudication, Girardeau A. Spann

Girardeau A Spann

"Advisory Adjudication" uses the recent Supreme Court decision in Camreta v. Greene as a takeoff point to discuss the way in which inconsistent demands make our conception of judicial review incoherent. In Camreta, the Supreme Court paradoxically issued an advisory opinion in the process of holding that it did not have jurisdiction to issue advisory opinions. I argue that this illustrates the manner in which we want the Supreme Court to act as a prospective policymaking body in a tricameral legislative process, while simultaneously insisting that the Court pretend merely to be engaged in the process of retrospective dispute-resolution. I …

From Proving Pretext To Proving Discrimination: The Real Lesson Of Miller-El And Synder, Joshua Polster

Joshua Polster

In determining whether prosecutors have discriminated in their use of peremptory challenges, courts generally focus on whether defendants are able to prove that the nondiscriminatory reasons that prosecutors proffer for their challenges are pretextual. This focus is a natural result of the McDonnell Douglas framework, which the Supreme Court adopted for peremptory challenges from employment discrimination law. This Article argues that because of differences between jury selection and employment, the methods that employees use to prove pretext are not suited to peremptory challenges. Accordingly, while lower courts generally have interpreted two recent Supreme Court cases—Miller-El v. Dretke and Snyder v. …

Who’S Better At Defending Criminals? Does Type Of Defense Attorney Matter In Terms Of Producing Favorable Case Outcomes, Thomas H. Cohen

Thomas Cohen

The role of defense counsel in criminal cases constitutes a topic of substantial importance for judges, prosecutors, defense attorneys, scholars, and policymakers. What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients? These and other issues are addressed in this article analyzing felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case …

Safeguarding The Safeguards: The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into the structural federalism analysis. The breadth and depth of scholarly criticism is surprising, however, given that judges frequently choose indirect methods, including structural and process-based methods of the kinds at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another recently theorized as …

"Not That Smart": Sonia Sotomayor And The Construction Of Merit, Guy-Uriel E. Charles Mr., Mitu G. Gulati Mr., Daniel L. Chen Dr.

Guy-Uriel E. Charles Mr.

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such …

The Dialectic Of Obscenity, Brian L. Frye

Brian L Frye

The story of Flaming Creatures and the so-called “Fortas Film Festival” illustrates the dialectic of obscenity. When President Johnson nominated Justice Fortas to replace Chief Justice Warren in 1968, Fortas’s opponents investigated his record, hoping to justify a filibuster. Among other things, they discovered Jacobs v. New York, in which Fortas alone voted to reverse obscenity convictions for showing Flaming Creatures, an obscure art film that featured a transvestite orgy. Senator Thurmond showed Flaming Creatures to several senators, convinced them to join the filibuster, and blocked the Fortas nomination. Under the dialectic of obscenity, art protects pornography and pornography protects …

New Evidence On Appeal, Jeffrey C. Dobbins

Jeffrey C. Dobbins

Appellate review is limited, almost by definition, to consideration of the factual record as established in the trial court. Adhering to this record review principle, appellate courts generally reject out of hand any effort to supplement the appellate record with evidence that was not considered by the court below.

There are, however, exceptions to this traditional principle. Whether presented through amicus briefs, social-science-laden “Brandeis Briefs,” petitions for discretionary review, or other mechanisms for supplementing the record, appellate courts often consider and rely upon new evidence. The literature regarding both the traditional rule and the exceptions is limited, and neither courts …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Scott A Moss

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion …

A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers, Jarod S. Gonzalez

Jarod S. Gonzalez

This Article, entitled A Custom Fit: Tailoring Texas Civil Jury Selection Procedures to Case Tiers, advocates for changes to current Texas state civil jury selection laws. The Article contends that Texas civil jury selection procedures would benefit from a tiered approach that provides different jury selection rules depending on the nature of the case, the complexity of the case, and the amount in controversy. Under current law, each party to a civil case receives six peremptory challenges in a state district court case. This is a large amount of peremptory challenges and has led to considerable Batson problems in Texas …

Leveling The Deference Playing Field, Kathryn E. Kovacs

Kathryn E. Kovacs

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different …

Leveling The Deference Playing Field, Kathryn E. Kovacs

Kathryn E. Kovacs

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …

Electronic Discovery: Sanctioning Spoliation With An Adverse Inference Instruction, Robert A. Weninger

Robert A Weninger

This article discusses the spoliation of ESI (electronically stored evidence) in a completely non-technical way. It focuses on the law governing sanctions and not on computer technology.

Professor Richard L. Marcus, the Special Reporter to the Civil Rules Advisory Committee and a primary drafter of the 2006 amendments addressing the discovery of ESI, reviewed my article and was enthusiastic about it. The article is particularly timely because the Advisory Committee is presently considering whether to propose further amendments to address problems created by the disparate positions taken by federal courts on issues concerning sanctions for spoliation.

Courts divide over the …

Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson

Matthew J. Wilson

With globalization and the proliferation of international commercial interaction, U.S. courts commonly encounter issues governed by the laws of other sovereigns. These encounters arise by virtue of private agreements or choice-of-law rules covering contractual relationships, cross-border conduct, tortuous acts, employment matters, intellectual property rights, and various other legal foundations. Because the substantive law applied in an international lawsuit can be outcome-determinative, it is important to accurately ascertain and determine the relevant law. In fact, the proper functioning of private international law in a domestic system is based on the appropriate application of law.

U.S. federal and state courts are presumed …

Fantasyscotus: Crowdsourcing A Prediction Market For The Supreme Court, Josh Blackman, Adam Aft, Corey Carpenter

Josh Blackman

Every year the Supreme Court of the United States captivates the minds and curiosity of millions of Americans - yet the inner-workings of the Court are not fully transparent. The Court, without explanation, only decides the cases it wishes. They deliberate and assign authorship in private. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery. Sometimes the outcome falls along predictable lines; other times the outcome …

“No Fishing Poles Allowed At The Office,” And Other Suggestions On How To Limit “Fishing Expeditions” To An Outdoor Weekend Activity And Away From The Realm Of E-Discovery, Joanna K. Slusarz

Joanna Slusarz

Early settlement is usually encouraged by the courts and welcomed by most parties involved in a lawsuit. However, it may not always be the most favorable result. This idiosyncrasy arises most when the costs of continuing litigation and adjudication on the merits outweigh those of early settlement. On the other hand, early settlement raises the risk of “encourag[ing] additional, low merit cases that might not otherwise have been filed had the company chosen to litigate existing lawsuits.”

The phenomenon of electronic discovery (“e-discovery”) has exponentially increased the occurrence of the latter result. As a result, defendants, particularly large corporations with …

Making Sense Of Twombly, Edward D. Cavanagh

Edward D. Cavanagh

Abstract

In May 2007, the Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Twombly has triggered an avalanche of motions to dismiss, which, in turn, have generated thousands of judicial opinions, some of them knee-jerk reactions, other more thoughtful. It also has generated a plethora of academic commentary, much of it shrill and negative.

As the fourth anniversary of the Twombly decision approaches, the time for venting is over. Twombly is the law of the land; and the Supreme Court, having affirmed that decision in Iqbal, is not likely to shift …

Restoring The Presumption Of Innocence, Shima Baradaran

Shima Baradaran

The most commonly repeated adage in U.S. criminal justice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption’s diminution are also troubling as the number of defendants held pretrial has steadily increased such that the majority …

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …