Law Commons^™

Introduction: New Models For Prosecutorial Accountability, Russell Shapiro

Cardozo Law Review de•novo

The criminal justice system in the United States was established on a simple notion: “that it is better that ten guilty persons escape, than that one innocent suffer.” It is for this reason that a prosecutor’s burden at trial is so demanding, requiring proof beyond a reasonable doubt. Yet, while a vast majority of prosecutors are committed to the highest ethical standards, with troubling frequency, some high profile exonerations shed light on systemic problems, most often involving failures by prosecutors and other law enforcement officials to disclose exculpatory and impeachment evidence as required by Brady v. Maryland.

To address …

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

Conspiracy As Contract, Laurent Sacharoff

Hofstra Law Faculty Scholarship

This article considers the central concept of criminal conspiracy – the agreement. It shows how both courts and scholars have almost entirely failed to define it. Even more surprisingly, neither discusses how "agreement" in criminal conspiracy compares with the agreement in contract law. Instead, courts have diluted the agreement requirement by substituting "mutual understanding" or "slight connection," leading to uncertainty, unfairness, and a profusion of conspiracy convictions for mere presence or association.

This article argues courts should define agreement, and do so as an exchange of promises between the conspirators to commit a crime. An exchange of promises meets the …

You Haven't Come A Long Way, Baby: The Courts' Inability To Eliminate The Gender Gap Fifty-Two Years After The Passage Of The Equal Pay Act, Morgan A. Tufarolo

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Role Of Courts In Assisting Individuals In Realizing Their S. 2(B) Right To Information About Court Proceedings, Graham Reynolds

All Faculty Publications

In this paper, I argue that Canadian courts ought to take all reasonable steps to assist individuals in fully realizing their s. 2(b) right to information about court proceedings, both by providing individuals with online access to information about court proceedings (directly and by partnering with third parties), and by implementing policies on the use of electronic devices in courts that minimize restrictions on the ability of individuals and news media to disseminate information about court proceedings to the public. This paper will proceed as follows. I will begin by establishing that individuals are entitled, under s. 2(b) of the …

The Danger Zone: How The Dangerousness Standard In Civil Commitment Proceedings Harms People With Serious Mental Illness, Sara Gordon

Scholarly Works

Almost every American state allows civil commitment upon a finding that a person, as a result of mental illness, is gravely disabled and unable to meet their basic needs for food and shelter. Yet in spite of these statutes, most psychiatrists and courts will not commit an individual until they are found to pose a danger to themselves or others. All people have certain rights to be free from unwanted medical treatment, but for people with serious mental illness, those civil liberties are an abstraction, safeguarded for them by a system that is not otherwise ensuring access to shelter and …

Judicial Lobbying, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Abstract: Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done-not to mention little that could be done-to restrict judges from lobbying. Judicial lobbying occurs, in large part, when …

Antitrust In Zero-Price Markets: Applications, John M. Newman

Articles

"Free" products have exploded in popularity along with widespread Internet adoption-but many of them are not truly free. Customers often trade their attention or personal information to access zero-price products. This exchange dynamic brings zero-price markets within the scope of antitrust law. But despite the critical role that such markets now play in modern economies, the antitrust enterprise has largely failed to account for their unique attributes.

In response, this Article undertakes two primary tasks. The first is to address particular areas of current antitrust doctrine that require revision or reinterpretation in the face of zero prices. Topics addressed include …

Chevron Bias, Philip A. Hamburger

Faculty Scholarship

This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges – questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked …

Constitutional Amendment, Madhav Khosla

Faculty Scholarship

This chapter examines the formal method for constitutional amendment provided for in Article 368 of the Indian Constitution. It first reviews the early cases that gave rise to the Basic Structure doctrine, which placed substantive restrictions upon the power of amendment, before exploring subsequent developments and the application of the doctrine. It considers how Indian courts have addressed the idea of an unconstitutional constitutional amendment, with particular emphasis on the architectural framework that the courts have envisioned the Constitution to have. It explains how the Basic Structure doctrine has been used to understand the principles on which constitutionalism must depend.

