Courts Commons^™

Civil Rico: An Effective Deterrent To Fraudulent Asbestos Litigation?, Lester Brickman

Cardozo Law Review

In January 2014, U.S. Bankruptcy Judge George Hodges, presiding over the asbestos-related bankruptcy of Garlock Sealing Technologies, LLC, a manufacturer of gaskets containing asbestos, issued an order estimating Garlock's liability for pending and future mesothelioma cases. Judge Hodges, after hearing evidence discovered by Garlock in a sampling of settled cases, rejected using the usual bankruptcy court recourse to the debtor's historic settlement values as a valid basis for estimating Garlock's total future liability for asbestos-related injuries. He found that Garlock's prior mesothelioma settlements were not a reliable predictor of Garlock's liability because those settlements had been infected by misrepresentations by …

Individualized Sentencing, William W. Berry

Washington and Lee Law Review

In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences. One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.” The Court’s reasoning in both cases centered on the seriousness of the death penalty. Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence. In 2012, the Court expanded this Eighth Amendment concept …

The Federal Courts’ Rulemaking Buffer, Jordan M. Singer

William & Mary Law Review

Procedural rulemaking is often thought of as a second-order task for the federal court system, relevant to the courts’ work but not essential to their function. In reality, rulemaking plays an integral role in the court system’s operation by actively insulating the courts from environmental pressure. This Article explains how power over procedural rulemaking protects the federal courts from environmental uncertainty and describes the court system’s efforts to maintain the effectiveness of the rulemaking buffer in response to historical and contemporary challenges.

Sentencing Persons Convicted Of Minor Offences In Ghana: Reducing Judicial Over-Reliance On Imprisonment, Nenyo Kwasitsu

LLM Theses

This thesis argues that there is overuse of imprisonment for minor offenders in Ghana. These are offenders whose punishments go up to 3 years of jail time, essentially offending mainly for reasons of material poverty. Statutory sentencing provisions have essentially limited judges to impose jail terms. It is argued that one way to decongest Ghana’s prisons is to consider the institutionalization of a regime of community service orders and probation, the administration of which would equip the offenders with income-earning skills while they also reform. Drawing on Kenya, a country that has achieved reasonable success in this reform effort, this …

The Case For Contraceptives: The Legislative History Of The Aca’S Birth Control Mandate, Julia Grant

Venture: The University of Mississippi Undergraduate Research Journal

This paper seeks to outline the legislative and judicial history of the Affordable Care Act’s contraception coverage mandate. It begins by explaining the justifications and specifications of the provision. It then highlights the three phases of litigation that have surrounded the mandate: closely held, for-profit companies; religious nonprofit organizations; and state attorney generals. This paper provides context for the litigation by describing the opposing stances towards the mandate of the Obama and Trump Administrations and the different modifications to the provision made under each administration. In the wake of last week’s finalization of the controversial rules the Trump Administration issued, …

Military Rules: Expert Qualifications, Admissibility Of Expert Testimony, And Competency Hearings, Joshua E. Kastenberg

Faculty Book Display Case

This book provides a comprehensive review of the many valuable roles that psychologists can play in courts-martial and how they can collaborate with military attorneys to make effective trial teams.

Even though psychologists are becoming increasingly important in military trials, many are unfamiliar with the unique nature of this system. Likewise, lawyers often do not know how to effectively utilize psychologists' expertise.

This volume thus offers much-needed guidance for civilian psychologists and military counsel alike.

