Law Commons^™

The Virginia Judicial System: Organization And Structure, W. Clark Williams Jr.

Law Faculty Publications

No abstract provided.

The Challenge Of Comparative Civil Procedure, Scott Dodson

Faculty Publications

This Essay reviews Civil Litigation in Comparative Context (West 2007), by Oscar G. Chase, Helen Hershkoff, Linda Silberman, Yasuhei Taniguchi, Vincenzo Varano, and Adrian Zuckerman. It also identifies some areas of exceptionalist American civil procedure that recently have been converging towards global norms and argues that those convergences, if they continue, could render comparative studies particularly meaningful.

The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod

Faculty Articles

Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.

The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which …

An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

Commentators have theorized that several factors may improve the process, and thus perhaps the accuracy, of appellate review: (1) review by a panel of judges, (2) subject-matter expertise in the area of the appeal, (3) other law-finding ability, (4) adherence to traditional notions of appellate hierarchy, and (5) the judicial independence of appellate judges. The considerable discussion that has expounded upon these theories has occurred in a vacuum of abstract generalization. This Paper adds a new dimension by presenting results from an empirical study of bankruptcy appellate opinions issued over a three-year period. The federal bankruptcy appellate structure provides certain …

Guilty Pleas Or Trials: Which Does The Barrister Prefer?, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favor guilty pleas, it is not accurate with respect to barristers in England. This is because the latter’s selfish incentives--to maximize income and avoid sanction--incline them to prefer trials over guilty pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, …

Supreme Court Reversals: Exploring The Seventh Court, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Assumptions Behind The Assumptions In The War On Terror: Risk Assessment As An Example Of Foundational Disagreement In Counterterrorism Policy, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, …

Inside The Box - When Exercising Peremptory Challenges, Attorneys Should Keep In Mind The Three-Step Framework Of Batson/Wheeler, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Hybrid Class Actions, Dual Certification, And Wage Law Enforcement In The Federal Courts, Andrew Brunsden

Articles & Chapters

Hybrid wage-and-hour class actions, which combine a Fair Labor Standards Act ("FLSA ') opt-in collective action and a Federal Rule of Civil Procedure Rule 23 opt-out class action in a single civil action, demonstrate the unusual interplay of opt-in and opt-out rules. The hybrid class action, and its viability as a mechanism for wage law enforcement, raises fundamental questions as to who participates in lawsuits, how we should hold employers accountable for wage-and-hour noncompliance, and the role of the federal courts in enforcing public rights. An opt-in rule tends to produce low participation rates, while an opt-out rule tends to …

Changing The Narrative: Convincing Courts To Distinguish Between Misbehavior And Criminal Conduct In School Referral Cases, Marsha L. Levick, Robert G. Schwartz

University of the District of Columbia Law Review

No abstract provided.

Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps

All Faculty Scholarship

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North …

The Price Of Misdemeanor Representation, Erica J. Hashimoto

Scholarly Works

Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forth years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level …

Reinventing Appellate Jurisdiction, Adam N. Steinman

Faculty Scholarship

Appellate jurisdiction in the federal system has been properly criticized for both its doctrinal incoherence and its procedural complexity. Although these critiques are well-founded, this Article reveals that, as applied in practice, federal courts have drawn sensible lines between interlocutory orders that are immediately appealable and those that are not. A limited category of interlocutory orders, primarily those rejecting immunities from suit, are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review. The doctrinal morass of the present framework, however, has obscured this basically sensible structure and has led to inefficient procedures for …

Xenophilia Or Xenophobia In American Courts? Before And After 9/11, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners' aversion to U.S. forums can elevate the foreigners' success rates, when measured as a percentage of …

Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

22 slides

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

Slides: What's In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: James R. Rasband, J. Reuben Clark Law School, Brigham Young University

23 slides

What’S In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

14 pages.

Includes bibliographical references

"James R. Rasband, Associate Dean of Research & Academic Affairs and Professor of Law, J. Reuben Clark Law School, Brigham Young University"

Do Judges Systematically Favor The Interests Of The Legal Profession? , Benjamin H. Barton

College of Law Faculty Scholarship

This Article answers this question with the following jurisprudential hypothesis: many legal outcomes can be explained, and future cases predicted, by asking a very simple question, is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment …

Do Judges Systematically Favor The Interests Of The Legal Profession? , Benjamin H. Barton

College of Law Faculty Scholarship

This Article answers this question with the following jurisprudential hypothesis: many legal outcomes can be explained, and future cases predicted, by asking a very simple question, is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment …

Rhode Island Family Court And The Best Interests Of Children, Alexandra Arnold

Senior Honors Projects

With the continuous rise of the divorce rate in America, there is also an increase in the number of children and adolescents who must suffer through the divorce along with their parents. For some, the divorce is a relief and can be a positive change in their lives. For others, it is difficult and devastating, filled with conflict and tension. Whatever the circumstances, there are permanent effects that children experience as a result of their parents’ divorce. These effects of divorce on children are becoming better known as generations of children grow up in a single parent home. The court …

