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Articles 211 - 240 of 518
Full-Text Articles in Courts
The Ubiquity Of Greed: A Contextual Model For Analysis Of Scienter, Ann Morales Olazabal, Patricia S. Abril
The Ubiquity Of Greed: A Contextual Model For Analysis Of Scienter, Ann Morales Olazabal, Patricia S. Abril
Articles
Some securities fraud plaintiffs contend that greed-in the form of perpetuating a prestigious executive position, ensuring a gainful bonus, or maintaining the appearance of corporate profitability-is a bona fide motive evidencing scienter. But currently, no single judicial standard or analytical rubric guides the analysis of whether allegations of greed indicate scienter in these cases. The Private Securities Litigation Reform Act of 1995 (PSLRA) requires that the complaint state "with particularity" facts giving rise to a "strong inference" that the defendant acted with the scienter required for the cause of action. Plaintiffs have long established scienter through "motive and opportunity" pleading: …
Hon. Larry M. Boyle Retires As Chief Magistrate Judge For The United States District Court For The District Of Idaho, Katie Ball
Articles
No abstract provided.
Competent Capital Representation: The Necessity Of Knowing And Heeding What Jurors Tell Us About Mitigation, John H. Blume, Sheri Lynn Johnson, Scott E. Sundby
Competent Capital Representation: The Necessity Of Knowing And Heeding What Jurors Tell Us About Mitigation, John H. Blume, Sheri Lynn Johnson, Scott E. Sundby
Articles
No abstract provided.
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Articles
If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?
The Proper Tax Treatment Of The Transfer Of A Compensatory Partnership Interest, Douglas A. Kahn
The Proper Tax Treatment Of The Transfer Of A Compensatory Partnership Interest, Douglas A. Kahn
Articles
If a person receives property as payment for services, whether for past or future services, the receipt typically constitutes gross income to the recipient. If a person performs services for a partnership or agrees to perform future services, and if the person receives a partnership interest as compensation for the past or future services, one might expect that receipt to cause the new partner to recognize gross income in an amount equal to the fair market value of the partnership interest. After all, if a corporation compensated someone for services rendered or to be rendered by transferring the corporation's own …
Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien
Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien
Articles
In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases …
Pharma's Nonobvious Problem, Rebecca S. Eisenberg
Pharma's Nonobvious Problem, Rebecca S. Eisenberg
Articles
This Article considers the effect of the recent decision of the U.S. Supreme Court in KSR International Co. v. Teleflex, Inc. on the nonobviousness standard for patentability as applied to pharmaceutical patents. By calling for an expansive and flexible analysis and disapproving of the use of rigid formulas in evaluating an invention for obviousness, KSR may appear to make it easier for generic competitors to challenge the validity of drug patents. But an examination of the Federal Circuit's nonobviousness jurisprudence in the context of such challenges reveals that the Federal Circuit has been employing all along the sort of flexible …
Craft And Power, Carl E. Schneider
Craft And Power, Carl E. Schneider
Articles
Oliver Wendell Holmes-a great judge-said that "the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees." Appellate courts command that force in ways that principle and practicalities leave little fettered. Judges must fetter themselves, not least by honoring the judicial duty of craftsmanship. That duty obliges courts to respect procedural rules, for they keep courts within their bounds and promote fair and sound decisions. That duty obliges courts to analyze legal authority scrupulously, since judicial legitimacy …
Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar
Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar
Articles
In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority-all of whom still sit on the Court-might overrule Glucksberg. For various reasons, …
Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman
Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman
Articles
Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?
Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran
Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran
Articles
I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision …
A Full And Fair Hearing: The Role Of The Alj In Assisting The Pro Se Litigant, Paris R. Baldacci
A Full And Fair Hearing: The Role Of The Alj In Assisting The Pro Se Litigant, Paris R. Baldacci
Articles
No abstract provided.
The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles C. Jalloh
The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles C. Jalloh
Articles
No abstract provided.
The Wait Is Over: Chevron As The Stealth Vermont Yankee Ii, Paul R. Verkuil
The Wait Is Over: Chevron As The Stealth Vermont Yankee Ii, Paul R. Verkuil
Articles
The article argues that the Chevron doctrine has effectively served as a means to moderate the hard-look review of agency rulemaking, rendering the anticipated Vermont Yankee II case unnecessary. It posits that Chevron's deference to agency interpretations of statutes has softened the impact of State Farm's stringent arbitrary-and-capricious review standard, aligning more closely with the judicial restraint envisioned by Vermont Yankee.