The chapter authors are forensic psychologists and military legal personnel — including defense attorneys, prosecutors, and judges — who offer expert tips and strategies for …

Unintentional Irony In Landmark Decisions Of The Delaware Supreme Court Regarding Corporate Law, Steven J. Cleveland

Michigan Business & Entrepreneurial Law Review

Three landmark decisions of the Delaware Supreme Court exhibit unintentional irony: Beam v. Stewart, Smith v. Van Gorkom, and Paramount Communications Inc. v. Time Inc. In Beam, the court concluded that, regarding the decision of whether to seek remedy against Martha Stewart, her fellow directors would not have jeopardized their reputations for the minimal gain of continuing their business and personal relationships with her. Ironically, the court failed to acknowledge that Martha Stewart—in trading on material nonpublic information, which gave rise to the corporate claim against her—jeopardized her reputation (ultimately losing hundreds of millions of dollars and her freedom) for …

The Ever-Changing Scope Of Insider Trading Liability For Tippees In The Second Circuit, Sari Rosenfeld

Michigan Business & Entrepreneurial Law Review

Liability under insider trading law continues to change as federal courts attempt to find new ways to hold insiders liable under the law. As recently as two years ago, the Second Circuit—in analyzing past decisions regarding tipper-tippee insider trading violations—blurred the distinction between legal and illegal insider trading when it fundamentally altered the idea of “personal benefit.” These various decisions provide the basis for antifraud provisions of securities law applying to insider trading, the consequences of which can be detrimental. This Note will discuss the standard that the Second Circuit uses to hold tippees liable for insider trading violations under …

Commencement Calls For Review Of Annual Milestones, Austen L. Parrish

Austen Parrish (2014-2022)

This weekend is a time of celebration in Bloomington, as we welcome friends and family of the Class of 2019 for our annual commencement ceremony. It’s an important milestone in our students’ lives. Commencement is also a time for looking back. The past year saw several significant milestones for the IU Maurer School of Law. I’d like to touch on just a few of them in this month’s column.

Ohio's Targeted Community Alternative To Prison Program: How A Good Idea Is Implemented Through Bad Policy, Samantha Sohl

Cleveland State Law Review

Just because a legislature can make a law doesn’t mean that they should. The Ohio General Assembly enacted the Targeted Community Alternatives to Prison (T-CAP) program to decrease the number of convicted defendants sent to state prison and to increase funding for community control efforts. While the law may be upheld under the Ohio Constitution’s Uniformity Clause, the law should still be repealed because legislative control and financial influence have no place in the judicial branch, specifically the criminal sentencing process. However, the law is rooted in good intentions, and many judges have found the additional funding useful, but the …

Silence Of The Liberals: When Supreme Court Justices Fail To Speak Up For Lgbt Rights, David S. Cohen

University of Richmond Law Review

In 1985, Justice Brennan did something that had never been done before and has, surprisingly, never been done again—penned a separate opinion from the Court’s left vigorously arguing for the protection of gay rights under the Constitution. Since then, even though the Court has repeatedly protected gay rights, none of the Court’s liberal Justices have said a word on the topic. Rather, the liberal Justices have ceded the territory on the issue of the Constitution and gay rights almost entirely to Justice Kennedy’s notoriously flowery but somewhat vacuous statements about the issue, as well as the pointed and often homophobic …

Eliminating Liability For Lack Of Informed Consent To Medical Treatment, Valerie Gutmann Koch

University of Richmond Law Review

The legal doctrine of informed consent, which imposes tort liability for failure to disclose the risks, benefits, and alternatives of a proposed medical intervention, is often criticized for emphasizing ritual over relationships, contributing to the deterioration of the doctor-patient relationship by encouraging the practice of defensive medicine. This article considers a rather radical response to the allegations that the tort of lack of informed consent does not serve the lofty goal of protecting patient self-determination by ensuring that treatment decisions are voluntary and informed, namely the elimination of liability for failure to provide informed consent to medical treatment. In doing …

Transitional Equality, Suzanne A. Kim

University of Richmond Law Review

Legal discussions of inequality often focus on the virtues of one legal status or regulatory structure over another, but a guarantee of the right to a particular legal status does not ensure a lived experience of equality in that status. In moments of legal change, when a person or class of persons obtain a new status or gain rights that had previously been denied to them, the path from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex …

