Courts Commons^™

Filling Judge Flaum's Vacant Seventh Circuit Seat, Carl Tobias

Law Faculty Publications

"On November 30, 2020, United States Court of Appeals for the Seventh Circuit Judge Joel Flaum assumed senior status after completing more than forty years in public service as one of the nation’s preeminent jurists. By then, Judge Flaum had compiled the longest active status tenure provided by a federal appellate court jurist, serving over practically thirty-eight years, six as chief judge of the prominent tribunal. On this day, the Senate also promptly resumed Congress’ lame duck session, which the upper chamber had begun after voters chose Joe Biden as President yet concomitantly appeared to retain a close Grand Old …

Mergers, Macs, And Covid-19, Brian Jm Quinn

University of Richmond Law Review

The conventional wisdom is that MAE/MACs in merger agreements provide an opportunity for buyers to renegotiate merger agreements in the event of intervening adverse events. However, the experience following the COVID-19 outbreak suggests that the conventional wisdom is incorrect or at least overstated. In fact, MAE/MACs shift the risk of exogenous adverse events (like COVID-19) to buyers while leaving only the risks of adverse endogenous and semi-endogenous events with the seller. The consequence of this risk-shifting is to strictly limit the circumstances under which a buyer can credibly lean on a MAE/MAC to threaten to terminate a merger agreement and …

Almond Beverage, Oat Water, And Soaked Soybean Juice: How The Dairy Pride Act Attempts To Remedy Consumer Confusion About Plant-Based Milks, Michelle E. Hoffer

University of Richmond Law Review

With sales of plant-based milks, such as almond and soy milk, on the rise and dairy industry sales declining, dairy industry supporters are taking issue with plant-based milk products calling themselves “milk.”10 In an effort to combat the “mislabeling” of non-dairy products, a few Senators banded together in an attempt to save the dairy industry by creating the DAIRY PRIDE Act.11 The Act was introduced in an effort to prohibit plant-based milk producers from using the term “milk” on their products and instead use a less misleading name, such as “almond imitation milk” or “soy beverage.”12 This Comment argues that, …

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

Publications

No abstract provided.

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

Abolishing The Communications Decency Act Might Sanitize "Political Biased," "Digitally Polluted," And "Dangerously Toxic" Social Media? - Judicial And Statistical Guidance From Federal-Preemption, Safe-Harbor And Rights-Preservation Decisions, Willy E. Rice

Faculty Articles

Sitting and former U.S. Presidents, as well as members of the general public, financial, political and educational institutions, use social media. Yet, an overwhelming majority of users, content creators, parents, "conservatives," "progressives," Democrats, and Republicans distrust social media owners. Some critics allege that owners "digitally pollute" platforms by encouraging users to post "corrosive, dangerous, toxic, and illegal content." Other critics assert that service providers' purportedly objective content moderation algorithms are biased-discriminating irrationally on the basis of users' political association, ideology, socioeconomic status, gender, and ethnicity. Republicans and Democrats have crafted roughly twenty bills on this matter. In theory, the enacted …

"Will The Real Mens Rea Please Stand Up: Assessing The Fifth Circuit's Kickback Jurisprudence After United States V. Nora, John J. Locurto

Faculty Articles

When an appellate court goes out of its way to note, not once but twice, that a defendant convicted of fraud and conspiracy was just twenty-two years old and had only a high school degree when he joined a criminal venture, it is probably a safe bet that a reversal is coming. That is exactly what happened in United States v. Nora. The United States Court of Appeals for the Fifth Circuit overturned young Jonathon Nora's conviction for his part in a multi-million-dollar scheme to defraud Medicare. The case is, sadly enough, nondescript as health care frauds go, except for …

“Rule Of Inclusion" Confusion, Dora Klein

Faculty Articles

Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …

The Citation Of Unpublished Cases In The Wake Of Covid-19, Michael L. Smith

Faculty Articles

California's Rules of Court prohibit the citation of unpublished state court opinions. Courts and litigants, however, may still cite unpublished federal opinions and rulings and unpublished opinions from other states' courts. This may result in problems, such as limiting courts' and parties' authorities to a skewed sample set, and the covert importation of inapplicable, stricter federal court pleading standards in state court cases. COVID-19 was a stress-test that brought the problems with California's citation rules into focus. The pandemic led to a flood of claims for pandemic-related business interruptions by insured business owners against their insurance companies. While state courts …

