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LAW (713 journals)                  1 2 3 4 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
ABA Journal Magazine     Full-text available via subscription   (Followers: 20)
Acta Juridica     Full-text available via subscription   (Followers: 9)
Acta Politica     Hybrid Journal   (Followers: 13)
Acta Universitatis Danubius. Juridica     Open Access  
Actualidad Jurídica Ambiental     Open Access   (Followers: 1)
Adelaide Law Review     Full-text available via subscription   (Followers: 20)
Administrative Law Review     Open Access   (Followers: 40)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 7)
African Journal of Legal Studies     Hybrid Journal   (Followers: 8)
African Journal on Conflict Resolution     Open Access   (Followers: 17)
Afrilex     Open Access   (Followers: 5)
Air and Space Law     Full-text available via subscription   (Followers: 20)
Akron Law Review     Open Access   (Followers: 4)
Alaska Law Review     Open Access   (Followers: 10)
Albany Law Review     Free   (Followers: 6)
Alberta Law Review     Full-text available via subscription   (Followers: 15)
Alternative Law Journal     Hybrid Journal   (Followers: 3)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 16)
Amazon's Research and Environmental Law     Open Access   (Followers: 3)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 56)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 17)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 13)
American Journal of Legal History     Full-text available via subscription   (Followers: 6)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 8)
American University Law Review     Open Access   (Followers: 16)
American University National Security Law Brief     Open Access   (Followers: 8)
Amicus Curiae     Open Access   (Followers: 5)
Amsterdam Law Forum     Open Access   (Followers: 9)
Anales de la Cátedra Francisco Suárez     Open Access  
Annales Canonici     Open Access  
Annual Survey of South African Law     Full-text available via subscription   (Followers: 5)
Anuario da Facultade de Dereito da Universidade da Coruña     Open Access  
Anuario de Psicología Jurídica     Open Access   (Followers: 1)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 4)
Appeal : Review of Current Law and Law Reform     Open Access   (Followers: 1)
Arbitration Law Monthly     Full-text available via subscription   (Followers: 2)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 13)
Arctic Review on Law and Politics     Open Access   (Followers: 1)
Arena Hukum     Open Access  
Argumenta Journal Law     Open Access   (Followers: 1)
Arizona Law Review     Open Access   (Followers: 4)
Arizona State Law Journal     Free   (Followers: 2)
Arkansas Law Review     Free   (Followers: 6)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 2)
Art + Law     Full-text available via subscription   (Followers: 11)
Article 40     Open Access   (Followers: 2)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 10)
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 5)
Asian Pacific American Law Journal     Open Access   (Followers: 2)
AStA Wirtschafts- und Sozialstatistisches Archiv     Hybrid Journal   (Followers: 5)
Asy-Syir'ah : Jurnal Ilmu Syari'ah dan Hukum     Open Access  
Australasian Law Management Journal     Full-text available via subscription   (Followers: 7)
Australian and New Zealand Sports Law Journal     Full-text available via subscription   (Followers: 8)
Australian Feminist Law Journal     Hybrid Journal   (Followers: 10)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 17)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 18)
Ave Maria Law Review     Free   (Followers: 3)
Badamai Law Journal     Open Access  
Ballot     Open Access  
Baltic Journal of Law & Politics     Open Access   (Followers: 7)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 5)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 24)
Beijing Law Review     Open Access   (Followers: 7)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 6)
Berkeley Technology Law Journal     Free   (Followers: 11)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
Bond Law Review     Open Access   (Followers: 18)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 8)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 10)
Boston College Law Review     Open Access   (Followers: 18)
Boston University Law Review     Free   (Followers: 11)
BRICS Law Journal     Open Access  
Brigham Young University Journal of Public Law     Open Access   (Followers: 8)
Brigham Young University Law Review     Full-text available via subscription   (Followers: 8)
British Journal of American Legal Studies     Open Access   (Followers: 1)
Brooklyn Law Review     Open Access   (Followers: 2)
Bulletin of Legal Medicine     Open Access   (Followers: 1)
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 3)
C@hiers du CRHIDI     Open Access  
Cadernos de Dereito Actual     Open Access   (Followers: 1)
Cadernos do Programa de Pós-Graduação em Direito - PPGDir./UFRGS     Open Access   (Followers: 1)
Cadernos Ibero-Americanos de Direito Sanitário     Open Access  
Cahiers, Droit, Sciences et Technologies     Open Access  
California Law Review     Open Access   (Followers: 20)
California Lawyer     Free  
California Western Law Review     Open Access   (Followers: 3)
Cambridge Law Journal     Hybrid Journal   (Followers: 152)
Campbell Law Review     Open Access   (Followers: 5)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Case Western Reserve Law Review     Open Access   (Followers: 2)
Časopis pro právní vědu a praxi     Open Access  
Časopis zdravotnického práva a bioetiky     Open Access  
Catalyst : A Social Justice Forum     Open Access   (Followers: 10)
Catholic University Law Review     Open Access   (Followers: 3)
Chicago-Kent Law Review     Full-text available via subscription   (Followers: 4)
Chicana/o-Latina/o Law Review     Open Access   (Followers: 2)
China : An International Journal     Full-text available via subscription   (Followers: 16)
China-EU Law Journal     Hybrid Journal   (Followers: 4)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 3)
