Thursday, March 19, 2015
Professor Mark Weber has just posted an interesting article on SSRN which will appear in Boston College Law Review. The abstract provides as follows:
American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent before they will remedy disability discrimination. These intent requirements have come into the law almost by accident: through a statutory analogy that appears apt but is in fact false; by continued repetition of language pulled from an obsolete judicial opinion; and by doctrine developed to avoid a conflict with another law when the conflict does not actually exist. Demanding that section 504 and Americans with Disabilities Act claimants show intentional discrimination imposes a burden found nowhere on the face of those statutes or their interpretive regulations.
This Article spells out the reasons not to impose any intent requirement either for liability or for monetary relief in section 504 and ADA cases concerning reasonable accommodations. It makes the uncontroversial point that no intent requirement applies to ADA employment cases, then explains that the same conclusion ought to apply to cases under the ADA’s state and local government provisions and section 504. It rebuts an analogy to caselaw under Title VI and Title IX of the Civil Rights Act that some courts use to support an intent requirement. It then identifies and corrects the reasoning of cases relying on the inappropriate analogy, those that rest on the obsolete precedent, and those that refuse to apply a full range of remedies for fear of conflict with the federal special education law.
This Article breaks new ground in the scholarly discussion of the disability discrimination laws by placing into context and critiquing the infiltration of intent requirements into cases brought under the provisions that bind state and local government and federal grantees. It relies on a contextual reading of the decisions of the Supreme Court, on the history of the ADA, and on policy considerations that ought to determine liability and remedies for unintentional disability discrimination.
The paper can be downloaded from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2579263
Mitchell H. Rubinstein
Tuesday, March 10, 2015
Recovery for emotional harm in tort is a dicey proposition for any plaintiff. Court traditionally have cast a sharp eye to these claims and have erected procedural and substantive barriers against recovery. The rationale supporting these barriers is that emotional injury is "less susceptible to objective medical proof" than is physical injury. The Restatement (Third) of Torts adopts these distinctions between physical and emotional harm by requiring emotional harm be "serious" before any recovery for emotional injury may be had.
These barriers to recovery act as a check against claim's perceived subjective nature and resistance to objective proof. In a recent article, however, Professor Betsy Grey (Arizona) argues that advances in neuroscience have blurred the lines between emotional and physical harm and render emotional harm objectively measurable, at least in some circumstances. The article is "The Future of Emotional Harm," forthcoming in Fordham Law Review. This is the abstract:
Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims—like evidence of physical harm—should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims.
This article article makes clear that expert testimony regarding neuroscience may soon be (or already is) coming to the civil courtrooms in the various states. Whether you agree, disagree or reserve judgement on her conclusions, Professor Grey's article represents a treasure trove of resources on these scientific advances and a good reference for lawyers, judges or students searching for a point of entry on the subject.
Wednesday, February 4, 2015
On February 6-7, the Denver Law Review is hosting a two-day symposium, "CrImmigration: Crossing the Border Between Criminal Law and Immigration Law." Registration information and the speaker's schedule is here.
Monday, January 26, 2015
Friday, December 19, 2014
The Virginia Law Review has published "Another Look at Professor Rodell's Goodbye to Law Reviews" by Judge Harry Edwards (D. C. Circuit) in its November 2014 issue. Michael Dorf (Cornell) added his thoughts here.
Thursday, November 13, 2014
Wednesday, November 5, 2014
Alexandra D. Lahav (Connecticut) has posted The Jury and Participatory Democracy at SSRN. The essay, a contribution to a symposium on the civil jury, has been published by William & Mary Law Review. The abstract:
Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.
Tuesday, November 4, 2014
The Connecticut Law Review will host its Fall Symposium on November 14, 2014, at the law school. The symposiuim is titled "The 50th Anniversary of Griswold v. Connecticut, Privacy Laws Today." The description reads:
Connecticut Law Review presents a symposium every fall to discuss an opportune topic of law. This year, the symposium will address the 50th anniversary of the Supreme Court's decision in Griswold v. Connecticut, exploring the history of the right of privacy through the present day. There will be three main topics discussed: the history of the right to privacy, privacy as sexual autonomy, and privacy as reproductive freedom. The keynote address will be provided by Professor Reva Siegel of Yale Law School.
The website says the symposium is free for those who RSVP by November 10.
Thursday, October 23, 2014
I have posted Effective Plea Bargains for Noncitizens on SSRN. Here is the abstract:
In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.
This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.
I presented this paper at an immigration law symposium hosted by The Scholar: St. Mary's Law Review on Race and Social Justice in April. The students and faculty hosting the event were top notch and I appreciated greatly the chance to meet and work with them all.
Friday, September 12, 2014
The Journal of Law and Health's Annual Symposium at Cleveland Marshall Law School has issued a call for papers which provides in part:
You are invited to submit an Article for possible inclusion in the Journal of Law & Health’s Annual Symposium: The Social, Ethical, and Legal Consequences of Sports-Related Brain Injuries. The Journal of Law & Health is a student-run publication dedicated to publishing innovative articles that offer diverse perspectives on the intersection between law, health, and medicine.
The selection of the Symposium topic was a result of the myriad of new research on the prevalence of traumatic brain injuries in sports and the long-term health consequences that result from head injuries. Further, high profile legal disputes, such as the NFL’s $765 million settlement with retired players, has thrust the discussion of brain injuries in sports into the legal arena as well. The Symposium aims to facilitate a well-rounded discussion between, judges, legislators, academics, and medical professional on the social, ethical, and legal issues that may occur as more research becomes available on brain injuries in sports.
Additional information and submission instructions can be found by clicking Download Call for Papers Final
Mitchell H. Rubinstein
Wednesday, July 2, 2014
Professor Bill Herbert (CUNY) writes to inform us of a call for papers by the National Center for the Study of Collective Bargaining in Higher Education. The conference will be held in April 2015. I have been to their conferences. It is one of the best interdisciplinary conferences. More details can be found in the announcement, here. Download Call For Papers and Proposed Workshops 2015 National Center Conference pdf
Mitchell H. Rubinstein
Tuesday, July 1, 2014
From the NKU Chase Law + Infomatics Institute website:
The Northern Kentucky Law Review and NKU Chase College of Law seek submissions for the fourth annual Law + Informatics Symposium on February 26-27, 2015. The conference will provide an interdisciplinary exploration of digital information in the courtroom, including the importance of insuring that such information is reliable, resilient, and uncompromised.
The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues regarding digital forensics and the rules of evidence and discovery in criminal and civil cases.
The full release is here.
Suggested topics include digital forensics, constitutional issues, digital evidence in the courtroom, international and comparative law, e-discovery and emerging issues. The most immediate deadline is September 1, 2014 for abstracts.
Wednesday, April 30, 2014
Tulsa Law Review has published its fourth issue dedicated to book reviews. The issue includes 25 book reviews. As far as I know, Tulsa is the one of just two student-edited law journal dedicating one issue each year to book reviews -- Michigan Law Review is the other (MLR's current book review issue is here). The book review has fallen into recent disfavor among student-edited journals, leading to commentary both in law reviews and in blogs. Tulsa Law Review is ably doing its part to stem or reverse this trend.
Acknowledgement: Daniella Citron (Maryland) at Concurring Opinions.
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.