The Internationalization Of Lay Legal Decision-Making: Jury Resurgence And Jury Research, Richard O. Lempert
The Internationalization Of Lay Legal Decision-Making: Jury Resurgence And Jury Research, Richard O. Lempert
Articles
When I first began to study the jury more than thirty years ago, the topic of this Journal issue, jury systems around the world, was unthinkable. The use of juries, especially in civil litigation, had long been in decline, to the point of near extinction in England, the land of their birth, and the live question was whether the jury system would endure in the United States. It seemed clear that juries would not continue in their classic form, as many U.S. states, with the Supreme Court's eventual approval, mandated juries of less than twelve people and allowed verdicts to …
A Cancer On The Republic: The Assault Upon Impartiality Of State Courts And The Challenge To Judicial Selection, Donald L. Burnett Jr.
A Cancer On The Republic: The Assault Upon Impartiality Of State Courts And The Challenge To Judicial Selection, Donald L. Burnett Jr.
Articles
No abstract provided.
The Puzzle Of Complete Preemption, Gil Seinfeld
The Puzzle Of Complete Preemption, Gil Seinfeld
Articles
Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the …
Reviving The Right To Vote, Ellen D. Katz
Reviving The Right To Vote, Ellen D. Katz
Articles
Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …
The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog
The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog
Articles
A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …
A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan
A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan
Articles
In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …
Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus
Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus
Articles
This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …
Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas
Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas
Articles
THE COURT: I don't think I have time to listen .... I am not going to reexamine your guilt or innocence here. That is not the purpose of a sentence.. THE DEFENDANT: I did not have the chance to tell you .... THE DEFENDANT: But, your Honor, listen to me-1 Should the court hear this defendant? Is the story of innocence relevant at allocution-the defendant's opportunity to speak on his or her own behalf at the sentencing hearing prior to the imposition of sentence? Or, is the purpose of allocution something different, as the judge suggests? The answers depend on …
The Supreme Court And The Federal Circuit: Visitation And Custody Of Patent Law, Rebecca S. Eisenberg
The Supreme Court And The Federal Circuit: Visitation And Custody Of Patent Law, Rebecca S. Eisenberg
Articles
The U.S. Supreme Court’s relationship to patent law sometimes seems like that of a non-custodial parent who spends an occasional weekend with the kids. The custodial parent is, of course, the U.S. Court of Appeals for the Federal Circuit. The Federal Courts Improvement Act of 1982 consolidated intermediate appellate jurisdiction over patent law cases in this single court, which hears appeals from the U.S. Patent and Trademark Office (“PTO”), the U.S. District Courts, the U.S. Court of Federal Claims, and the U.S. In-ternational Trade Commission. Day to day it is the Federal Circuit that reviews contested decisions of the institutions …
Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman
Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman
Articles
So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …
Crawford, Davis, And Way Beyond, Richard D. Friedman
Crawford, Davis, And Way Beyond, Richard D. Friedman
Articles
Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.
Crawford And Davis: A Personal Reflection, Richard D. Friedman
Crawford And Davis: A Personal Reflection, Richard D. Friedman
Articles
I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.
Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts
Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts
Articles
This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …
Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah
Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah
Articles
In October 2005, a group of distinguished tax experts from the European Union and the United States, who had never met before, convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The purpose of the conference was to shed comparative light on the very different approaches taken by the European Court of Justice (ECJ) and the U.S. Supreme Court to the question of fiscal federalism. The conference was sponsored by the U-M Law School, U-M's European Union Center, and Harvard Law School's …
What We Know, And What We Should Know About American Trial Trends, Margo Schlanger
What We Know, And What We Should Know About American Trial Trends, Margo Schlanger
Articles
More than a few people noticed that the American court system was seeing ever fewer trials before Marc Galanter named the phenomenon.' But until Galanter mobilized lawyers2 and scholars to look systematically at the issue, inquiry was both piecemeal and sparse. Over the past three years, in contrast, Galanter's research 3 and his idea entrepreneurship, crystallized in the "Vanishing Trial" label, has spawned if not a huge literature at least a substantial one. We have now gotten the benefit of sustained scholarly inquiry by researchers of many stripes. Their work has been largely, though not entirely, empirical, and so we …
Using Court Records For Research, Teaching, And Policymaking: The Civil Rights Litigation Clearinghouse, Margo Schlanger, Denise Lieberman
Using Court Records For Research, Teaching, And Policymaking: The Civil Rights Litigation Clearinghouse, Margo Schlanger, Denise Lieberman
Articles
The National Archives and Records Administration (NARA) is, wisely, planning the future of its enormous collection of relatively recent court records. The pertinent regulation, a “records disposition schedule” first issued in 1995 by the Judicial Conference of the United States in consultation with NARA, commits the Archives to keeping, permanently, all case files dated 1969 or earlier; all case files dated 1970 or later in which a trial was held, and “any civil case file which NARA has determined in consultation with court officials to have historical value.” Other files may be destroyed 20 years after they enter the federal …