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Articles 1 - 30 of 62
Full-Text Articles in Law
Art Actually! The Courts And The Imposition Of Taste, Marett Leiboff
Art Actually! The Courts And The Imposition Of Taste, Marett Leiboff
Marett Leiboff
How do we read art, at least in law? The traditional approach of the courts has been to disavow, or at least avoid any discussion on matters of aesthetics or connoisseurship, or more accurately assert such a disavowal. Because whether the courts acknowledge it or not, they actively judge art, even when they say they don't. Judging art by judges, as we will see, is not a particularly edifying spectacle, but is it better for the courts to avoid judging art? In this article, I will explore what happens when the courts grapple with the problem of judging art, but …
Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger
Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger
Beau James Brock
The Fourth Amendment must be protected from police excesses. Now, law enforcement is relying upon the most hyper-technical of violations to stop a vehicle. Both attorneys and judges must guard against the temptation that the ends will justify the means, only to find out later we sold out our freedom to the golden calf of drug interdiction.
Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson
Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson
Scott Dodson
This amicus brief in support of neither party in the merits case of Sebelius v. Auburn Regional Medical Center, No. 11-1231, urges the Supreme Court to decide the question presented (whether 42 U.S.C. § 1395oo(a)(3) permits equitable tolling) without resort to jurisdictional labels.
Say What?? Confusion In The Courts Over What Is The Proper Standard Of Review For Hearsay Rulings, Todd Bruno
Say What?? Confusion In The Courts Over What Is The Proper Standard Of Review For Hearsay Rulings, Todd Bruno
Todd Bruno
Understanding and applying the hearsay rule and its exceptions is probably the most difficult and confusing task for lawyers and trial judges. Understanding and applying the proper standard of review when assessing potential errors of a trial court is probably the most difficult and confusing task for an appellate court. When combining the two concepts, appellate courts cannot figure out whether the analysis of hearsay and its exceptions involves resolution of fact questions, legal questions, or whether it is a matter of discretion of the trial court that should not be reversed unless that discretion was abused. The Sixth and …
When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff
When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff
Abigail R. Moncrieff
There was an argument that Solicitor General Donald B. Verrilli could have made—but didn’t—in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise from individual decisions to …
Essay: Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Essay: Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David Klein
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David Klein
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision-Making, Neal E. Devins, David Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 4,000 cases; federal district courts in about 1 in 2,000 cases; and state courts in about 1 in 4,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary assessment …
The Lawlessness Of Sebelius, Gregory Magarian
The Lawlessness Of Sebelius, Gregory Magarian
Gregory P. Magarian
After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate as a valid enactment under the Taxing Clause. Numerous commentators have lauded the Chief Justice for his courage and pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. He contends that the opinion is, in two senses, fundamentally lawless. First, the …
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Lee Kovarsky
Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.
Viewing The "Same Case Or Controversy" Of Supplemental Jurisdiction Through The Lens Of The "Common Nucleus Of Operative Fact" Of Pendent Jurisdiction, Douglas D. Mcfarland
Viewing The "Same Case Or Controversy" Of Supplemental Jurisdiction Through The Lens Of The "Common Nucleus Of Operative Fact" Of Pendent Jurisdiction, Douglas D. Mcfarland
Douglas D. McFarland
When a federal court has jurisdiction of a claim, supplemental jurisdiction of § 1367(a) allows the court to adjudicate all parts “of the same case or controversy under Article III.” This article argues that the best way to interpret that phrase is by examining the meaning of “common nucleus of operative fact,” the test for its ancestor pendent jurisdiction. Through that lens, “same case or controversy” means the broad grouping of facts, without regard to legal theories or categories, that a lay person would expect to be tried together. And in limning the boundaries of that grouping of facts, the …
A Modest Memoir: Justice Stevens’S Supreme Court Life, Laura K. Ray
A Modest Memoir: Justice Stevens’S Supreme Court Life, Laura K. Ray
Laura K. Ray
No abstract provided.
Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions, Ira P. Robbins
Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions, Ira P. Robbins
Ira P. Robbins
National Roundtable On Consumer And Employment Dispute Resolution: Consumer Arbitration Roundtable Summary Report, Thomas J. Stipanowich, Nancy Walsh, Lisa Blomgren Bingham, Lawrence R. Mills
National Roundtable On Consumer And Employment Dispute Resolution: Consumer Arbitration Roundtable Summary Report, Thomas J. Stipanowich, Nancy Walsh, Lisa Blomgren Bingham, Lawrence R. Mills
Thomas J. Stipanowich
This report is a summary of the discussions at the Consumer Arbitration Roundtable held at Pepperdine University on February 2-4, 3012 and co-sponsored by Pepperdine School of Law, The Straus Institute for Dispute Resolution, and Penn State University, Dickinson School of Law. It was prepared by members of the Planning Committee.