Chinese Law & Government     Full-text available via subscription   (Followers: 6)
Cleveland State Law Review     Free   (Followers: 2)
College Athletics and The Law     Hybrid Journal   (Followers: 1)
Colombia Forense     Open Access  
Columbia Journal of Environmental Law     Free   (Followers: 9)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 16)
Columbia Law Review (Sidebar)     Open Access   (Followers: 16)
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 5)
Comparative Law Review     Open Access   (Followers: 42)
Comparative Legal History     Full-text available via subscription   (Followers: 7)
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 24)
Conflict Trends     Full-text available via subscription   (Followers: 9)
Cornell Law Review     Open Access   (Followers: 8)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 3)
Cuadernos de Historia del Derecho     Open Access   (Followers: 7)
Cuestiones Juridicas     Open Access   (Followers: 2)
Current Legal Problems     Hybrid Journal   (Followers: 26)
Danube : The Journal of European Association Comenius - EACO     Open Access   (Followers: 2)
De Jure     Open Access   (Followers: 1)
De Rebus     Full-text available via subscription   (Followers: 1)
Deakin Law Review     Full-text available via subscription   (Followers: 14)
Defense Counsel Journal     Full-text available via subscription   (Followers: 1)
Democrazia e diritto     Full-text available via subscription   (Followers: 2)
Denning Law Journal     Full-text available via subscription   (Followers: 8)
DePaul Journal of Women, Gender and the Law     Open Access   (Followers: 2)
DePaul Law Review     Open Access   (Followers: 3)
Der Staat     Full-text available via subscription   (Followers: 13)
Derecho PUCP     Open Access   (Followers: 4)
Derecho y Ciencias Sociales     Open Access   (Followers: 1)
Die Verwaltung     Full-text available via subscription   (Followers: 10)
Dikaion     Open Access   (Followers: 1)
Dike     Open Access  
Direito e Desenvolvimento     Open Access   (Followers: 1)
Direito e Liberdade     Open Access  
Diritto penale contemporaneo     Free   (Followers: 2)
Diritto, immigrazione e cittadinanza     Open Access   (Followers: 4)
Dixi     Open Access  
Droit et Cultures     Open Access   (Followers: 7)
Droit et Médecine Bucco-Dentaire     Full-text available via subscription   (Followers: 1)
Droit, Déontologie & Soin     Full-text available via subscription   (Followers: 2)
Drug Science, Policy and Law     Full-text available via subscription  
Duke Environmental Law & Policy Forum     Open Access   (Followers: 6)
Duke Forum for Law & Social Change     Open Access   (Followers: 8)
Duke Journal of Gender Law & Policy     Open Access   (Followers: 16)
Duke Law & Technology Review     Open Access   (Followers: 10)
Duke Law Journal     Open Access   (Followers: 26)
DULR Online     Open Access   (Followers: 1)
East Asia Law Review     Open Access   (Followers: 1)
ECI Interdisciplinary Journal for Legal and Social Policy     Open Access   (Followers: 2)
Ecology Law Quarterly     Free   (Followers: 3)
Edinburgh Law Review     Hybrid Journal   (Followers: 21)
Education and the Law     Hybrid Journal   (Followers: 11)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 23)
Energy Law Journal     Full-text available via subscription   (Followers: 4)
Environmental Justice     Hybrid Journal   (Followers: 10)
Environmental Law Review     Full-text available via subscription   (Followers: 22)
Environmental Policy and Law     Hybrid Journal   (Followers: 15)
ERA-Forum     Hybrid Journal   (Followers: 5)
Espaço Jurídico : Journal of Law     Open Access   (Followers: 1)
ESR Review : Economic and Social Rights in South Africa     Open Access   (Followers: 4)
Ethnopolitics     Hybrid Journal   (Followers: 4)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 4)
EU agrarian Law     Open Access   (Followers: 3)
Europaisches Journal fur Minderheitenfragen     Hybrid Journal   (Followers: 2)
European Energy and Environmental Law Review     Full-text available via subscription   (Followers: 16)
European Journal for Education Law and Policy     Hybrid Journal   (Followers: 8)
European Journal of Comparative Law and Governance     Hybrid Journal   (Followers: 5)
European Journal of Law and Technology     Open Access   (Followers: 15)
European Journal of Psychology Applied to Legal Context     Open Access   (Followers: 5)
European Law Journal     Hybrid Journal   (Followers: 144)
European Public Law     Full-text available via subscription   (Followers: 35)
European Review of Contract Law     Hybrid Journal   (Followers: 22)
European Review of Private Law     Full-text available via subscription   (Followers: 30)
European Yearbook of Minority Issues Online     Hybrid Journal   (Followers: 5)
Evaluation Review     Hybrid Journal   (Followers: 12)
Evidence & Policy : A Journal of Research, Debate and Practice     Full-text available via subscription   (Followers: 9)
Faulkner Law Review     Full-text available via subscription   (Followers: 1)
Federal Communication Law Journal     Full-text available via subscription   (Followers: 1)
Federal Law Review     Full-text available via subscription   (Followers: 22)
Federal Probation     Full-text available via subscription   (Followers: 2)
Feminist Legal Studies     Hybrid Journal   (Followers: 16)
feminists@law     Open Access   (Followers: 5)
Fiat Justisia     Open Access  
First Amendment Studies     Hybrid Journal  
Florida Bar News     Free  
Florida Law Review     Open Access   (Followers: 4)
Florida State University Law Review     Open Access   (Followers: 4)
Fordham Environmental Law Review     Open Access   (Followers: 4)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 18)
Fordham Law Review     Open Access   (Followers: 14)
FORO. Revista de Ciencias Jurídicas y Sociales, Nueva Época     Open Access   (Followers: 2)
Fundamina : A Journal of Legal History     Open Access   (Followers: 7)
Geoforum     Hybrid Journal   (Followers: 23)
George Washington Law Review     Free   (Followers: 8)
Georgia Law Review     Open Access   (Followers: 2)
Georgia State University Law Review     Open Access   (Followers: 2)
Global Journal of Comparative Law     Hybrid Journal   (Followers: 2)

