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When Facts Don’T Matter, Eric Berger 2018 University of Nebraska College of Law

When Facts Don’T Matter, Eric Berger

Nebraska College of Law: Faculty Publications

We are used to thinking that facts shape legal outcomes, but sometimes the Supreme Court wants nothing to do with facts. In some high-profile constitutional decisions, the Roberts Court has ignored important congressional findings, deeming irrelevant facts that document the very mischief Congress sought to remedy. Similarly, in these same cases the Court exploits the muddy line between facial and as-applied challenges to avoid confronting particular facts. The Justices in these cases do not question the veracity of seemingly relevant facts. Rather, they write their opinions as though these facts don’t matter. This Article examines the Court’s penchant for brushing …


Judicial Externships: Sharing Current Practices, Dinah Lennon Archambeault 2018 Duke Law

Judicial Externships: Sharing Current Practices, Dinah Lennon Archambeault

Duke Law Master of Judicial Studies Theses

The need for externships has risen over the years as the importance of providing experiential education to supplement traditional doctrinal law school education has become generally acknowledged. Despite the many articles on externships, few, if any, have addressed how judicial externs are selected and how judicial externships are structured in the courts.

It was necessary to conduct qualitative research to determine how various courts address their extern programs, if at all. Based on the research I have undertaken, practices vary among courts and judges. Not only is there no uniform practice with respect to which courts and even judges place …


Innovative Justice: Federal Reentry Drug Courts – How Should We Measure Success?, Timothy D. DeGiusti 2018 Duke Law

Innovative Justice: Federal Reentry Drug Courts – How Should We Measure Success?, Timothy D. Degiusti

Duke Law Master of Judicial Studies Theses

In response to the drug abuse and addiction epidemic in the United States, innovative ways of dealing with non-violent drug offenders within the criminal justice system began to emerge in the late 1980s. Special court dockets – commonly referred to as drug courts – were developed featuring an interdisciplinary team of criminal justice and mental health professionals, led by a presiding judge. Drug courts and other problem-solving courts have proliferated within the state court system, numbering 3,057 by the end of 2014. The use of such courts is expanding among the states, but the federal courts have been slow to …


Clerking For God’S Grandfather: Chauncey Belknap’S Year With Justice Oliver Wendell Holmes, Jr., Todd C. Peppers, Ira Brad Matetsky, Elizabeth R. Williams, Jessica Winn 2018 Washington and Lee University School of Law

Clerking For God’S Grandfather: Chauncey Belknap’S Year With Justice Oliver Wendell Holmes, Jr., Todd C. Peppers, Ira Brad Matetsky, Elizabeth R. Williams, Jessica Winn

Scholarly Articles

Most of what we know about law clerks comes from the clerks themselves, usually in the form of law review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their experiences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contradistinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer a real-time, …


The Office Of The Prosecutor: Seeking Justice Or Serving Global Imperialism?, Shannon Fyfe 2018 Washington and Lee University School of Law

The Office Of The Prosecutor: Seeking Justice Or Serving Global Imperialism?, Shannon Fyfe

Scholarly Articles

The international criminal courts and tribunals, especially the ICC, have been strongly criticized for their susceptibility to political influence. Some have argued that the ICC has a distinctly Western bias and is participating in a new kind of imperialism in Africa. Others argue that history and the complicity of the West should disqualify the international community from demanding the prosecution of individuals participating in conflicts resulting directly from colonialism. Many have focused on the nature of the creation of the judicial bodies and the inherent political nature of judicial decisions regarding whom to prosecute. In this article, I offer a …


Disbelief Doctrines, Sandra F. Sperino 2018 University of Cincinnati College of Law

Disbelief Doctrines, Sandra F. Sperino

Faculty Articles and Other Publications

Employment discrimination law is riddled with doctrines that tell courts to believe employers and not workers. Judges often use these disbelief doctrines to dismiss cases at the summary judgment stage. At times, judges even use them after a jury trial to justify nullifying jury verdicts in favor of workers.

This article brings together many disparate discrimination doctrines and shows how they function as disbelief doctrines, causing courts to believe employers and not workers. The strongest disbelief doctrines include the stray comments doctrine, the same decisionmaker inference, and the same protected class inference. However, these are not the only ones. Even …


Supreme Court Of The United States, October Term 2018 Preview, Georgetown University Law Center, Supreme Court Institute 2018 Georgetown University Law Center

Supreme Court Of The United States, October Term 2018 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.


Disciplining Deference: Strengthening The Role Of The Federal Courts In The National Security Realm, Dominic X. Barceleau 2018 Notre Dame Law School

Disciplining Deference: Strengthening The Role Of The Federal Courts In The National Security Realm, Dominic X. Barceleau

Notre Dame Law Review

This Note will argue that federal courts need to be more “disciplined” in their deference determinations in order to effectively check the Executive’s power. Part I will look at the Constitution and its allocation of foreign relations powers for evidence of the appropriate amount of deference that ought to be shown by the judiciary. While the text of the Constitution is largely silent on this question, Part I will show that this silence does not exclude a role for the judiciary in foreign affairs. Part II will proceed to discuss several important Supreme Court decisions that have helped to flesh …


The Lottery Docket, Daniel Epps, William Ortman 2018 Wayne State University

The Lottery Docket, Daniel Epps, William Ortman

Law Faculty Research Publications

No abstract provided.