Soes And State Governance: How State-Owned Enterprises Influence China's Legal System, Zheng Lei, Benjamin L. Liebman, Curtis J. Milhaupt

Faculty Scholarship

Most of the existing literature on Chinese SOEs asks how state ownership affects their governance. This chapter turns the question on its head: How do SOEs affect state governance in China? The chapter begins by distinguishing different modes of interaction between the Party-state and SOEs. Focusing on these modes of interaction, the chapter analyzes how SOEs have influenced China’s legal system. This chapter discusses the ideological and positional advantages enjoyed by SOEs in their legal treatment, and provide an analysis of SOEs’ impact on legislation, administrative rulemaking and in particular, the courts. It concludes by exploring a key implication of …

Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus

Michigan Journal of Gender & Law

LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, …

Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Hashavim H.P.S. Business Information, Ltd. V. The Courts' Administration, Elyakim Rubinstein, Esther Hayut, Uzi Vogelman

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This case concerned a petition challenging the decision of the Courts Administration (the Respondent) making access to its judgment database contingent upon signing a “guarantee” that comprised, inter alia, a prohibition upon indexing the information in a manner that would allow it to be found through web search engines such as Google and Bing. The Petitioner is a commercial company whose primary activity is …

Identifying Pathways To And Experiences Of Street Involvementthrough Case Law, Suzanne Bouclin

Dalhousie Law Journal

This research explores what can be learned about the experiences of streetinvolved people by reading cases that deal with people characterized on the record as "homeless." The author builds on existing empirical research by reading a large body of cases to discuss pathways to and experiences of street involvement. She proceeds to more closely explore cases regarding people (1) who are identified in the cases as homeless, and (2) find themselves before the courts for having engaged in income generating activities. The author argues that cases constitute knowledge about street involvement in ways that may take us beyond what we …

Law Library Blog (October 2015): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

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. …

Planned Parenthood: Adult Adoption And The Right Of Adoptees To Inherit, Richard C. Ausness

ACTEC Law Journal

This Article is concerned with the effect of adult adoptions on the inheritance rights (in the broad sense of that term) of adult adoptees. The Article contends many adult adoption statutes assume the existence of a parent-child relationship in which the adopter is the "parent" and the adoptee is a "child" even though this is not true of all adult adoption cases. In addition, legislatures and courts frequently fail to differentiate between "quasi-familial" adoptions and "strategic" adoptions, particularly where inheritance rights are concerned.

Newsroom: Judge Edward Clifton Joins Faculty, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Coroner's Inquests In South Carolina: A Unique, Impartial, And Public Opportunity To Seek Justice, Marshall Crane

South Carolina Law Review

No abstract provided.

Do Judicially Created Grounds For Vacating Arbitral Awards Still Exist?: Why Manifest Disregard Of The Law And Public Policy Exceptions Should Be Considered Under Vacatur, Ashley K. Sundquist

Journal of Dispute Resolution

The Court’s strong language in Hall Street indicated the Court’s intent for the FAA to provide the exclusive grounds for vacating an arbitral award. Therefore, once the Court addresses the circuit split, it will likely hold that judicially created grounds are not an acceptable form of vacatur. However, doing so would cause individuals injustice, in particular where awards manifestly disregard the law and go against public policy. This Note argues that if the Court abolishes judicially created grounds, it should reinterpret the FAA to include manifest disregard of the law and violations to public policy under the exceeded powers exception …

Stop Making Court A First Stop For Many Low Income Parents, Jane C. Murphy

All Faculty Scholarship

In the wake of the unrest over police misconduct in cities across the country, calls for reform have focused on the criminal justice system — making police, prosecutors, and criminal courts more accountable and just. While much work needs to be done in that arena, too little attention has focused on the ways in which low income families are hurt in civil courts. Many more men, women and children from low income communities of color pass through the doors of our family courts every day than those who interact with the criminal justice system. Some come to court as a …

Newsroom: Logan On Judicial Diversity, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol

UF Law Faculty Publications

This essay examines Herbert Hovenkamp's influence in antitrust law and policy in the courts. This essay focuses its attention primarily with the Treatise and primarily in the area of merger law – procedural with issues of antitrust injury and substantively with merger efficiencies. The essay provides a case count citation analysis of Hovenkamp's scholarship and compares Hovenkamp to other major figures in antitrust scholarship (Bork and Posner) and to the other antitrust treatises (Kintner and Sullivan) in the courts. Our meta-level findings show that Hovenkamp is far more cited than other treatise writers or scholars who have been recognized for …

Reverse Nullification And Executive Discretion, Michael T. Morley

Scholarly Publications

The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.

Such a broad application of obstacle and field preemption is …

Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul

Political Science Honors Projects

The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.

The Roberts Court And Penumbral Federalism, Edward Cantu

Catholic University Law Review

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts—which derive from a “penumbral” reading of the Tenth Amendment—represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and its …

Baker, Walter Arnold, 1937-2010 (Mss 539), Manuscripts & Folklife Archives

Manuscript Collection Finding Aids

Finding aid only for Manuscripts Collection 539. This small collection contains material related to legislative matters of interest to Kentucky legislator and jurist Walter A. Baker, Glasgow, Kentucky. Also includes files about several trips abroad and family material.

Resurrecting Trial By Statistics, Jay Tidmarsh

Journal Articles

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …

"All Writs" In Bankruptcy And District Courts: A Story Of Differing Scope, George Kuney

Scholarly Works

No abstract provided.