        1 2 3 4 | Last

Journal Cover Fordham Law Review
  [SJR: 0.963]   [H-I: 22]   [14 followers]  Follow
    
  This is an Open Access Journal Open Access journal
   ISSN (Print) 0015-704X
   Published by Fordham University Homepage  [6 journals]
  • Jail Isolation After Kingsley: Abolishing Solitary Confinement at the
           Intersection of Pretrial Incarceration and Emerging Adulthood

    • Authors: Deema Nagib
      Abstract: In 2015, the U.S. Supreme Court held that allegations of excessive use of force in pretrial detention are subject to an objective standard. However, it is unclear whether the objective standard extends to claims arising out of different factual circumstances. The Second Circuit’s recent decision in Darnell v. Pineiro to extend Kingsley v. Hendrickson to conditions-of- confinement cases provides hope. This Note argues that Kingsley should extend to solitary confinement litigation—particularly the isolation of emerging adults in pretrial detention. Solitary confinement is a widespread practice in the criminal justice system, but the implications of its use in pretrial detention have not been fully explored. Since its inception, solitary confinement has demonstrated adverse psychological and physiological effects. Emerging adults are most likely to be exposed to the practice and are more vulnerable to its effects. Incarcerated emerging adults who are held awaiting trial already experience a significant disruption in their social and emotional development. This Note draws from psychological scholarship, arguing that isolating emerging adults in pretrial detention causes irreparable harm to their well-being—harm so severe that it amounts to unconstitutional punishment. Finally, this Note proposes a solution to this mass problem: abolishing solitary confinement for emerging adults who are incarcerated pretrial.
      PubDate: Tue, 05 Sep 2017 23:38:22 PDT
       
  • Leaders and Laggards: Tackling State Legislative Responses to the Youth
           Sports Concussion Epidemic

    • Authors: Chris Lau
      Abstract: In 2009, state legislatures began to enact concussion safety laws to protect youth athletes suffering from traumatic brain injuries sustained during the course of play. By 2014, all fifty states and the District of Columbia had enacted some form of youth sports concussion legislation. Yet these statutes vary widely across states in terms of the protections offered to youth athletes. This Note provides an analysis of state legislation by classifying all fifty-one statutes among distinct tiers ranging from least to most protective.
      PubDate: Tue, 05 Sep 2017 23:38:19 PDT
       
  • Paying Too Dearly for a Whistle: Properly Protecting Internal
           Whistleblowers

    • Authors: Leonardo Labriola
      Abstract: In light of substantial disagreement among the circuits on which types of whistleblowers Dodd-Frank intends to protect, and newly proposed legislation which suggests a solution, this Note inspects Dodd-Frank’s whistleblower protections in an effort to better explain which types of Business Organizations whistleblowers should and should not be protected. This Note briefly outlines the United States’s repeated history of increased regulation following financial crises, culminating in the Sarbanes-Oxley and Dodd-Frank Acts. It then describes the goals that motivated these acts and how whistleblowers play an outsized role in accomplishing those goals. It also examines the critical statute for Business Organizations whistleblower protection—Dodd-Frank’s section 922—and describes the SEC’s interpretation of that text. This Note then contrasts the competing interpretations of section 922 and compares the policy results of those interpretations. It also looks at how existing structures within the Securities and Exchange Commission and the protections from other related whistleblower regimes might inform DoddFrank’s protections. Finally, this Note proposes a cohesive solution that protects internal whistleblowers, respects Business Organizations decision making, and furthers Sarbanes-Oxley’s and Dodd-Frank’s goals.
      PubDate: Tue, 05 Sep 2017 23:38:17 PDT
       
  • Thinking Outside the Box: Reforming Commercial Discrimination Doctrine to
           Combat the Negative Consequences of Ban-the-Box Legislation

    • Authors: Nina Kucharczyk
      Abstract: This Note suggests a new approach to address the unintended consequences of ban-the-box legislation. The solution to combat unconscious discrimination during the hiring process is not to eliminate ban- the-box laws entirely; instead, lawmakers must modernize and strengthen Commercial discrimination doctrine to empower racial minorities who suspect discrimination and to ensure employers are critically analyzing their hiring processes.
      PubDate: Tue, 05 Sep 2017 23:38:14 PDT
       
  • (Beyond) Family Ties: Remote Tippees in a Post-Salman Era

    • Authors: Austin J. Green
      Abstract: In Salman v. United States, the U.S. Supreme Court reaffirmed Dirks v. SEC, holding that a personal benefit may be inferred where an insider discloses material nonpublic information to a “trading relative or friend.” While the decision was viewed as a win for prosecutors, the Court’s limited holding did little to address issues pertaining to more complex tipping chains, such as those raised by the Second Circuit’s decision in United States v. Newman two years prior. Particularly, a remote tippee cannot always determine whether material nonpublic information was improperly disclosed at the time of receipt. Such a remote tippee could not know whether trading on the tip is lawful without further investigation, and in the fast-paced securities industry, time is money. These scenarios also raise issues in the courtroom, where prosecutors must prove that the remote tippee knew, or should have known, the information was improperly disclosed at time of the trade, and the Supreme Court has rejected the notion that a remote tippee presumptively knows that material nonpublic information was improperly disclosed. In response to these lingering uncertainties, this Note proposes that the SEC adopt Rule 10b5-D, a safe harbor rule that would encourage disclosure and promote timely decision making without condoning insider trading.
      PubDate: Tue, 05 Sep 2017 23:38:11 PDT
       
