Law Commons^™

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel J. Turnbull

Emanwel J Turnbull

American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.” This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation. …

Boardroom Diversity: Why It Matters, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for an organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? How might women and people of color best cultivate the skills necessary …

Rules Are Made To Be … Re-Examined: An Alternative Approach To The Rules Enabling Act And Its Subsequent Effect On Federal Rule 15(C), Francis R. Brossette

Francis R Brossette

Congress has the authority to make procedural rules for federal courts but delegated that authority to the Supreme Court by enacting the Rules Enabling Act (REA). The REA authorizes the Supreme Court to promulgate rules for providing a uniform system of practice and procedure for federal courts. Throughout the Court’s complicated history with the REA, an issue of interpretation has arisen. The REA’s second sentence prohibits rules that would affect substantive rights. And so the question that must be answered is this: When does a rule affect substantive rights? This Comment purports to answer that question.

Before 1938, the Court …

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of efficiency of judicial proceedings and fairness to nonresidents than the immunity from service of process doctrine. The article proposes that the immunity from service of …

Evaluating Contracts For Customized Litigation By The Norms Underlying Civil Procedure, Colter Paulson

Colter Paulson

Recent scholarship on the potential for contractual modifications of litigation procedure focuses on contractual theories of enforcement, with constraints supplied by public policy. But this approach ignores the fact that such contracts purport to bind a third-party, the court, that did not agree to change its procedures. Nor can contractual theories of enforcement fully account for the societal and institutional interests in existing procedures. These problems are resolved, however, when contractual procedures are seen primarily as procedures, rather than as contracts, and are evaluated in light of the norms underlying civil procedure.

These norms are found both in the explicit …

A Decade Of Progress: Promising Models For Children In The Turkish Juvenile Justice System, Brenda Mckinney, Lauren Salins

Brenda A McKinney

In the past decade, Turkey has improved its approach to dealing with children in conflict with the law and moved the country closer to a system that ensures all children have the chance they deserve to strive for a better future. This paper focuses on two promising reforms that have been instituted in Turkey and that have the potential for improving juvenile justice systems in the rest of the world. They are: 1) open model incarceration and 2) diversion. While this paper also addresses challenges inherent in these models and discusses broader issues in the Turkish juvenile justice system that …

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

Death to Immunity From Service of Process Doctrine!

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of …

Changing The Paradigm Of International Criminal Law: Considering The Work Of The United Nations War Crimes Commission Of 1943-1948, Daniel T. Plesch, Shanti Sattler

Daniel T Plesch

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943-1948 by Dr Dan Plesch and Shanti Sattler This article discusses the precedents of the largely forgotten United Nations War Crimes Commission (U.N.W.C.C.) of 1943-1948. The work of this multinational body should be regarded as a source of customary international law. We seek to introduce the U.N.W.C.C. and the thousands of national trials it supported into modern discourse about the development of international criminal justice and argue why they are relevant to current deliberations. The article concludes that the U.N.W.C.C. has been …

Vanishing Point: Alzheimer's Disease And Its Challenges To The Federal Rules Of Evidence, Ann Murphy

Ann Murphy

ABSTRACT Vanishing Point: Alzheimer’s Disease and Its Challenges to the Federal Rules of Evidence As of 2012, an estimated 5.4 million Americans suffer from Alzheimer’s disease (AD). By the year 2030, due to the overall aging of our population, the number of individuals with AD is expected to increase dramatically. Courts will consequently confront evidentiary issues involving parties, defendants, witnesses, and victims who are suffering from various stages of the disease. Testimony of course involves descriptions of events that happened in the past and thus frequently involves memory. This article explores three specific areas of evidence that will be affected …

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

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 …

Notification And Risk Management For Victims Of Domestic Violence, Jaime K. Dahlstedt

Jaime K. Dahlstedt

Technological advances have made possible the real-time enforcement of temporary and contested protection orders issued on behalf of victims of domestic abuse, particularly through global positioning satellite (GPS) monitoring of individuals who have been found to have committed domestic violence offenses and against whom stay away orders have been entered. Notwithstanding this capability, however, courts rarely impose GPS monitoring requirements alongside the safety provisions routinely imposed in domestic abuse cases.

This Article examines and critiques this prevailing practice. This Article argues that the procedural, substantive and logistical objections to GPS monitoring do not sufficiently justify the systemic failure to impose …

Employee And Inventor Witnesses In Patent Trials: The Blurry Line Between Expert And Lay Testimony, Alex Reese

Alex Reese

Parties in patent lawsuits that are going to trial face a crucial choice: who is the best witness to explain the often complex or scientific technology behind an invention or an accused product? Often, the parties will select an employee witness such as an engineer, scientist, or a named inventor of the patent-in-suit to offer this key testimony rather than a hired expert. Many litigants have found that there are benefits to choosing an employee witness who can testify based on first-hand experience with the technology in question rather than a hired expert, who must prepare an expert report and …

Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim

Catherine Y Kim

Since Brown v. Board of Education, the federal courts have played an expansive role in institutional reform litigation to restructure state and local government institutions such as public school systems, prisons, law enforcement agencies, and health care facilities accused of violating individual rights. The 2009 decision in Horne v. Flores, in which a five-four majority of the Supreme Court employed a novel interpretation of the Federal Rules of Civil Procedure to substantially enlarge government-defendants’ ability to terminate ongoing judicial oversight in these types of cases, threatens the future viability of this model of social reform. The propriety of institutional reform …

Hydropower: It's A Small World After All, Gina Warren

Gina Warren

Global warming is here. As exhibited by the recent droughts, heat waves, severe storms and floods, climate change is no longer a question for the future, but a problem for the present. Of the many ways to help combat climate change, this article discusses the use of the most abundant renewable energy source on the plant – water. While large-scale hydropower (think Hoover Dam) is unlikely to see increased development due to its negative impact on the environment, fish, and wildlife, small-scale hydropower (think a highly technologically-advanced water mill) is environmentally-friendly and would produce clean, renewable energy to benefit local …

Lessons From Positive Psychology For Developing Advocacy Skills, Nancy Schultz

Nancy Schultz

Advocacy skills are crucial to law students and lawyers. One of the ways law students develop those skills is in the context of lawyering skills competitions. This article explores whether there is any psychological research that might offer more systematic guidance for advocacy coaches and instructors. Positive psychology does offer some principles that suggest useful approaches to coaching and teaching advocacy. Taken together with instinct and experience, these principles can help coaches and advocacy instructors be more effective in training young lawyers for litigation and dispute resolution practice.

Civil Rule 54(B); Seventy-Five And Ready For Retirement, Andrew S. Pollis

Andrew S Pollis

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first to describe them comprehensively, analyze their root causes, and offer a workable alternative. When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by finding “no just reason for delay.” The rule was designed to ease the hardship on litigants who would otherwise have to await …

What Do Kim Kardashian And Lance Armstrong Have In Common?: Celebrity Complaints In The Classroom, Amy K. Langenfeld

Amy K Langenfeld

Every day brings a report of a celebrity suing or being sued. The complaints initiating these suits are available online within hours. Regardless of the merits or outcomes of these complaints by or against celebrities, celebrity complaints are a rich source of samples for the law school classroom. As supplements to course materials in civil procedure or legal writing, celebrity complaints are likely to generate discussion for several reasons. First, they show a range of strategies and persuasive writing techniques. Second, they engage students because they are real world documents, and because they have a pop culture setting. Third, they …

Adr’S Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

A. Benjamin Spencer

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

The Word Commons And Foreign Laws, Thomas O. Main

Thomas O Main

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

Legal Applications Of Modern Finance, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

While scholars and practitioners have applied economics to law successfully for decades, there has been almost no similar application of modern finance. Courts have used the central concept of classical finance, time value of money, for many years, but their use is still unsophisticated.

This article details two ways to apply modern finance to law. This article first describes a method of improving courts’ time value of money calculations, by using a systematically complete four factor analysis to determine the appropriate discount rate. This article then describes a method of calculating future damages that uses market price of risk, based …

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 …

Like A Glass Slipper On Step-Sister, How The One-Ring Rules Them All At Trial, Cathren Page

Cathren Page

The literary concept of an endowed object can weave a thread of narrative continuity throughout a trial and resonates in the mind of the judge or juror. In literature, an endowed object is a material object that reverberates with symbolic significance throughout the story. The object can develop the theme, character, and emotions. Examples include Cinderella’s glass slipper, the one-ring, the handkerchief in Othello, and the mocking jay pin from The Hunger Games. Endowed objects have been persuasive symbols in famous trials as well. Endowed objects include the glove in the O.J. Simpson murder trial and John Wilkes Booth’s boot …

The Rise And Fall Of Crossmann: The South Carolina Supreme Court's Double Take On Whether A Cgl Insurance Policy Covers Progressive Property Damage Resulting From Faulty Workmanship, John C. Bruton

South Carolina Law Review

No abstract provided.

Class Actions Under Cafa And Parens Patriae Actions: West Virginia Ex Rel. Mcgraw V. Cvs Pharmacy, Inc., Marshall P. Walker

South Carolina Law Review

No abstract provided.

An Inconvenient Forum: Altering The Doctrine Of Forum Non Conveniens For Human Rights Claims Under The Alien Tort Statute, Lynn Ta

Lynn Ta

This Article proposes a new approach to the doctrine of forum non conveniens. Traditionally, forum non conveniens has been considered a non-merits decision that does not require a prior determination of subject matter jurisdiction. This Article argues that this approach significantly disadvantages foreign plaintiffs who bring human rights claims under the Alien Tort Statute because it quickly and automatically dismisses such cases without considering either the U.S. interest in adjudicating human rights cases or the gravity of human rights violations. Both these considerations should trump the more mechanical analysis conducted under the traditional forum non conveniens model. The central thesis …