International Rule Of Law And Domestic Courts: A Few Concerns, Akhila Basalalli

Articles

The manifestation of the international rule of law appears as one of the possible paths to check the rule of power and establish an egalitarian system. Many international organizations have emphasized on the international rule of law in their objectives and mandates and have called the states to act in their service. The domestic courts have resonated with the call by exhibiting internationalism in their decisions. The international norms have been domesticated by the courts by adopting several incorporation and interpretation methods. The domestic courts, therefore, have been called as the ‘agents’ in the service of international law and protectors …

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.

Comic Books, The First Amendment, And The “Best Test” For Right Of Publicity Issues, Rachel Silverstein

Touro Law Review

No abstract provided.

The Injustices Behind America’S Incarceration Boom, Jay Widlacki

Undergraduate Research Symposium

America’s mass incarceration system functions as a tool to keep their black communities impoverished and powerless. Black people are locked away at disproportionate rates; moreover, statistics suggest that the criminal justice system is racially biased at every step. These two systems work together to keep an alarmingly high amount of black people behind bars so businesses can profit off of them. If ex-convicts leave the prison, they will find it hard to reintegrate into society because of the post-prison fees, parole requirements, discrimination, and disenfranchisement. Without rehabilitation available in most prisons, these barriers make the prison system akin to a …

What Happens In State Court Stays In State Court Comity And The Relitigation Exception To The Anti-Injunction Act, Juan Antonio Solis, Rory Ryan

FIU Law Review

No abstract provided.

Pluralism And Convergence: Judicial Standardization In Canadian Corporate Law, Camden Hutchison

All Faculty Publications

This article uses statistical analysis of judicial decisions to address whether (and to what extent) the common law of corporations varies among the provinces. The primary findings are: (1) as measured by the number of case citations, provincial courts of appeal favour precedent from their home provinces; (2) the Supreme Court of Canada exerts a powerful standardizing influence across the provinces; and (3) on balance (and despite the “home province” bias of provincial courts of appeal), Canadian corporate law is largely homogeneous, with little variation among provincial jurisdictions. This article concludes that—for a variety of reasons—it is unlikely that any …

Year In Review: The Federal Circuit's 2020 Government Contract Law Decisions, The Honorable Jeri Kaylene Somers, Jedidiah Blake Ii, Matthew Gurr, Benjamin Phillips Iii

American University Law Review

This Article discusses a number of important 2020 government contracts decisions from the U.S. Court of Appeals for the Federal Circuit. As in previous years, appeals involving government contracting issues comprised only a small portion of the Federal Circuit’s docket, the majority of which is consistently intellectual property disputes. Although only comprising a small portion of the docket, the government contracts appeals that the Federal Circuit considered in 2020 covered a wide range of topics. This year-in-review first addresses Federal Circuit decisions across three major issues in government contracts appeals—cost and pricing, contract interpretation, and bid protests—before examining other significant …

A Right For Retirement Unconscionable Contracts, The Right (Not) To Associate, And Citizens United, Paul S. Miller

American University Law Review

The doctrine of unconscionable contracts is an equity doctrine. As such, it does not ask whether an agreement is or is not an enforceable contract; legality has no bearing. Rather, the doctrine asks whether it would be it be fit and proper . . . would it be fair . . . for a court to enforce such a contract. Using the doctrine, courts examine whether the price paid for a good or service far outstrips any benefit gained.

What if that price is the surrender of a basic right, the Right (Not) to Associate? The Supreme Court says that …

Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence” – the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law's default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit, commercial …

Pleadings In A Pandemic: The Role, Regulation, And Redesign Of Eviction Court Documents, Daniel W. Bernal

Oklahoma Law Review

No abstract provided.

Benevolent Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the diversity …