Jurisprudence Commons^™

Consent To Settle? A New Twist In The Tri-Partite Relationship, David F. Tavella

Barry Law Review

This article discusses the tri-partite relationship in litigation between insurers, the insured, and retained counsel. This article further discusses the complications for plaintiffs who wish to settle a case with defense counsel retained by the insurance carrier, and the ethical considerations that may arise under the Model Rules of Professional conduct when settlement is at the direction of the insurance carrier.

The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

Vanderbilt Law Review

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …

Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, Mitchell H. Rubinstein

University of Michigan Journal of Law Reform

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets."

This Article makes …

Atrocity Crimes Litigation: 2008 Year-In-Review, Beth Van Schaack

Faculty Publications

This survey of 2008's top developments in these international fora will focus on the law governing international crimes and applicable forms of responsibility. Several trends in the law are immediately apparent. The tribunals continue to delineate and clarify the interfaces between the various international crimes, particularly war crimes and crimes against humanity, which may be committed simultaneously or in parallel with each other. Several important cases went to judgment in 2008 that address war crimes drawn from the Hague tradition of international humanitarian law, and the international courts are demonstrating a greater facility for adjudicating highly technical aspects of this …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Peering Into The Judicial Magic Eight Ball: Arbitrary Decisions In The Area Of Juror Removal, 42 J. Marshall L. Rev. 813 (2009), Kimberly Wise

UIC Law Review

No abstract provided.

When The Music Stops, Why Not Require Certain Title Vii Plaintiffs To Find A Chair On Which To Rest Their Complaint?, 42 J. Marshall L. Rev. 505 (2009), Catherine R. Caifano

UIC Law Review

No abstract provided.

Is The Door Open Or Closed? Evaluating The Future Of The Federal Medical Peer-Review Privilege, 42 J. Marshall L. Rev. 561 (2009), Ghazal Sharifi

UIC Law Review

No abstract provided.

David Doe V. Goliath, Inc.: Judicial Ferment In 2009 For Business Plaintiffs Seeking The Identities Of Anonymous Online Speakers, 43 J. Marshall L. Rev. 1 (2009), Clay Calvert, Kayla Gutierrez, Karla D. Kennedy, Kara Carnley Murrhee

UIC Law Review

No abstract provided.

Silencing Tory Bowen: The Legal Implications Of Word Bans In Rape Trials, 43 J. Marshall L. Rev. 215 (2009), Randah Atassi

UIC Law Review

No abstract provided.

Ride At Your Own Risk: Bicyling And Government Tort Immunity In Illinois, 43 J. Marshall L. Rev. 293 (2009), John Ochoa

UIC Law Review

No abstract provided.

From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh

Articles, Book Chapters, & Popular Press

In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …

Signaling And Plea Bargaining's Innocence Problem, Russell D. Covey

Faculty Publications By Year

The dominant theoretical model of plea bargaining predicts that, under conditions of full information and rational choice, criminal cases should uniformly be settled through plea bargaining. That prediction holds for innocent and guilty defendants alike. Because it is perfectly rational for innocent defendants to plead guilty, plea bargaining might be said to have an "innocence problem." Plea bargaining's innocence problem is, at bottom, the result of a signaling defect. Innocent defendants lacking verifiable innocence claims are pooled together with guilty defendants who falsely proclaim innocence. As a result, both groups of defendants are treated similarly at trial and in plea …

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

Toward A Unified Theory Of Retroactivity, Steven W. Allen

NYLS Law Review

No abstract provided.

Federal Criminal Appeals: A Brief Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Although few dispute the appellate process's centrality to justice systems, especially in the criminal context, debates over rationales supporting the appellate process's vaunted status in adjudication systems persist. Clearly, it is difficult to overestimate error correction as a justification for an appellate system. Of course, other rationales, such as a desire for lawmaking and legitimacy, also support the inclusion of a mechanism for appellate review in an adjudication system.

Though comparative latecomers, appellate courts are now ubiquitous in the American legal landscape—appellate review exists in state and federal systems for criminal convictions. Despite general agreement and widespread understanding that access …

Proving Preemption By Proving Exemption: The Quandary Of The National Securities Market Improvement Act, Jeffrey D. Chadwick

University of Richmond Law Review

No abstract provided.

Cafa Judicata: A Tale Of Waste And Politics, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005.

CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions …

Guiding Litigation: Applying Law To Facts In Germany, James Maxeiner

All Faculty Scholarship

"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a "simple-minded demand" that is "silly and misleading. It is not; it is what the public rightly expects from law. H.L.A. Hart, reminded U.S. jurists that "conventional legal thought in all countries conceives as the standard judicial function: the impartial application of determinant existing rules in the settlement of disputes."

This essay discusses the German method of judicial applying of law to facts. called, in German, the "Relationstechnik," that is, in English, literally "relationship technique." This essay shows how …

The Mission Of The Criminal Law Edit, Alignment And Reform Commission (Clear): An Introductory Commentary, 41 J. Marshall L. Rev. 611 (2008), John Decker

UIC Law Review

No abstract provided.

Nontestimonial Declarations Against Penal Interest: Eschewing The Corroboration Requirement For Inculpatory Statements, 41 J. Marshall L. Rev. 969 (2008), Michael Duffy

UIC Law Review

No abstract provided.

The Illinois Criminal Code Of 2009: Providing Clarity In The Law, 41 J. Marshall L. Rev. 815 (2008), Governor James R. Thompson, Justice Gino Divito, Peter G. Baroni, Kathy Saltmarsh, Daniel Mayerfeld

UIC Law Review

No abstract provided.

Case Note: Golden Gate Restaurant Association V. City And County Of San Francisco: Setting The Stage For Supreme Court Review Of The Most Important Preemption Matter In The History Of Erisa, 41 J. Marshall L. Rev. 995 (2008), Joshua Waldbeser

UIC Law Review

No abstract provided.

Magic Words And Millionaires: The Supreme Court's Assault On Campaign Funding, 42 J. Marshall L. Rev. 1 (2008), Michael J. Kasper

UIC Law Review

No abstract provided.

First Things First: A Principled Approach To Patent Administrative Law, 42 J. Marshall L. Rev. 29 (2008), Kali Murray

UIC Law Review

No abstract provided.

An Analysis Of The Contraction Of Limited Tort Immunity For Recreational Liability In Illinois, 42 J. Marshall L. Rev. 65 (2008), Barnett P. Ruttenberg, Thomas Gianturco

UIC Law Review

No abstract provided.

Discriminatory Pay And Title Vii: Filing A Timely Claim, 41 J. Marshall L. Rev. 325 (2008), Megan E. Mowrey

UIC Law Review

No abstract provided.

United States V. Grier, Lyndsay V. Ruotolo

NYLS Law Review

No abstract provided.

Constitutional Law And Values—Version ’08 (Not Necessarily An Upgrade), Nadine Strossen

NYLS Law Review

No abstract provided.

'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 …