Jurisprudence Commons^™

Recalibrating Cy Pres Settlements To Restore The Equilibrium, Michael J. Slobom

Dickinson Law Review (2017-Present)

Class action settlement funds become “non-distributable” when class members fail to claim their share of the settlement or the cost of distribution exceeds the value of individual claims. Before 1974, parties had two options for disposing of non-distributable funds: escheatment to the state or reversion to the defendant. Both options undermine unique objectives of the class action—namely, compensating small individual harms and deterring misconduct.

To balance the undermining effects of escheatment and reversion, courts incorporated the charitable trust doctrine of cy pres into the class action settlements context. Cy pres distributions direct non-distributable settlement funds to charities whose work aligns …

State Action And The Constitution's Middle Band, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there …

Pothole Laws, Appellate Courts, And Judicial Drift, Kenneth L. Gartner

The Journal of Appellate Practice and Process

This article begins by describing the structure of the appellate system in New York state, introducing the features of the typical New York pothole law, and summarizing the New York cases that set the substantive and procedural background for a discussion and analysis of judicial drift.

The Right To Appeal In Comparative Perspective, Dražan Djukić

The Journal of Appellate Practice and Process

Appellate procedures regarding the most serious crimes under domestic law are, in general, conducted differently in common law and civil law systems. This article reviews the differences concerning the primary facets of such proceedings, namely prosecutorial rights of appeal, access to appellate review, the scope of appellate review, the admission of additional evidence, appellate decisionmaking powers, and the functions of appellate review. It then explains that these differences result from dissimilar decisionmaking processes, degrees of adherence to the search for the truth, and sources of law.

Is Natural Law A Public Good?, Eliot T. Tracz

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Supreme Verbosity: The Roberts Court's Expanding Legacy, Mary Margaret Penrose

Faculty Scholarship

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

Tort Reform With Chinese Characteristics: Towards A Harmonious Society In The People's Republic Of China, Andrew J. Green

San Diego International Law Journal

This Article presents an analysis of tort law in China specifically focusing on personal injury tort law. It provides a general background on the role of tort law in society, and then it analyzes the specific laws, regulations, and cases that form the personal injury tort regime, covering both historical and recent laws. The article then explores the forces in society and politics that seem to be behind the new legal rules. It concludes by drawing attention to several steps that may be taken as part of further reform.

Pepperdine University School Of Law Legal Summaries, Armando Lopez

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Justiciability, Federalism, And The Administrative State, Zachary D. Clopton

Cornell Law Review

Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court …

Evaluation Of Circuit Judge Kavanaugh’S Opinions Concerning The Caa, Arnold W. Reitze Jr.

Utah Law Faculty Scholarship

Nineteen opinions by Circuit Judge Kavanaugh in the D.C. Circuit dealing with the Clean Air Act (CAA) were reviewed. In eleven of the cases, Circuit Judge Kavanaugh wrote the majority opinion. In two cases he wrote a concurring opinion and in six cases he dissented. The cases where Circuit Judge Kavanaugh wrote the majority opinion are: (1) Americans for Clean Energy v. EPA, 864 F.3d 691 (2017); (2) Mexichem Fluor, Inc. v. EPA, 866 F.3d 451(2017); (3) Energy Future Coalition v. EPA, 793 F.3d 141 (2015); (4) EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (2015); (5) In …

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

The Lost & Found Game Series: Teaching Medieval Religious Law In Context, Owen Gottlieb, Ian Schreiber

Presentations and other scholarship

Lost & Found is a strategy card-to-mobile game series that teaches medieval religious legal systems with attention to period accuracy and cultural and historical context. The Lost & Found project seeks to expand the discourse around religious legal systems, to enrich public conversations in a variety of communities, and to promote greater understanding of the religious traditions that build the fabric of the United States. Comparative religious literacy can build bridges between and within communities and prepare learners to be responsible citizens in our pluralist democracy. The first game in the series is a strategy game called Lost & Found …

Avian Jurisprudence And The Protection Of Migratory Birds In North America, Marshall A. Bowen

St. Mary's Law Journal

Abstract forthcoming

The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman

Georgia State University Law Review

As this Article sets forth, once a computerized algorithm is used by the government, constitutional rights may attach. And, at the very least, those rights require that algorithms used by the government as evidence in criminal trials be made available—both to litigants and the public. Scholars have discussed how the government’s refusal to disclose such algorithms runs afoul of defendants’ constitutional rights, but few have considered the public’s interest in these algorithms—or the widespread impact that public disclosure and auditing could have on ensuring their quality.

This Article aims to add to that discussion by setting forth a theory of …

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown

Georgia State University Law Review

Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.

Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea. With hundreds …

The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako

Georgia State University Law Review

The use of an array of scientific techniques and technologies is now considered customary within criminal justice, with technological developments and scientific advancements regularly added to the crime investigator’s arsenal. However, the scientific basis, reliability, and fallibility of the application of such “forensic science” (and the resulting scientific evidence) continues to come under intense scrutiny. In response to apparently irremediable problems with the quality of scientific evidence in the United Kingdom (UK), the government created the role of “Forensic Science Regulator” in 2007.

The introduction of a regulator was intended to establish quality standards for all forensic science providers in …

Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby

The Scholar: St. Mary's Law Review on Race and Social Justice

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply with 8 U.S.C. …

Holding Ridesharing Companies Accountable In Texas, Martha Alejandra Salas

St. Mary's Law Journal

Abstract forthcoming

Or To The People: Popular Sovereignty And The Power To Choose A Government, Elizabeth Anne Reese

Cardozo Law Review

To protect state sovereignty, contemporary textualism has reinvigorated the Tenth Amendment as a judicially enforceable limit on federal powers. However, in casting the Tenth Amendment as the states' rights amendment, these textualists have inexplicably glossed over the Tenth Amendment's final four words, which reserve powers to "the people." This Article highlights this inconsistency and argues that this omission ignores a vital structural protection against federal and state tyranny. Viewed through the same textualism that reinvigorated state sovereignty, the Tenth Amendment's final words cannot be redundant or superfluous but rather define and protect the people as a sovereign body capable of …