Contents, 2018 University of Tennessee College of Law

Contents

Tennessee Law Review

No abstract provided.


Debunking The Ncaa's Myth That Amateurism Conforms With Antitrust Law: A Legal And Statistical Analysis, Thomas A. Baker III, Marc Edelman, Nicholas M. Watanabe 2018 University of Tennessee College of Law

Debunking The Ncaa's Myth That Amateurism Conforms With Antitrust Law: A Legal And Statistical Analysis, Thomas A. Baker Iii, Marc Edelman, Nicholas M. Watanabe

Tennessee Law Review

This article provides the first detailed study to show that paying college football players does not decrease fan interest in watching college football-substantially debunking the NCAA's myth that amateurism conforms to the requirements of antitrust law. Part I of this article details the history of collegiate sports in the United States and the NCAA's amateurism rules. Part II examines the origins and evolution of the NCAA's procompetitive presumption defense of amateurism; a legal fiction that presumes consumer interest in amateurism justifies a quasi-antitrust exemption for the NCAA's "no pay" rules. Part III sets the framework for our empirical study by …


Faithful Execution: The Persistent Myth Of Widespread Prosecutorial Misconduct, Timothy C. Harker 2018 University of Tennessee College of Law

Faithful Execution: The Persistent Myth Of Widespread Prosecutorial Misconduct, Timothy C. Harker

Tennessee Law Review

Professors, politicians, activists, journalists, and bloggers alike stand ready to denounce prosecutorial misconduct-the more egregious the misconduct, the more vociferous the denunciation, and rightly so. Ordinarily, such public denunciation would have a salubrious effect. Unfortunately, this remedial process has been hijacked by those who insist that prosecutorial misconduct is widespread and has infected all facets of the criminal justice system, to the detriment of defendants and the consternation of the public. Their vitriol precludes a dispassionate evaluation of the criminal justice system generally and prosecutorial misconduct specifically. This article demonstrates that, contrary to expectations, prosecutorial misconduct occurs with reassuring infrequency. …


Restoring Fairness To Campus Sex Tribunals, Cynthia V. Ward 2018 University of Tennessee College of Law

Restoring Fairness To Campus Sex Tribunals, Cynthia V. Ward

Tennessee Law Review

No abstract provided.


Contents, 2018 University of Tennessee College of Law

Contents

Tennessee Law Review

No abstract provided.


A Fighting Chance? Small Family Farmers And How Little We Know, Jamey Mavis Lowdermilk 2018 University of Tennessee College of Law

A Fighting Chance? Small Family Farmers And How Little We Know, Jamey Mavis Lowdermilk

Tennessee Law Review

No abstract provided.


Tribute To Spenser F. Powell, John L. Sobieski Jr., Marshall Jensen 2018 University of Tennessee College of Law

Tribute To Spenser F. Powell, John L. Sobieski Jr., Marshall Jensen

Tennessee Law Review

No abstract provided.


Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot 2018 University of Tennessee College of Law

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot

Tennessee Law Review

No abstract provided.


Contents, 2018 University of Tennessee College of Law

Contents

Tennessee Law Review

No abstract provided.


The New Digital Wild West: Regulating The Explosion Of Initial Coin Offerings, Randolph A. Robinson II 2018 University of Tennessee College of Law

The New Digital Wild West: Regulating The Explosion Of Initial Coin Offerings, Randolph A. Robinson Ii

Tennessee Law Review

In less than a calendar year, initial coin offerings or "ICOs" have become the fastest growing capital market in the world. In 2016, an entity called The DAO raised $160 million by selling crypto-tokens to over 15,000 individual purchasers around the globe. This massive fund raise would give rise to an entirely new capital ecosystem. In 2017, initial coin offerings would explode, raising a collective $5.1 billion. All of this was done without a single registration being filed with the SEC, and many of these initial coin offerings-including several $100 million raises-were based on little more than a white paper …


Defamation Per Se And Transgender Status: When Macro-Level Value Judgments About Equality Trump Micro-Level Reputational Injury, Clay Calvert, Ashton T. Hampton, Austin Vining 2018 University of Tennessee College of Law

Defamation Per Se And Transgender Status: When Macro-Level Value Judgments About Equality Trump Micro-Level Reputational Injury, Clay Calvert, Ashton T. Hampton, Austin Vining

Tennessee Law Review

This Article uses the September 2017 defamation decision in Simmons v. American Media, Inc. as a springboard for examining defamatory meaning and reputational injury. Specifically, it focuses on cases in which judges acknowledge that plaintiffs have suffered reputational harm yet rule for defendants because promoting the cultural value of equality weighs against redress. In Simmons, a normative, axiological judgment-that the law should neither sanction nor ratify prejudicial views about transgender individuals prevailed at the trial court level over a celebrity's ability to recover for alleged reputational harm. Simmons sits at a dangerous intersection: a crossroads where a noble judicial desire …


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