Access Before Evidence And The Price Of The Fda’S New Drug Authorities, Erika Lietzan

University of Richmond Law Review

Sometimes drug innovation seems to happen in reverse. Patients enjoy a treatment for years even though the treatment has not been approved by the FDA or proven safe and effective to the FDA’s standards. (Sometimes this happens because the FDA has declined to take enforcement action.) The agency encourages companies to perform the work necessary to satisfy the United States “gold standard” for new drug approval, however, by promising exclusivity in the marketplace. When a company does this work, at considerable expense, the results are predictable. The new drug is expensive, and patients and payers (and sometimes policymakers) are outraged. …

The “Vanishing Trial”: Arbitrating Wrongful Death, The Hon. Victoria A.B. Willis, Judson R. Peverall

University of Richmond Law Review

Within the past four decades, private arbitration has spread apace across the American legal landscape. The “mass production” of arbitration clauses has pervaded modern business life, relegating a multitude of legal doctrines from the public courthouse into the private realm. The results have been both acute and invidious. Modern judicial preferences for arbitration have given way to enforcement in areas of the formerly unenforceable. Courts are now compelling new classes of claims, previously thought to be beyond the pale of any arbitration agreement.

The latest target in this expedition is the wrongful death action, with courts now shifting wrongful death …

When The Problem Is The Solution: Evaluating The Intersection Between The U Visa “Helpfulness” Requirement And No-Drop Prosecution Policies, Diane Mickelson

University of Richmond Law Review

When Congress introduced the U visa in 2000, it intended to create a program that not only protected immigrant victims of domestic violence from deportation, but also strengthened law enforcement’s ability to investigate crimes and encouraged victims to report the abuse. Traditionally, immigrant victims are particularly vulnerable to domestic violence and have been provided with few options to leave the relationship without risking their immigration status. However, while the U visa provides immigration protections to broad categories of victims, it contains a unique “helpfulness” requirement that compels victims to continually cooperate with law enforcement in order to receive the necessary …

Intellectual Property And Human Rights 2.0, Peter K. Yu

University of Richmond Law Review

Written in celebration of the seventieth anniversary of the Universal Declaration of Human Rights, this article calls for greater methodological engagement to refine existing human rights approaches to intellectual property and to devise new approaches to advance the promotion and protection of human rights in the intellectual property area. This article begins by briefly recapturing the past two decades of scholarship on intellectual property and human rights. It documents the progress scholars have made in this intersectional area. The article then draws on the latest research on human rights methods and methodology to explore whether and how we can take …

Preface, Kurt D. Lockwood

University of Richmond Law Review

We are proud to present the fourth volume of the Online Edition of the University of Richmond Law Review. In the proud tradition of our publication, we have once again sought to publish timely and relevant scholarship.

Curating Campus Speakers, Henry L. Chambers Jr.

University of Richmond Law Review

Curation—the picking and choosing of materials for pedagogical reasons—regularly occurs on college campuses both inside and outside of the classroom. This brief essay explains that curation in two contexts. Part I discusses the curation of courses inside the classroom. Part II discusses the curation of campus speakers outside the classroom. Though applied to different topics, the process of curation is similar in both contexts. Considering both forms of curation can help illuminate and resolve some of the most important issues underlying the debate regarding controversial campus speakers.

The First Amendment And The Great College Yearbook Reckoning, Maryann Grover

University of Richmond Law Review

I advance my argument in three parts. In Part I, I discuss the law as it currently applies to student publications. I begin by briefly addressing the law as it applies to student publications in high schools as a way of demonstrating the lack of clarity in the law as it applies to student publications on college campuses. I then discuss the current state of speech regulation for student publications, including yearbooks, on college campuses. In Part II, I discuss each of the categories of unprotected speech as they are currently interpreted by the Supreme Court, and I demonstrate how …

Acknowledgments, So Ra Ko

University of Richmond Law Review

I present the last book of Volume 53, the last in a series of four print issues the University of Richmond Law Review publishes throughout the academic year. Our publications would not have been possible without those who generously dedicated their time to this organization. As those before me, I take these first few pages of this final book to offer my gratitude to those who have contributed to the successes of the Law Review.

