Wednesday, March 26, 2014
South Texas Law Review has released its Volume 55, No. 1, which includes:
- A Comity of Errors: Treading on State Court Jurisdiction in the Name of Federalism, by Emily L. Buchanan;
- The Jurisprudence of Texas Supreme Court Justice Robert A. "Bob" Gammage: A Legacy ofCivil Rights and Liberties, by John C. Domino;
- Ethical Falsehood: Towards a Moral Values Paradigm in False-Speech Adjudication, by Daniel Ross Goodman;
- Challenging the Federal Prohibition on Gun Possession by Nonviolent Felons, by Conrad Kahn.
- Comment: Private Employers & Minority Preferences: Will Somthing Other Than a Remedial Justification be Sufficient, by Jill Hale;
- Comment: Texas' Iron-Clad Corporate Veil: Re-Examining Section 21.223 of the Texas Business Organizations Code, by Rachel Thompson; and
- Comment: Litigant Consent as a Constitutional Threat: Reconsidering the Jurisdiction of Magistrate Courts after Stern v. Marshall, by Lori Yount.
Saturday, March 22, 2014
Campbell Law Review has announced a call for papers for its October 17, 2014, symposium, "One City at a Time: The Role and Increasing Presence of Chapter 9 Municipal Bankruptcies." The call for papers announcement is here. HT: Calling All Papers!
Monday, March 17, 2014
SMU's Journal of Air Law and Commerce is hosting its 48th Annual Air Law Symposium on April 3-4 at the Omni Mandalay Hotel in Las Colinas, Texas. Information on this symposium, including agenda and registration details, is found here.
Sunday, March 16, 2014
Property has always been treated somewhat exceptionally in the realm of conflict of laws, but today conflicts rules for property are more unusual than ever — not because they have changed, but because they haven’t. Decades ago, most states discarded the general body of traditional conflict-of-laws doctrines, a transformation referred to as the Conflicts Revolution. Property, however, remains mysteriously untouched. The basic common-law principle is that property is governed by the law of its location — the situs rule. Despite persistent academic criticism, the situs rule is still followed in every state.
This article argues certain structural features of property support the situs rule, notwithstanding the Conflicts Revolution. Theorists have increasingly stressed property’s “in rem” quality — the idea that property is “good against the world.” This article shows how that feature creates a special need for uniform treatment across jurisdictions, such that a single, exclusive source of law is applicable to questions concerning the division of rights in a given asset. Property’s in rem character is a consequence of the allocational model used as the central organizing concept in property law. That model treats each property entitlement as part of a zero-sum game, in that one person’s entitlement to an asset means no one else can validly hold an incompatible claim to the same asset. Using different rules to resolve the same legal issue both aggravates the information cost problems generated by such a system and undermines its overall coherence. The situs rule in turn responds to the elevated need for uniformity in the property context by creating a focal point that enables states to coordinate their conflicts rules. The article shows how uniformity devices pervade property, including intellectual property and even other fields with certain formal resemblances, such as marriage and corporations law. Beyond its implications for issues of property jurisdiction, this article helps show where property’s much discussed “in rem” character comes from, what it really means, and how it distinguishes property from other private law fields like contract and tort.
In this paper, Stern effectively defends the "situs rule" against "academic hostility." At the risk of oversimplifying, the situs rule states that the place where the property is located holds exclusive jurisdiction over cases relating to that property. Stern explains, "the rule calls for the resolution of property questions using the substantive law of the situs of the property in dispute."
Monday, March 10, 2014
Tuesday, March 4, 2014
Tigran Eldred (New England Law) has posted "Motivation Matters: Guideline 10.13 and Other Mechanisms for Preventing Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective Assistance in Death Penalty Cases" on SSRN. The article is forthcoming in the Hofstra Law Review. Here is the abstract:
Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively viewing the claim of poor performance as an attack on their competency and reputation. To date, there has been no systematic attempt to understand how these tensions are mediated and resolved.
To fill this gap, this article explores the psychological dimensions of how lawyers can be expected to respond to allegations of ineffectiveness. Relying on empirical research into “motivated reasoning” – a phenomenon that describes the many ways in which people unconsciously seek out, interpret and recall information in a manner that is consistent with their pre-conceived wishes and desires – it argues that motivation can be expected to play a dominant role in how lawyers respond to alleged ineffectiveness. Further, because motivation exercises its power implicitly, efforts to encourage compliance with the obligations set forth in Guideline 10.13 must take into account the subtle psychological forces that influence behavior. Simply put: motivation matters.