Rules, Resources, And Relationships: Contextual Constraints On Prosecutorial Decision Making, Don Stemen
Rules, Resources, And Relationships: Contextual Constraints On Prosecutorial Decision Making, Don Stemen
Don Stemen
In the American criminal justice system, prosecuting attorneys arguably enjoy broader discretion than any other system actor. Research, however, is beginning to show that prosecutorial discretion is not nearly as unconstrained as initially thought. Relying on in-depth interviews and surveys of prosecutors in two large urban/suburban county prosecutors’ offices, this article examines prosecutors’ decision making processes, exploring internal and external, formal and informal mechanisms that regulate prosecutors’ decision making. We find that prosecutorial discretion is constrained by several factors. Internal rules or policies within the prosecutor’s office often determine whether a case is accepted or rejected for prosecution, what the …
Rule 23(B) After Wal-Mart: (Re) Considering A Unitary Standard, Mollie A. Murphy
Rule 23(B) After Wal-Mart: (Re) Considering A Unitary Standard, Mollie A. Murphy
Mollie A Murphy
Abstract
For more than forty years, the requirements for class certification have been specified in Rule 23 (a) and (b). Under these provisions, a class may be certified if all the requirements of subsection (a) are satisfied, and if the class fits within one of the categories set forth in subsection (b). The court's selection of category, in turn, determines what protections beyond adequate representation must be provided absentee class members. By articulating classifications that emphasized function over formalism, the drafters of the 1966 amendments sought to bring needed clarity and certainty to the certification process.
The hoped-for certainty, however, …
Federal Common Law And The Courts’ Regulation Of Pre-Litigation Preservation, Joshua Koppel
Federal Common Law And The Courts’ Regulation Of Pre-Litigation Preservation, Joshua Koppel
Joshua M. Koppel
With the proliferation in recent years of electronically stored information and the skyrocketing cost of retaining large amounts of data, issues of preservation have played an increasing role in litigation. Companies and individuals that anticipate that they will be involved in litigation in the future may be obligated to preserve relevant evidence even before litigation is initiated. Because litigation has not yet commenced, they cannot seek clarification regarding their obligations from a court or negotiate them with an adverse party. Statutory or common law preservation duties play a large role in guiding potential litigants in this area.
The federal courts …
Rules, Resources, And Relationships: Contextual Constraints On Prosecutorial Decision Making, Don Stemen, Bruce Frederick
Rules, Resources, And Relationships: Contextual Constraints On Prosecutorial Decision Making, Don Stemen, Bruce Frederick
Don Stemen
In the American criminal justice system, prosecuting attorneys arguably enjoy broader discretion than any other system actor. Research, however, is beginning to show that prosecutorial discretion is not nearly as unconstrained as initially thought. Relying on in-depth interviews and surveys of prosecutors in two large urban/suburban county prosecutors’ offices, this article examines prosecutors’ decision making processes, exploring internal and external, formal and informal mechanisms that regulate prosecutors’ decision making. We find that prosecutorial discretion is constrained by several factors. Internal rules or policies within the prosecutor’s office often determine whether a case is accepted or rejected for prosecution, what the …
The Power To Bind: Dicta In Theory And Practice, Neal E. Devins, David E. Klein
The Power To Bind: Dicta In Theory And Practice, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 5, 000 cases; federal district courts in about 1 in 3,000 cases; and state courts in about 1 in 3,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary …
The Power To Bind: Dicta In Theory And Practice, Neal E. Devins, David E. Klein
The Power To Bind: Dicta In Theory And Practice, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 5, 000 cases; federal district courts in about 1 in 3,000 cases; and state courts in about 1 in 3,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary …
The Power To Bind: Dicta In Theory And Practice, Neal E. Devins, David E. Klein
The Power To Bind: Dicta In Theory And Practice, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 5, 000 cases; federal district courts in about 1 in 3,000 cases; and state courts in about 1 in 3,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary …
The Power To Bind: Dicta In Theory And Practice, Neal E. Devins, David E. Klein
The Power To Bind: Dicta In Theory And Practice, Neal E. Devins, David E. Klein
Neal E. Devins
The distinction between dicta and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dicta. Specifically, federal court of appeals meaningfully invoke the distinction in about 1 in 5, 000 cases; federal district courts in about 1 in 3,000 cases; and state courts in about 1 in 3,000 cases. In this essay, we report these findings, describe our coding system, and offer a preliminary …
The Exceptions Clause As A Structural Safeguard, Tara Grove
The Exceptions Clause As A Structural Safeguard, Tara Grove
Tara L. Grove
Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …