Law Commons^™

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

Daniel Kanstroom

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …

Law And Lawyers In The U.S.: The Hero-Villain Dichotomy, Judith A. Mcmorrow

Judith A. McMorrow

Lawyers in U.S. culture are often presented in either an extremely positive or extremely negative light. Although popular culture exaggerates and oversimplifies the 'good v. bad' dynamic of lawyers, this dichotomy provides important insights into the role attorneys play in the U.S. legal system, the boundaries of legal ethics, and the extent to which the U.S. legal system is relied upon to address our society's great moral and social dilemmas.

Checking The Staats: How Long Is Too Long To Give Adequate Public Notice In Broadening Reissue Patent Applications?, David M. Longo

David M. Longo

No abstract provided.

Az Youth Summit-Questioning Interviewing Techniques, Jalae Ulicki

Jalae Ulicki

Originalism And The Aristotelian Tradition: Virtue’S Home In Originalism, Lee Strang

Lee J Strang

A concept fundamental to philosophy—virtue—is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it takes on board virtue ethics’ insights.

Originalism must articulate virtue’s role in …

Does Three Do The Trick In The Ninth? The Liberal Ninth Circuit – Myth Or Fact: How The Three Judge Panel, And A System Of Published And Unpublished Opinions Interact With Political Appointments In The Ninth Circuit, Rachel N. Agress

Rachel N. Agress

This article examines the persistent view that the Ninth Circuit is “overly liberal,” and attempts to evaluate this outlook in light of data collected regarding two variables. The first variable is the composition of individual political orientations of judges on the Ninth Circuit as compared to the political composition of other circuit courts. To achieve this comparison, this paper looks at political appointments and classified judges as “liberal” or “conservative,” based on political appointment by a Democratic or Republican president. Further, this article delineates the current percentage of “liberal” versus “conservative” judges in each circuit, comparing the average circuit court …

The More Things Change, The More They Stay The Same: A Comparison Of Medical Mal;Practice Trials In Virginia And North Carolina, Ralph Peeples

Ralph Peeples

This paper examines ten years (2000-2010) of medical malpractice trials conducted in Virginia and North Carolina. The primary source of our data are closed insurance records made available by an insurance company that provides malpractice coverage for physicians in both states. We are thus able to report on these trials in detail. We identify a number of the attributes of these trials, including demographic data, injury severity, outcomes at trial, physician specialty, medical allegations and insurer assessment of the cases. Plaintiffs were consistently more successful at trial in Virginia than in North Carolina. We discuss possible explanations for this difference, …

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll Versus Beardon, Julie M. Spanbauer

Julie M. Spanbauer

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law …

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.

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, Julie M. Spanbauer

Julie M. Spanbauer

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law …

Adoption Of English Law In Maryland, Garrett Power

Garrett Power

It served as an axiom of Maryland’s constitutional history that settlers carried with them the “rights of Englishmen” when they crossed the Atlantic. In 1642 the Assembly of Maryland Freemen declared Maryland’s provincial judges were to follows the law of England. Maryland’s 1776 Declaration of Independence left a legal lacuna--- what were to be the laws and public institutions of this newly created sovereign entity? This paper considers the manner in which the sovereign state of Maryland filled the void.

The Niqab In The Courtroom: Protecting Free Exercise Of Religion In A Post-Smith World, Adam Schwartzbaum

Adam Schwartzbaum

The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, …

Letter From Iowa: Same-Sex Marriage And The Ouster Of Three Justices, Todd E. Pettys

Todd E. Pettys

This article examines Iowa's 2010 judicial-retention election, in which Iowa voters ousted three members of the Iowa Supreme Court in response to that court's ruling that the state's statutory ban on same-sex marriage violated the Iowa Constitution.

The Interplay Between U.S. Statutory Rights And Public Policy Under The Faa And New York Convention In International Disputes, Daniel Schwarz

Daniel M. Schwarz

The “prospective waiver” doctrine allows U.S. courts to invalidate or sever arbitration clauses in otherwise valid agreements to arbitrate where arbitrating under foreign law would prevent a U.S. party from seeking relief under a U.S. statute. The loss of this opportunity is said to affront U.S. public policy. This paper acknowledges that courts’ application of this idea has resulted in the need for a more fundamental revisiting of the question of whose law should be “mandatory” in international arbitration. But more specifically, this paper proposes appropriate sets of factors for pre-arbitration courts, arbitrators, and post-arbitration enforcement courts to consider in …

Judging Indian Law: What Factors Influence Individual Justice’S Votes On Indian Law In The Modern Era, Grant Christensen

Grant Christensen

Abstract: Scholars of the Supreme Court often use a justice’s political ideology to predict their ultimate vote on Constitutional questions. While this approach may serve scholars well when questions involve hot button civil liberties issues that are the focus of confirmation hearings, ideology is in actuality a poor predictor of judicial behavior in other areas of law. This paper looks at one of the more complex – Federal Indian Law – and uses both descriptive statistics and more advanced quantitative analysis to go beyond the pure ideology and explain why individual Justices vote the way they do. Using the Fisher …

The Sacrifice Of Unarmed Prisoners To Gladiators: The Post-Aedpa Access-To-The-Courts Demand For A Constitutional Right To Counsel In Federal Habeas Corpus, Emily S. Garcia Uhrig

Emily S. Garcia Uhrig

Abstract

This article argues for a constitutional right to counsel in all initial federal habeas corpus proceedings based on access-to-the-courts doctrine. The doctrine guarantees an indigent inmate a constitutional right to meaningful access to the courts in incarceration-related litigation, including postconviction proceedings. The Supreme Court initially articulated the access right, in relevant part, as merely prohibiting states from actively interfering with an indigent inmate’s efforts at pursuing postconviction relief from a criminal judgment. Though still fairly inscrutable in dimension, in certain circumstances the access right requires states to provide affirmative assistance to inmates to ensure constitutionally adequate access to the …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order to …

The Supreme Court, Self-Persuasion, And Ideological Drift, Molly Wilson

Molly J. Walker Wilson

Whether one conceives of judicial attitudes as culturally derived, emotive values, or ideology-based policy positions, the work of behavioral law theorists, political scientists, and legal realists has amply documented the influence of personal beliefs on judicial decision-making. However, there is evidence for a previously unexplored possibility; the possibility that judges may be systematically more vulnerable to ideological extremes than those outside of the judiciary. There is reason to suspect that specific features of a jurist’s job may lead him or her inevitably toward a greater commitment to his or her own worldviews. In particular, the requirement that judges draft opinions …

Opening Pandora’S Box: An Empirical Exploration Of Judicial Settlement, Peter Robinson

Peter R. Robinson

The article is an empirical study of, among other things, what judges do when they are facilitating a settlement and they believe the outcome is substantially different from what they believe would be the usual range of outcomes at trial. The topic is important because many authors have expressed concern about the blurring of the judicial roles of settlement facilitator and decision maker. it documents that judges are largely unconcerned, which raises many policy questions.

Another piece of good news is that this is the fourth in a series of law review articles and is empirically based. A literature review …

Judging, Expertise, And The Rule Of Law, Chad M. Oldfather

Chad M Oldfather

Though we live in an era of hyper-specialization, the judiciary has for the most part remained the domain of generalists. Specialized courts exist, however, and commentators regularly claim that further judicial specialization is desirable or inevitable. Yet recent years have witnessed the beginning of a backlash against the increasing division of intellectual labor, such that it is appropriate to question the merits of judicial specialization. This article engages the existing literature on judicial specialization in two ways. First, by demonstrating that the question of judicial specialization is considerably more complex and contingent than is typically depicted. We must, for example, …

Life, Death & The God Complex: The Effectiveness Of Incorporating Religion-Based Arguments Into The Pro-Choice Perspective On Abortion, Stacy A. Scaldo