  • Political Insider Trading

    • Authors: Michael R. Siebecker
      Abstract: A fiduciary breach due to secret use of Business Organizations assets for personal gain marks the essential concern in both the insider trading realm and in the context of Business Organizations political spending. Therefore, adopting a similar common law fiduciary rule that Business Organizations managers must disclose the amount and target of political expenditures or refrain from engaging in political activity does not seem like much of an intellectual leap. Not only would such a common law disclosure duty fit neatly within existing Business Organizations governance principles, but the compelled transparency would not offend corporations’ First Amendment rights. In the end, prohibiting political insider trading through a “disclose or abstain” rule for Business Organizations political spending would promote greater efficiency in the capital markets, ensure Business Organizations accountability and political legitimacy, and sustain the growing market for Business Organizations social responsibility.
      PubDate: Tue, 05 Sep 2017 23:38:08 PDT
       
  • Riding the Wave or Drowning': An Analysis of Gender Bias and
           Twombly/Iqbal in Title IX Accused Student Lawsuits

    • Authors: Bethany A. Corbin
      Abstract: This Article offers the first empirical analysis of dismissal trends in reverse Title IX cases and highlights that most courts erroneously dismiss these lawsuits at the 12(b)(6) stage. Through a misinterpretation of plausibility pleading, these courts hold that accused perpetrators have not shown causal evidence of discrimination at the outset of the lawsuit. This prodismissal approach, however, violates Swierkiewicz v. Sorema N.A.’s proclamation complaint. This Article proposes a more flexible causal pleading scheme that satisfies Twombly, Iqbal, and Swierkiewicz and ensures accused perpetrators receive their day in court. Alternatively, this Article argues for limited predismissal discovery in reverse Title IX suits where the court contends the causational element has been insufficiently pled.
      PubDate: Tue, 05 Sep 2017 23:38:06 PDT
       
  • Extending the Normativity of the Extended Family: Reflections on Moore v.
           City of East Cleveland

    • Authors: Angela Onwuachi-Willig
      Abstract: Part I of this Article briefly recounts the plurality decision in Moore before analyzing Justice Brennan’s concurring opinion and detailing how the concurrence affirms, rather than deconstructs, the notion of African American deviance in families. Next, Part II specifies the ways in which Justice Brennan could have truly uplifted African American families and other families of color by identifying and explicating the strengths of extended or multigenerational family forms among people of color and by showing how such family forms can be a model, or even the model (if one must be chosen), for all families. Then, Part III concludes by enumerating how Justice Brennan missed a key opportunity to explore and expose the intricacies and complications of both race and racial discrimination when he chose not to address the intraracial dynamics involved in the case. After all, the City of East Cleveland that targeted and prosecuted Inez Moore, the African American plaintiff in the case, was a majority-African-American city with an African American City Manager and African American City Commission. Such an exploration of the case’s intraracial undercurrents not only could have disrupted societal understandings of the nuclear family as the normative ideal but also would have laid bare the pressures that African Americans have faced, both in history and at that time, to conform to the nuclear family structure. Further, it would have revealed the internalization of myths about African American familial deviance by the black middle class in East Cleveland and would have shown the damaging consequences of such pressures and internalization.
      PubDate: Tue, 05 Sep 2017 23:38:03 PDT
       
  • Sharing a House but Not a Household: Extended Families and Exclusionary
           Zoning Forty Years After Moore

    • Authors: Solangel Maldonado
      Abstract: This Article proceeds in three parts. Part I briefly recounts the evolution of zoning laws and their effect on racial minorities. Next, Part II demonstrates how single-family zoning laws disproportionately exclude racial minorities from the most desirable blocks. Part II also examines how these laws economically and socially disadvantage minorities and hinder efforts to integrate neighborhoods and schools. Then, Part III uses Moore to explore potential solutions and concludes that, at minimum, zoning laws cannot exclude two-family homes that are occupied by extended family members. It also shows how Moore may support a more inclusionary approach to zoning.
      PubDate: Tue, 05 Sep 2017 23:38:00 PDT
       
  • Other Mothers

    • Authors: Kevin Maillard
      Abstract: There is a robust body of scholarship and jurisprudence addressing psychological parents, assisted reproductive technology, surrogacy, and same-sex parents, which reinforces the primacy of heterosexual marriage and procreation. This tradition suggests a vulnerability of parental status involving the other parent. Now that legal parenthood can be approached in a number of ways, it is time to take a critical look at the preeminence of motherhood and gestation in the determination of parental status and fitness.
      PubDate: Tue, 05 Sep 2017 23:37:57 PDT
       
  • Marriage Equality and Family Diversity: Comparative Perspectives from the
           United States and South Africa