Counsel's ethical obligations in response to an effective assistance claim is an important and often overlooked study area. Such such claims are frequent in the criminal system, and are frought with ethical landmines. Attorneys facing such a claim must answer the claim with due regard to the duty to maintain client confidentiality. Under what circumstances may an attorney reveal client confidences when responding to the ineffective assistance claim? This is a serious question attorneys and courts must address in such cases.
Professor Eldred gives criminal law attorneys much to consider when confronting a claim that representation rendered to a client has been deficient. He has highlighted important ethical considerations an attory must weigh when responding to an ineffecitve assistance claim. The paper is also useful to judges that issue orders compelling responses to such claims. I don't agree with everything Eldred has written, but on the whole, this paper covers new ground and will be useful to practicing lawyers and judges.
Monday, December 9, 2013
Seton Hall Law School Professors Tim Gynn and Charlie Sullivan, both giants in this field, just posted a very unusual article on arbitration that readers may find of interest. It can be downloaded at no charge here. Professor Gynn blogged about it here.
The article is unusual because it is not really an article. It is written in the form of U.S. Supreme Court decision by Justice Scalia. The article/case addresses whether the failure of a contract to mention the word "arbitration" prevents a court from finding that the parties intended disputes under that agreement to be arbitrated. The article/case concludes that this would not prevent arbitration because there is a strong presumption in favor of arbitration.
Interestingly, the article/case, however failed to cite the Steelworkers Trilogy line of cases which squarely held that there was a presumption in favor of arbitrability. Now, those cases were decided under Section 301, not the FAA. But is there a difference? I do not think so, particularly after Pyett.
The article only cited one law review article. Many Supreme Court decisions do not even cite one. Hopefully, the Court will recognize the value of good legal scholarship.
Mitchell H .Rubinstein
Hat Tip: Tim Gynn
Tuesday, November 26, 2013
Harvard Law Review has released its Annual Supreme Court Review. This is the table of contents:
- Forward, Equality Divided, by Reva B Siegel (Yale);
- Comment, Beyond the Discrimination Model on Voting, by Samuel Issacharoff (NYU);
- Comment, Windsor and Brown: Marriage Equality and Racial Equality, by Michael J. Klarman (Harvard);
- Comment, License, Registration, Cheek Swab: DNA Testing and the Divided Court, by Erin Murphy (NYU).
The issue also includes the section on the Term's leading cases plus court statistics. This is a link to the issue. There are also links at the HLR website to online responses to the Isaacharoff, Klarman and Murphy comments as well.
Friday, November 1, 2013
The Summer 2013 University of Chicago Law Review has "Tortfest," by J. Shahar Dillbury (Alabama); "Judging the Flood of Litigation," by Marin K. Levy (Duke); "Unbundling Constitutionality," by Richard Primus (Michigan); and "When Nudges Fail: Slippery Defaults," by Lauren E. Willis (Loyola LA, visiting Harvard).
The Spring 2013 Brooklyn Law Review has "The Great and Mighty Tax Law: How the Roberts Court Has Reduced Contitutional Scrutiny of Taxes and Tax Expenditures," by Linda Sugin (Fordham); "Beyond Blood and Borders: Finding Meaning in Birthright Citizenship," by D. Carolina Nunez (Brigham Young); "Harmonizing the Affordable Care Act with the Three Main National Systems for Healthcare Quality Improvement: The Tort, Licensure and Hospital Peer Review Hearings Systems," by Katharine Van Tassel (Akron); and "Software Patents and/or Software Development," by Wendy Seltzer.
The most recent Akron Law Review (Vol. 46, No. 4) includes "Symposium: The Next Generation of Envoirnmental and Natural Resources Law: What Has Changed in Forty Years and What Needs To Change as a Result."
The August 2013 Buffalo Law Review includes, "Hollow Spaces," by Charles H. Brower, II (Wayne State); "Shareholder Derivative Litigation's Historical and Normative Foundations," by Ann M. Scarlett (Saint Louis); and "So You Want to Have a Second Child? Second Child Bias and the Justification-Suppression Model of Prejudice in Family Responsibilities Discrimination," by Kyle C. Velte (Denver).
Thursday, October 31, 2013
This symposium will explore the theoretical and doctrinal affinities and clashes between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars. Symposium participants will explore whether the connections are strong enough to justify robust use of tort principles in anti- discrimination analysis and whether anti-discrimination law should be interpreted through a torts lens. They also will discuss whether tort law should selectively adopt anti-discrimination norms and analysis.