Judging Judges And Dispute Resolution Processes, John M. Lande

Faculty Publications

This article critiques Professor Chris Guthrie's lead symposium article entitled, "Misjudging." Guthrie's article makes two major arguments. The first is a descriptive, empirical argument that judges are prone to error because of three types of "blinders" and that people underestimate the amount of such judicial error. The second argument is prescriptive, recommending that, because of these judicial blinders, disputants should consider using non-judicial dispute resolution processes generally, and particularly facilitative mediation and arbitration.This article critiques both arguments. It notes that, although Guthrie presents evidence that judges do make the kinds of errors that he describes, his article does not address …

Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley

Dalhousie Law Journal

As Professor James Feehan and archivist-historian Melvin Baker describe the circumstances in which the fateful renewal provision of the 1969 Churchill Falls hydro contract was negotiated, they suggest that the legal doctrines of conflict of interest or economic duress might offer a basis upon which the contract, or perhaps the renewal provision, could be impugned. In addition to interesting historical insights, their analysis offers the intriguing possibility that the government of Newfoundland may yet succeed in its long-standing battle to rid itself of its obligations under the grossly disadvantageous Churchill Falls contract.

The Right Of Access To Justice: Judicial Discourse In Singapore And Malaysia, Gary Chan

Research Collection Yong Pung How School Of Law

This is an essay on judicial discourse in Singapore and Malaysia pertaining to the nature and scope of the right of access to justice, including access to justice for the poor. We will examine the statements and pronouncements by the Singapore and Malaysia judiciary in case precedents and extra-judicial statements. Some of the issues explored include the legal status of this right of access to justice (namely, whether it is a right enshrined in the constitution or merely a right derived from the common law and whether it is qualified by economic and other interests) and the associated rights of …

Promissory Estoppel, Proprietary Estoppel And Constructive Trust In Canada: "What's In A Name?", Jane Matthews Glenn

Dalhousie Law Journal

This paper explores the similarities and differences between promissory estoppel, proprietary estoppel and the remedial constructive trust. Although the three are quite different at one level, as the first is a defence to an action, the second a cause of action as well as a defence, and the third simply a remedy to a cause of action, a closer examination reveals certain underlying similarities. The comparison highlights proprietary estoppel, an oft-overlooked concept in Canada, but which is comparable to promissory estoppel at the substantive level and the constructive trust at the remedial level.

Habermas, Legal Legitimacy, And Creative Cost Awards In Recent Canadian Jurisprudence, Michael Fenrick

Dalhousie Law Journal

Access to justice continues to be a live issue in Canadian courtrooms. While state-sponsored initiatives that promote access continue to flounder in Canada or in some cases, are cancelled altogether, the pressure is mounting to find creative solutions that facilitate greater participation in formal dispute resolution processes. The price of failing in this regard is very high. To truly flourish, both social cohesion and individual liberties require a more participatory and inclusive legal system than the one that currently precludes all but the wealthiest from accessing our courts. Drawing on the legal philosophy of Jargen Habermas, the author examines access …

The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker

Dalhousie Law Journal

The 1969 Churchill Falls contract between Hydro-Quebec and the Churchill Falls Labrador Corporation has been the subject of political controversy. It has also been challenged in the courts, with appeals reaching to the Supreme Court of Canada. Yet, despite the scrutiny of those court cases, the political rhetoric, and the literature that has been spawned by this matter, an extraordinary element of that contract remains remarkably obscure. It is the contract's renewal clause. At the expiry of the contract's forty-four-year term in 2016, that clause requires an automatic renewal for twenty-five additional years at a fixed nominal price that is …

Complete Preemption And The Separation Of Powers, Trevor W. Morrison

Cornell Law Faculty Publications

This is a short response, published in Pennumbra (the online companion to the University of Pennsylvania Law Review), to Gil Seinfeld's recent article, "The Puzzle of Complete Preemption."

I first sound some notes of agreement with Professor Seinfeld's critique of the Supreme Court's complete preemption doctrine. I then turn to his proposed reshaping of the doctrine around the interest in federal legal uniformity. Although certainly more satisfying than the Court's account, Professor Seinfeld's refashioning of the doctrine raises a number of new difficulties. In particular, it invites the federal courts to engage in a range of line-drawing exercises to which …

Below The Surface: Comparing Legislative History Usage By The House Of Lords And The Supreme Court, James J. Brudney

ExpressO

Abstract for “Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court

In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain’s highest court has used …

'Prima Paint' Pushed Compulsory Aribitration Under The 'Erie' Train, Richard L. Barnes

ExpressO

As the face of commerce changes, the law usually follows, albeit at some distance. The United States Supreme Court has recently sped the pace. In a line of cases, some old, some recent, but all feeding off of one another, the Court has held that challenges to agreements which contain arbitration provisions must go to the arbitrator first. Courts may hear formational challenges only where they challenge the arbitration provision alone. In the Supreme Court, arbitration, with its vast potential for abuse as well as for good, has found a friend.

The Court’s doctrine of choice, “severability,” raises serious concerns …