    • Authors: Holning Lau
      Abstract: This Article proceeds in two parts. Part I examines the United States’s and South Africa’s competing approaches to same-sex marriage. Both countries’ highest courts ruled that excluding same-sex couples from marriage is unconstitutional, but they took divergent paths to reach that conclusion. This Article contends that the Constitutional Court of South Africa paved a better road for other countries to follow because it developed a superior conceptualization of the right to marry. Part II looks beyond same-sex marriage to explore new frontiers for reforming laws to address family diversity both in the United States and in South Africa. Specifically, Part II examines proposals to extend rights and responsibilities to couples who choose not to marry.
      PubDate: Tue, 05 Sep 2017 23:37:54 PDT
       
  • John Moore Jr.: Moore v. City of East Cleveland and
           Children’s Constitutional Arguments

    • Authors: Nancy E. Dowd
      Abstract: This Article is divided into three parts. First, I retell the story of Moore from John Jr.’s perspective and frame his potential claims. Second, I explore constitutional arguments under existing doctrine, using contemporary equal protection and substantive due process analyses. Finally, I suggest how a children’s rights perspective might be even more persuasive as a strategy for John Jr. as well as for achieving opportunity and equality on behalf of contemporary children living amid and affected by structural inequalities that impact their developmental capacity.
      PubDate: Tue, 05 Sep 2017 23:37:52 PDT
       
  • Moore’s Potential

    • Authors: June Carbone et al.
      Abstract: Part I of this Article briefly explores the culture wars that have consumed American politics since Moore. Part II discusses Moore’s uneasy position within the conception of family as a matter of choice versus tradition. Then, to the extent that the Moore Court addressed the changing family, Part III shows how it did so by treating the extended family as a manifestation of traditional family values, not the newly emerging substantive family values that valorize delay in childbearing and financial independence. Finally, Part IV considers Moore's missed opportunities to examine the relationship between family form, race, and class.
      PubDate: Tue, 05 Sep 2017 23:37:49 PDT
       
  • Reflections on the Challenge of Inez Moore: Family Integrity in the Wake
           of Mass Incarceration

    • Authors: Ann Cammett
      Abstract: The U.S. Supreme Court case Moore v. City of East Cleveland has long been celebrated as affirming constitutional rights related to family integrity. The Moore holding specifically confirmed the Court’s obligation to scrutinize housing ordinances that regulate a traditional family’s household composition. By comparison and extension, one might assume that alternative family formations would trigger similar scrutiny, but the Court has been loath to extend these protections. Apart from the Court’s failure to increase protections beyond traditional extended families, an interesting phenomenon has gone largely unexplored in this jurisprudential framework. In the wake of late twentieth-century mass incarceration, lawmakers and courts have failed to protect the rights of any family—traditional, extended, or otherwise—that is burdened by criminal justice involvement. Given the decision in Moore, this paradox is especially ironic and poignant with regard to challenges related to maintaining family integrity in the housing context.
      PubDate: Tue, 05 Sep 2017 23:37:46 PDT
       
  • Complex Kinship Networks in Fragile Families

    • Authors: Tonya L. Brito
      Abstract: This Article examines the complex kinship networks in families that experience multiple-partner fertility. Part I begins with a broad examination of the dramatic changes to the American family that have occurred over the past half century. Part I then highlights the broad diversity of forms present in today’s families, the evolving nature of American families, and how a two-tiered family system has emerged as patterns have diverged along class-based lines. Next, Part II turns to multiple-partner fertility, assessing what we know and do not know about this social phenomenon, including its prevalence, characteristics, and trends. Part III then addresses the implications of multiple-partner fertility for family law and policy. It also examines and critiques how the legal system treats family complexity in both the benefits and child support arenas. In concluding, Part III looks to the future; it presents ideas for ensuring that justice guides future policy developments in this area.
      PubDate: Tue, 05 Sep 2017 23:37:43 PDT
       
  • Introduction: Moore v. City of East Cleveland: How One Grandmother Helped
           a Nation Redefine Family

    • Authors: Anne Williams-Isom
      Abstract: When reviewing the Moore v. City of East Cleveland decision, it is impossible not to see one of the grandmothers that Harlem Children’s Zone (HCZ) routinely encounters in Inez Moore. While educating children is the primary focus of HCZ, working with the adults who bring those children through the doors is important to HCZ’s success. Miss Inez, as she would have been referred to by HCZ, illustrates the important role played by extended families in communities of color.
      PubDate: Tue, 05 Sep 2017 23:37:40 PDT
       
  • Foreword: Moore Kinship

    • Authors: R. A. Lenhardt et al.
      Abstract: Forty years ago, Mrs. Inez Moore, a widowed black mother and grandmother of little means, secured a victory that likely seemed improbable to many. Without any money, but with the assistance of a team of dedicated Legal Aid attorneys, she took her lawsuit challenging an East Cleveland, Ohio, zoning ordinance that made it a crime for her to live with her grandson all the way to the U.S. Supreme Court and won. The ordinance permitted certain extended family configurations to reside together within the city’s limits, but it prohibited Inez’s family arrangement. Just by bringing her infant grandson John Jr., upon his mother’s death, to live in the home in which she already resided with her son, Dale Sr., and his minor son, Dale Jr., Inez ran afoul of a housing code provision that local officials vigorously enforced. For her refusal to heed their demands that she basically evict John Jr. from the only home he had ever known, Inez faced not only a criminal fine but jail time as well.
      PubDate: Tue, 05 Sep 2017 23:37:37 PDT
       