Making The Invisible Visible: Exploring Implicit Bias, Judicial Diversity, And The Bench Trial, Melissa L. Breger

University of Richmond Law Review

All people harbor implicit biases—which by definition, are not always consciously recognized. Although trial judges are specifically trained to compartmentalize and shield their decisions from their own biases, implicit biases nonetheless seep into judicial decision making. This article explores various strategies to decrease implicit bias in bench trials. Questions are then raised about whether a judge who has faced bias personally would be more amenable and more open to curbing implicit bias professionally. Ultimately, does diversifying the trial court judiciary minimize implicit bias, while also creating a varied, multidimensional judicial voice comprised of multiple perspectives? This article will explore this …

Improving Lawyers’ Health By Addressing The Impact Of Adverse Childhood Experiences, Karen Oehme, Nat Stern

University of Richmond Law Review

Although the legal profession has recognized the importance of improving attorneys’ mental health, it has largely ignored recent social and scientific research on how adverse childhood experiences (“ACEs”) can harm attorneys’ long-term well-being. This article reviews the science of ACEs and argues that law schools and the legal profession should educate law students and attorneys about the impact of prior trauma on behavioral health. Without such education, law schools and the legal system are missing a crucial opportunity to help lawyers prevent and alleviate the maladaptive coping mechanisms that are associated with ACEs. Until such knowledge is widespread, many lawyers …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Life, Liberty, And The Pursuit Of Paid Parental Leave: How The United States Has Disadvantaged Working Families, Kate Miceli

University of Richmond Law Review

This article argues the critical need for the United States to pass a comprehensive paid parental leave program, specifically, the FAMILY Act, to support all families’ financial and caregiving needs and eliminate gender bias in the workplace. First, this article explains the current state of federal parental leave in the United States. Next, it details what an ideal parental leave policy should look like. Finally, it explores current paid parental leave options on the state level as well as proposed federal legislation.

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Scholarship

A range of scholars has subjected qualified immunity to a wave of criticism—and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a “compensating …

American Courts And The Sex Blind Spot: Legitimacy And Representation, Michele Goodwin, Mariah Lindsay

Fordham Law Review

We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (visà-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, …

Standing For Nothing, Robert A. Mikos

Vanderbilt Law School Faculty Publications

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such "protective" standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited-that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus, …

The High Court As De Facto Court Of Appeal: A Revisitation Of Leave Requirements In The Criminal And Family Court Jurisdictions, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

The High Court almostalways sits in its judicial capacity with a single Judge. The exceptions arelimited. This article is concerned with the expanded constitution of the HighCourt in the exercise of its criminal and family court jurisdictions, and with the opinion expressed in some recent cases that the enlarged three-judge panelof the High Court might in these contexts be viewed as a de facto Court of Appeal. Upon a contemplation of the consequencessaid to result from such occasional expansions of the court, it is suggested inthis article that the practice, while defensibly founded on practicalnecessity, should also lead to consideration …

A Child Litigant's Right To Counsel, Kevin Lapp

Loyola of Los Angeles Law Review

As the Supreme Court put it a half century ago, the right tocounsel for juveniles reflects “society’s special concern for children” and “is of the essence of justice.” In a variety of legal proceedings, from delinquency matters to child welfare proceedings to judicial bypass hearings, the law requires the appointment of counsel to child litigants. While coherent in the whole, the law regarding counsel for child litigants is a patchwork of state and federal constitutional rulings by courts and statutory grants. Legal scholarship about a child litigant’s right to counsel is similarly fragmented. Predominantly, legal scholars have examined arguments for …