On November 15, the Oklahoma Law Review will host a half-day symposium on law enforcement access to third party records. This strikes me as a particularly relevant and timely topic; attorneys or other interested persons in the Central Oklahoma area during this time might consider this event to learn more on the subject.
Wednesday, October 23, 2013
The Minnesota Law Review will host a one day sympsium, "The Future of Organized Labor: Labor Law in the 21st Century" on October 25 in Mondale Hall on the law school campus in Minneapolis. The keynote speakers are Craig Becker, general counsel for the AFL-CIO and G. Roger King of Jones Day in Columbus, Ohio.
According to the law review's website, the symposium is at capacity and registration is closed. Interested persons, however, may want to contact the law review for the symposium issue when it is released.
Monday, October 21, 2013
On October 25, the Case Western Reserve Law Review will host their fall 2013 symposium, "The Supreme Court’s Treatment of Same-Sex Marriage in United States v. Windsor & Hollingsworth v. Perry: Analysis and Implications." Here is the Agenda (pdf).
Thursday, October 17, 2013
Rebecca Haw (Vanderbilt) has posted, "Delay and its Benefits for Judicial Rulemaking Under Scientific Uncertainty" on SSRN. This is the abstract:
The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or changing the rule because of the same arguments at time two — as a tool to improve decision-making amidst scientific uncertainty.
Using the Court’s antitrust jurisprudence as an example, this Article shows that delay can have a salutary effect on rule-making because it allows the Court to use academic consensus (that either develops or matures between times one and two) as a signal of scientific reliability. As a conservatizing device, delay operates in the common law tradition, but it also avoids some of the failures associated with traditional common law features like stare decisis and incrementalism. The Article concludes by contrasting Supreme Court decision-making with an area of law where delay is impractical or undesirable. In toxic tort litigation, where the goals of deterrence and compensation preclude the use of delay in the face of new scientific arguments, the law pays the price in uncertainty and error.
This article is forthcoming in the Boston College Law Review.
Tuesday, October 15, 2013
From the University of Illinois School of Law website:
In honor or Larry Ribstein’s innumerable contributions to legal scholarship and the academy, the University of Illinois College of Law will host the Larry Ribstein Memorial Symposium on October 17-18, 2013. The Symposium is organized by Professors Amitai Aviram, Ralph Brubaker, Nuno Garoupa, Heidi Hurd, Christine Hurt, and David Hyman; and will consist of a series of roundtable sessions, including paper presentations and discussion. Articles will be published in the University of Illinois Law Review in 2014.
For more information, click here.
Hat Tip: Legal Scholarship Blog.
Monday, October 14, 2013
On November 1, the Elon Law Review, located in Greensboro, North Carolina, will host its fall 2013 symposium on the implications of United States v. Windsor and Hollingsworth v. Perry, the United State Supreme Court's two major marriage equality decisions from the Fall 2012 Term. The symposium is co-sponsored by the Marriage and Family Law Research Project of BYU Law School, located in Provo, Utah.
Friday, October 11, 2013
The October 2013 California Law Review includes "Appellate Review of Social Facts in Constitutional Rights Cases," by Caitlin E. Borgmann (CUNY); "Sticky Slopes," by David Schraub; and "Intellectual Property Doctrine and Mid-Level Principles," by David H. Blankfein-Tabachnick (Penn State, visiting), with a reply by Robert P. Merges (Cal-Berkeley).
The August 2013 Hastings Law Journal includes Symposium: From Bench to Society: Law and Ethics at the Frontier of Genomic Technology. From the introductory essay by Jamie S. King (Hastings), the symposium's purpose was to, "examin[e] the vast potential implications (both good and bad) of the next wave of major advances in genetic andgenomic testing for patients, providers, their families, the practice of medicine, and society as a whole."
Volume V, Number 1, Elon Law Review has the symposium, "A Radical Notion of Democracy: Law, Race, and Albion Tourgee, 1865-1905." Contributions include an introduction by Sally Green, "Reflections on Albion Tourgee's 1896 View of the Supreme Court: A "Consistent Enemy of Personal Liberty and Equal Rights," by Michael Kent Curtis (Wake Forest); "The Past as Prologue: Albion Tourgee and the North Carolina Constitution," by Judge Robert N. Hunter, Jr.; "The National Citizen's Rights Association: Precursor of the NAACP," by Carolyn L. Karcher (Temple, Liberal Arts); "The Legitimacy of Law in Literature: The Case of Albion W. Tourgee," by Brook Thomas; and "Adaline and the Judge: An Ex-Slave Girl's Journey With Albion W. Tourgee," by Naurice Frank Woods, Jr (UNC-Greensboro, African-American Studies). Touree was a Greensboro former, lawyer, judge, and novelist best known perhaps for representing Homer Plessey before the United States Supreme Court in Plessey v. Ferguson, 163 U.S. 537 (1896). See also here and here.