  • Professor Emeritus Robert M. Byrn: A Remembrance

    • Authors: Joseph C. Sweeney
      Abstract: Robert M. Byrn, the Leonard F. Manning Distinguished Professor Emeritus of Fordham University School of Law, lost his long and painful battle with cancer on February 3, 2017, in his eighty-fifth year. His connections to Fordham encompassed the major part of his life. He received a B.S. from Fordham University College of Business Administration in 1953 and received a J.D. from Fordham University School of Law in 1959 after service with the U.S. Army in Korea in 1954–1955. As a law student, he served as an associate editor of the Fordham Law Review with the late Dean and Judge Joseph M. McLaughlin. After bar admission, he practiced law with the firm of Hughes, Hubbard & Reed in New York from 1959 to 1963. He returned to Fordham Law as an assistant professor in 1963 and was promoted to associate professor in 1966, professor of law in 1968, and Manning distinguished professor in 1988.
      PubDate: Tue, 05 Sep 2017 23:37:34 PDT
       
  • It’s Time for an Intervention!: Resolving the Conflict Between Rule
           24(a)(2) and Article III Standing

    • Authors: Gregory R. Manring
      Abstract: This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.
      PubDate: Tue, 05 Sep 2017 22:03:06 PDT
       
  • The Modern University Campus: An Unsafe Space for the Student Press'

    • Authors: Patrick Malone
      Abstract: This Note summarizes how courts have interpreted the First Amendment’s application to student publications on university campuses. It then considers the evolution of Title IX and how it has affected students’ First Amendment rights. Additionally, it acknowledges the interests at stake on the part of student publications and broader campus communities. Ultimately, this Note argues that the Department of Education should issue updated guidance that ensures adequate First Amendment protections for students and their publications. It also proposes steps that actors can take on university campuses to support this effort.
      PubDate: Tue, 05 Sep 2017 22:03:02 PDT
       
  • The Doxing Dilemma: Seeking a Remedy for the Malicious Publication of
           Personal Information

    • Authors: Julia M. MacAllister
      Abstract: In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent standard to make the federal Interstate Communications Statute more applicable to doxing and that states can and should criminalize malicious doxing.
      PubDate: Tue, 05 Sep 2017 22:02:58 PDT
       
  • Mens Rea and Methamphetamine: High Time for a Modern Doctrine
           Acknowledging the Neuroscience of Addiction

    • Authors: Meredith Cusick
      Abstract: Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important distinctions between the effects of acute intoxication and addiction. These findings have implications for the broader doctrine of mens rea and, specifically, the intoxication doctrines. This Note argues for the adoption of an addiction doctrine that acknowledges the effect of addiction on mens rea that is distinct from doctrines of intoxication.
      PubDate: Tue, 05 Sep 2017 22:02:55 PDT
       
  • The Fourth Amendment, CSLI Tracking, and the Mosaic Theory

    • Authors: Christian Bennardo
      Abstract: This Note explores the CSLI debate by analyzing the circuit courts’ decisions, scholars’ disagreement with those decisions, and the alternative approaches offered to protect and evaluate CSLI records. This Note concludes that warrantless CSLI monitoring should be analyzed under the “mosaic theory” of the Fourth Amendment. In support, it argues that this theory best addresses the concerns with CSLI tracking and proposes a standard that courts may use to apply it.
      PubDate: Tue, 05 Sep 2017 22:02:52 PDT
       
  • Erie Step Zero

    • Authors: Alexander A. Reinert
      Abstract: Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong. To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns about unequal treatment based on state citizenship and forum shopping figure most prominently. The first concern, while salient in any diversity of citizenship case, simply has no application in cases in which subject matter jurisdiction is founded upon “arising under” jurisdiction. And the second Erie-derived principle, avoiding forum shopping, while relevant to federal question cases, has a different federalism timbre in diversity cases. In diversity cases, forum shopping for certain substantive rules may deprive state courts of the opportunity to adjudicate claims that involve state law through and through. In jurisdiction founded on a federal question, by contrast, litigants are encouraged to resort to the uniformity, experience, and solicitude of federal courts; certain kinds of forum shopping are overtly welcomed, if not encouraged. Thus, this Article shows that Erie applies, but differently, in cases founded on federal question jurisdiction. In so doing, it provides a new framework—what I call, borrowing from administrative law scholarship, “Erie Step Zero”—for considering Erie questions in their properjurisdictional context, ensuring that federal law is not unnecessarily displaced by a reflexive application of Erie in any case in which a state law claim is presented.
      PubDate: Tue, 05 Sep 2017 22:02:48 PDT
       
  • Keeping Gideon’s Promise: Using Equal Protection to Address the Denial
           of Counsel in Misdemeanor Cases

    • Authors: Brandon Buskey et al.
      Abstract: The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the doctrinal and pragmatic problems created by the Court’s actual incarceration standard have advocated for various reforms to better protect people accused of misdemeanors, including redefinition or expansion of the right to counsel and legislative changes that would cut back on incarceration and allow states to better apportion their limited resources among defendants. This Article offers a novel perspective, grounded in due process and equal protection and a line of Supreme Court cases that guarantee equal access to the courts. Viewed in that light, indigent misdemeanor defendants denied counsel may not suffer from a Sixth Amendment violation under the law as it stands, but they are deprived of meaningful access to the courts on the basis of wealth. It suggests that reconceputalizing the plight of misdemeanor defendants through the lens of due process and equal protection may help to identify the most effective judicial and legislative solutions to the crisis of “assembly line justice.”
      PubDate: Tue, 05 Sep 2017 22:02:44 PDT
       
  • The Bellwether Settlement

    • Authors: Adam S. Zimmerman
      Abstract: This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.
      PubDate: Tue, 05 Sep 2017 22:02:41 PDT
       
