Law Commons^™

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Thomas W. Mitchell

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo

Michael L Perlin

Abstract:

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Amicus Brief On Behalf Of The Leo T. Mccarthy Center For Public Service And The Common Good And 44 Housing Scholars To California Supreme Court In California Building Industry Association V. City Of San Jose (S212072), Tim Iglesias, David Rusk, Jan Breidenbach, Nico Calavita, Steven Menendian, John A. Powell, Ofurhe Arnica Igbinedion, Samir Gambhir, Eli Moore

john a. powell

The briefs of other parties in the litigation emphasized inclusionary zoning’s goal of increasing the supply of affordable housing. This brief focuses on inclusionary zoning’s goal of promoting social inclusion and integration by locating affordable housing in the right location. The brief explains how economic and racial segregation deny equality of opportunity to low and moderate income families because segregation limits their potential for economic and social mobility by restricting access to the primary means of mobility, e.g. employment and education. Drawing from a wide array of empirical and other studies the brief demonstrates how inclusionary zoning is an effective …

Defining “Family” For Zoning: Contemporary Policy Challenges, Legal Limits And Options, Tim Iglesias

Tim Iglesias

Single family zones are ubiquitous, diversely-defined and both popular and controversial. Much of the controversy stems from who is excluded from living in these zones by the definition of “family.” After reviewing single family zones, policy rationales for them, and the basic types of definitions of family, this article surveys contemporary policy challenges and legal limits to definitions of “family.” Recognizing localities’ diverse contexts, the article articulates how localities can reassess their definitions and identifies relevant considerations.

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

Irene Scharf

The case alerted me to the continuing issue concerning the treatment of alleged violations of Fourth Amendment rights in immigration court, with this article the result of research conducted relating thereto. Beyond reviewing the relevant views of the federal courts of appeals; the administrative tribunal that handles appeals of immigration court cases, the Board of Immigration Appeals (BIA); and even local immigration courts; I consider whether the jurisprudence has remained static since the Supreme Court's watershed opinion on the issue about twenty-five years ago. I also offer suggestions as to how to effectively, fairly, and efficiently resolve the issues raised …

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron

Charles H. Baron

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's …

Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs’ Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss

Scott A Moss

For a major field, employment discrimination suffers surprisingly low-quality plaintiff’s lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for won/loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses. These findings are puzzling; in a major legal service market, how …

A Home With Dignity: Domestic Violence And Property Rights, Margaret Johnson

Margaret E Johnson

This Article argues that the legal system should do more to address intimate partner violence and each party’s need for a home for several reasons. First, domestic violence is a leading cause of homelessness and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides that continuing to share a home with the person who abused her receives little or no system support, despite the evidence that this decision could most effectively reduce the violence. The legal system’s current failings result from its …

In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis

John F. Preis

Framing Inclusionary Zoning: Exploring The Legality Of Local Inclusionary Zoning And Its Potential To Meet Affordable Housing Needs, Tim Iglesias

Tim Iglesias

Whether local inclusionary zoning (IZ) ordinances can make significant contributions towards meeting affordable housing needs depends in large part on its legality. Courts have not developed a consistent jurisprudence regarding IZ ordinances. The legality of IZ ordinances depends upon how they are framed by the governments who enact them, the opponents who challenge them, and the courts that decide the cases. After a brief introduction, this article explores why framing is possible and likely in judicial review of IZ as well as why it matters. Next, the article analyzes the case law to demonstrate how framing has operated to affect …

Exclusionary Zoning Enforcement, Passé Or Alive And Kicking?, Tim Iglesias

Tim Iglesias

This article reviews several recent state cases challenging zoning actions as exclusionary. It identifies patterns in the cases and finds that under certain circumstances courts will limit local governments’ exclusionary actions.

Moving Beyond Two-Person-Per-Bedroom: Revitalizing Application Of The Federal Fair Housing Act To Private Residential Occupancy Standards, Tim Iglesias

Tim Iglesias

Moving Beyond the Two-Person-Per-Bedroom Standard: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards

Tim Iglesias

Abstract

New empirical evidence demonstrates that the common residential occupancy standard of two-persons-per-bedroom substantially limits the housing choices of many thousands of families, especially Latinos, Asians and extended families. The federal Fair Housing Act makes overly restrictive policies illegal, but the enforcement practices of the U.S. Department of Housing and Urban Development (HUD) have enabled the two-persons-per-bedroom standard to become de facto law. This article urges HUD to use its regulatory authority to remedy the situation and offers several solutions. …

The Preiser Puzzle: Continued Frustrating Conflict Between The Civil Rights And Habeas Corpus Remedies For State Prisoners, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

What Do We Mean By An Independent Judiciary, Michael P. Seng

Michael P. Seng

Judicial independence has roots in separation of powers and in ethical standards that require judges to be competent and impartial. Judicial independence depends upon society having faith in the integrity of the courts. Accountability is thus the handmaid of an independent judiciary. This article defines both the structure and the ethical standards that insure an independent judiciary.

Race, Class, And Legal Ethics In The Early Naacp (1910-1920), Susan D. Carle

Susan D. Carle