Stacy A Scaldo

While speaking on the issue of healthcare in August of 2009, President Barrack Obama told a meeting of Jewish rabbis, “We are God’s partners in matters of life and death.” While the President’s message was expressly targeting choices in healthcare and end of life decisions, the statement is representative of a shift in the public rhetoric reflective of all matters concerning life - including abortion. This, indeed, would be a remarkable change in both express policy and argument identification – one that appears to be a new weapon in the arsenal of those who identify themselves with the pro-choice movement. …

Foreign Citizens In Transnational Class Actions, Jay Tidmarsh, Linda Simard

Jay Tidmarsh

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries …

The Principle Of Complementarity In The Origins Of Federal Civil Rights Enforcement, 1866-1871, Matthew A. Smith

Matthew A Smith

When the Rome Statute of the International Criminal Court was adopted in 1998, it was praised for its potential to ensure the punishment of international crimes without subjecting states to overzealous international prosecution. The Statute’s careful balance of individual security and sovereign autonomy—achieved by employing a legal concept known as complementarity—is credited as one of its core innovations. However, complementarity’s historical roots run deeper than commentators on the Rome Statute have recognized: complementarity also played a central role over a hundred years earlier in the United States Congress’s efforts to enforce the civil rights of United States citizens. This article …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

Treaties And The Constitution: Enforcing Treaties Against The States, David Sloss

David Sloss

Since the end of the Cold War, the nation’s leading foreign affairs scholars have debated issues involving the domestic application of treaties. The debate implicates fundamental constitutional questions concerning federalism, separation of powers, and individual rights. Central to the debate is the distinction between self-executing and non-self-executing treaties. Despite deep ideological divisions between nationalists and transnationalists, partisans on both sides agree on two points: first, that the “intent of the treaty makers” is the touchstone for self-execution analysis; and second, that Chief Justice Marshall applied the intent-based doctrine in his seminal opinion in Foster v. Neilson. The consensus view is …

Treaties And The Constitution: Enforcing Treaties Against The States, David Sloss

David Sloss

Since the end of the Cold War, the nation’s leading foreign affairs scholars have debated issues involving the domestic application of treaties. The debate implicates fundamental constitutional questions concerning federalism, separation of powers, and individual rights. Central to the debate is the distinction between self-executing and non-self-executing treaties. Despite deep ideological divisions between nationalists and transnationalists, partisans on both sides agree on two points: first, that the “intent of the treaty makers” is the touchstone for self-execution analysis; and second, that Chief Justice Marshall applied the intent-based doctrine in his seminal opinion in Foster v. Neilson. The consensus view is …

Unclear And Unconvincing: The Truthiness Requirement Of California's Ballot Pamphlet Arguments, Michael Boardman

Michael Boardman

“Truthiness,” as defined by TV satirist Steven Colbert, has found its way into the English lexicon. Unfortunately for California, its principles have also been incorporated into the state’s official ballot pamphlet. Misleading, and often demonstrably false, arguments written by special interests distort the political process yet the state continues to publish and distribute them to voters with little judicial recourse. Admirably, California permits private causes of action challenging the accuracy of these arguments, but the statutory scheme it has created to govern the challenges largely fails to promote its main goal: providing a central and convenient place for voters to …

State Law, U.S. Power, Foreign Disputes: Understanding The Extraterritorial Effects Of State Law In The Wake Of Morrison V. National Australia Bank, Katherine Florey

Katherine J. Florey

The recent Supreme Court case of Morrison v. National Australia Bank embraced a sweeping version of the presumption against extraterritorial application of federal law, and in doing so dramatically restricted the potential applicability of federal securities law to foreign litigants and transactions. This development has attracted a wealth of commentary, most of which has focused on the implications for the future treatment of federal statutes that may apply to foreign conduct.

Scholars have overlooked, however, perhaps the most remarkable consequence of the Court’s opinion in Morrison: the fact that it in effects makes state law more widely applicable abroad than …