  • Due Process Without Judicial Process': Antiadversarialism in American
           Legal Culture

    • Authors: Norman W. Spaulding
      Abstract: For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall media coverage of the more sensational of these will continue as well; Americans have a very long and deeply ingrained habit of treating trials as a form of public entertainment. But as a widespread legal and cultural practice—one that people experience as active participants, and one that plays a fundamental role in the administration of justice—jury trial is indeed vanishing.
      PubDate: Tue, 05 Sep 2017 22:02:38 PDT
       
  • Constraining Monitors

    • Authors: Veronica Root
      Abstract: Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III discusses implications of this Article’s findings. Specifically, it discusses concerns regarding the disclosure of information, the boundaries of the relationship between a monitor and other parties, and the ways a monitor’s identity might be utilized as a sanctioning mechanism. Monitors and those who utilize them confront these challenges every day without formal regulatory guidance.
      PubDate: Tue, 05 Sep 2017 22:02:34 PDT
       
  • What Does It Mean to Say That Procedure Is Political'

    • Authors: Dana S. Reda
      Abstract: Procedure is not the first field of law to face controversy along these lines. Law’s independence from politics, in both its descriptive and normative aspects, is a century long legal challenge.9 This Article aims to clarify what we mean when we characterize procedure as political, as well as to understand some of the harms generated by failing to confront and acknowledge the political. This is a preliminary step in approaching future formulations of procedural rules if they cannot be depoliticized.
      PubDate: Tue, 05 Sep 2017 22:02:31 PDT
       
  • Closure Provisions in MDL Settlements

    • Authors: D. Theodore Rave
      Abstract: Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead lawyers for the plaintiffs—at claimants’ expense. But closure strategies vary widely and operate on claimants in complex ways. This Article examines closure provisions in recent publicly available MDL settlements. It creates a taxonomy of closure strategies, exploring how they work to ensure claimant participation and how they affect claimant choice and welfare. And it closes with a call for MDL judges to take a more active role in supervising and evaluating the terms of global settlements in MDLs.
      PubDate: Tue, 05 Sep 2017 22:02:27 PDT
       
  • Restraining Lawyers: From “Cases” to “Tasks”

    • Authors: Morris A. Ratner
      Abstract: These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.
      PubDate: Tue, 05 Sep 2017 22:02:23 PDT
       
  • The Public Believes Predispute Binding Arbitration Clauses Are Unjust:
           Ethical Implications for Dispute-System Design in the Time of Vanishing
           Trials

    • Authors: Victor D. Quintanilla et al.
      Abstract: Drawing on these findings, we discuss the pressing need for a wider ethic that applies to transactional attorneys who design binding arbitration clauses within adhesion contracts. We also draw lessons from behavioral legal ethics and social psychology. These lessons reveal that this wider ethic may be endangered by the situational influences that currently operate within law firms (and in-house) due to these two intersecting patterns. We discuss ways of altering the regulatory environment to encourage the wider ethic to flourish.
      PubDate: Tue, 05 Sep 2017 22:02:20 PDT
       
  • Busting Up the Pretrial Industry

    • Authors: Andrew S. Pollis
      Abstract: While some argue that “[r]eturning to a trial model would be a significant step toward fulfilling the traditional expectations for the federal courts,” that step backward is unlikely to occur. But I agree that fixes are in order, and I offer two. First, we should consider requiring at least some parties to engage in early settlement evaluation—ideally before extensive discovery gets underway—by submitting cases to summary jury trials and imposing consequences on parties who choose to disregard the results. Second, we should allocate a greater percentage of judicial resources to discovery management through the routine appointment of special masters to curtail the discovery free-for-all. Neither fix is without its costs, but the costs are likely much lower than the costs of perpetuating the pretrial industry that currently drives civil litigation in the United States.
      PubDate: Tue, 05 Sep 2017 22:02:17 PDT
       
  • Fairness Beyond the Adversary System: Procedural Justice Norms for Legal
           Negotiation

    • Authors: Rebecca Holland-Blumoff
      Abstract: Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.
      PubDate: Tue, 05 Sep 2017 22:02:13 PDT
       
  • Demosprudence on Trial: Ethics for Movement Lawyers, in Ferguson and
           Beyond

    • Authors: Justin Hansford
      Abstract: This Article suggests that although civil litigation remains a viable tool, the vanishing trial has limited impact on movement lawyers because we can use the law to promote social change outside of the courtroom. The demosprudence framework helps us to understand this process. By applying this framework to the movement lawyering context, movement lawyers can adapt to the void in voice created by the vanishing trial in civil litigation and still help the movement.
      PubDate: Tue, 05 Sep 2017 22:02:09 PDT
       
  • A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal
           Malpractice Victims

    • Authors: Susan S. Fortney
      Abstract: Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide them access to meaningful redress.
      PubDate: Tue, 05 Sep 2017 22:02:07 PDT
       
  • Settlement in the Absence of Anticipated Adjudication

    • Authors: Howard M. Erichson
      Abstract: This Article begins with an account of the lawyer’s role in settlement in what we might call the traditional litigation scenario—that is, litigation in which settlement negotiations are conducted in the shadow of anticipated adjudication. This Article then considers four scenarios in which the anticipation of adjudication is altered—resource inadequacy, judicial settlement pressure, lengthy calendar, and class actions not certified for litigation—and asks what effect we should expect each scenario to have on the interests of lawyers and clients regarding settlement. The final part asks what light this analysis sheds on the phenomenon of vanishing trials and concludes with a comment on the importance of anticipated adjudication to achieving justice in litigation settlements.
      PubDate: Tue, 05 Sep 2017 22:02:03 PDT
       