Volume 101, Number 4, Kentucky Law Review includes, "Stepping Into the Gap: Violent Crime Victims and the Right to Closure; and a Discursive Shift Away From the Zero Sum Resolutions," by Blanche Bong Cook; "White Collar Overcriminalization: Deterrence, Plea Bargaining, and the Loss of Innocence," by Lucian E. Dervan (Southern Illinois); "He Said, She Said, Let's Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC and Social Science," by Joni Hersch and Beverly Moran; and "Justice Holmes's Bad Man and the Depleted Purposes of Punitive Damages," by Jill Wieber Lens.
The Spring 2013 New England Law Review has its Symposium: Crisis in the Judiciary. There are links to the articles at the link. This symposium's primary focus is upon the challenges the judiciary faces by restrained budgets at the federal and state levels.
The August 2013 UCLA Law Revew has Symposium: Twenty-First Century Litigation: Pathologies and Possibilities.
Volume XVIII, Number 3, Fordham Journal of Corporate and Financal Law, includes articles by Dr. Markus Roth, Hilary J. Allen (Loyola NO), Benjamin D. Landry, Paul Rose (Ohio State) and Justin Schwartz.
Wednesday, October 9, 2013
South Texas Law Review will host its 20th Annual Ethics Symposium, Bankruptcy: Best Practices from the Bench and Bar, on October 25, 2013 at the Garrett Townes Auditorium on the South Texas College of Law campus in Houston.
Speakers include Hon. Jeff Bohm, Hon. Karen K. Brown, Hon. Marvin Isgur, Hon. David Jones and Hon. Letitia Z. Paul, all bankruptcy judges in the Southern District of Texas, plus several leading members of the Harris County bankruptcy bar. The full program is here.
Registration information is here (repaired link).
Tuesday, October 8, 2013
Gregory C. Sisk (St. Thomas MN) has posted, "Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity," on SSRN. This paper surveys recent Supreme Court cases which mark a shift in interpretive approach to statutory language waiving soverign immunity. On first review, this strikes me to be an important paper that thoroughly analysis recent developments in the Court's soverign immunity construction and jurisprudence. Here is the abstract:
The Government of the United States has long benefited from two canons of statutory construction that tip the scales of justice heavily in its direction in civil litigation by those seeking redress of harm by that government: First, the federal government’s consent to suit must be expressed through unequivocal statutory text. Second, even when a statute explicitly waives federal sovereign immunity for a subject matter, the traditional rule has been that the terms of that statute “must be construed strictly in favor of the sovereign.” The restrictive effect of these rules has made a distinct difference in cases that truly matter to the lives and well-being of ordinary people.
Since the dawn of the new century, however, the Supreme Court’s increasingly common encounters with waivers of federal sovereign immunity are also becoming more conventional in interpretive attitude. During the first eleven years of the twenty-first century, the Court turned a deaf ear to the government’s plea for special solicitude in the substantial majority of instances and frequently declared that the canon of strict construction was unhelpful or ill-suited. In four sovereign immunity cases decided in the 2012 Term, the Court continued to evidence a commitment to text, context, and legislative history, unblemished by any presumption of narrow construction. Notably during oral arguments in this most recent term, multiple members of the Court openly challenged the government’s reach for broader immunity.
In these recent decisions, the Court increasingly accepts a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted in application (with the canon of strict construction fading away as a viable tool for statutory interpretation).
This paper is shown to be accepted for publication by North Carolina Law Review.
The Iowa Law Review with the Innocence Project of Iowa and the University of Iowa Center for Human Rights will present Professor Jon Gould on "Predicting Wrongful Convictions" on October 10. The free lecture will be held in the Levitt Auditorium on the Iowa law school campus. Gould is a professor at the American Univesity's Department of Justice, Law & Society and Principal Investigator at the department's Preventing Wrongful Convictions Project. Professor Gould's article, which includes three co-authors, is scheduled to be published in an upcoming issue of the Iowa Law Review.