  • Rethinking the Foundational Critiques of Lawyers in Social Movements

    • Authors: Scott L. Cummings
      Abstract: This Article argues that the current moment invites reconsideration of these critiques. The rise of new social movements—from marriage equality to Black Lives Matter to the recent mobilization against President Trump’s immigration order—and the response of a new generation of movement lawyers eager to lend support has refocused attention on the appropriate role that lawyers should play in advancing progressive social change. Rather than fall back on familiar critical themes, the time is ripe for developing a new affirmative vision.
      PubDate: Tue, 05 Sep 2017 22:01:59 PDT
       
  • Civil Trials: A Film Illusion'

    • Authors: Taunya L. Banks
      Abstract: As Judge Elrod’s comments suggest, the most well-known courtroom film classics, like 12 Angry Men, Anatomy of a Murder, or Witness for the Prosecution are about criminal trials. This fact may be unimportant because the distinction between criminal and civil trial films often is lost on the general public. Unanswered is whether the distinction between criminal and civil trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular. This question is the focus of this Article.
      PubDate: Tue, 05 Sep 2017 22:01:56 PDT
       
  • Mass Torts and the Pursuit of Ethical Finality

    • Authors: Lynn A. Baker
      Abstract: Judges, lawyers, and academics largely agree that comprehensive finality is a central goal of mass tort litigation and settlements. More controversial is whether such finality is normatively preferable, inherently ethically problematic, or can be achieved through nonclass aggregate settlements without running afoul of the existing ethics rules. This Article joins this important debate.
      PubDate: Tue, 05 Sep 2017 22:01:52 PDT
       
  • Lawyers' Ethics Beyond the Vanishing Trial: Unrepresented Claimaints,
           De Facto Aggregations, Arbitration Mandates, and Privatized Processes

    • Authors: Judith Resnik
      Abstract: Trials are a vivid variable in the world of litigation, as reflected in the title of this colloquium, Civil Litigation Ethics at a Time of Vanishing Trials. The conveners have wisely drawn attention to the disjuncture between legal ethics and today’s litigation world. In this Introduction, I argue that the challenges for lawyers loom larger than those reflected in the declining rate of trials. More facets of contemporary dispute resolution need to be engaged when contemplating the topics and roles that legal ethics need to address in the decades to come.
      PubDate: Tue, 05 Sep 2017 22:01:48 PDT
       
  • It’s Time for an Intervention!: Resolving the Conflict Between Rule
           24(a)(2) and Article III Standing

    • Authors: Gregory R. Manring
      Abstract: This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.
      PubDate: Tue, 05 Sep 2017 22:01:45 PDT
       
  • The Modern University Campus: An Unsafe Space for the Student Press'

    • Authors: Patrick Malone
      Abstract: This Note summarizes how courts have interpreted the First Amendment’s application to student publications on university campuses. It then considers the evolution of Title IX and how it has affected students’ First Amendment rights. Additionally, it acknowledges the interests at stake on the part of student publications and broader campus communities. Ultimately, this Note argues that the Department of Education should issue updated guidance that ensures adequate First Amendment protections for students and their publications. It also proposes steps that actors can take on university campuses to support this effort.
      PubDate: Tue, 05 Sep 2017 22:01:42 PDT
       
  • The Doxing Dilemma: Seeking a Remedy for the Malicious Publication of
           Personal Information

    • Authors: Julia M. MacAllister
      Abstract: In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent standard to make the federal Interstate Communications Statute more applicable to doxing and that states can and should criminalize malicious doxing.
      PubDate: Tue, 05 Sep 2017 22:01:39 PDT
       
  • Mens Rea and Methamphetamine: High Time for a Modern Doctrine
           Acknowledging the Neuroscience of Addiction

    • Authors: Meredith Cusick
      Abstract: Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important distinctions between the effects of acute intoxication and addiction. These findings have implications for the broader doctrine of mens rea and, specifically, the intoxication doctrines. This Note argues for the adoption of an addiction doctrine that acknowledges the effect of addiction on mens rea that is distinct from doctrines of intoxication.
      PubDate: Tue, 05 Sep 2017 22:01:36 PDT
       
  • The Fourth Amendment, CSLI Tracking, and the Mosaic Theory

    • Authors: Christian Bennardo
      Abstract: This Note explores the CSLI debate by analyzing the circuit courts’ decisions, scholars’ disagreement with those decisions, and the alternative approaches offered to protect and evaluate CSLI records. This Note concludes that warrantless CSLI monitoring should be analyzed under the “mosaic theory” of the Fourth Amendment. In support, it argues that this theory best addresses the concerns with CSLI tracking and proposes a standard that courts may use to apply it.
      PubDate: Tue, 05 Sep 2017 22:01:32 PDT
       
  • Erie Step Zero

    • Authors: Alexander A. Reinert
      Abstract: Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong. To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns about unequal treatment based on state citizenship and forum shopping figure most prominently. The first concern, while salient in any diversity of citizenship case, simply has no application in cases in which subject matter jurisdiction is founded upon “arising under” jurisdiction. And the second Erie-derived principle, avoiding forum shopping, while relevant to federal question cases, has a different federalism timbre in diversity cases. In diversity cases, forum shopping for certain substantive rules may deprive state courts of the opportunity to adjudicate claims that involve state law through and through. In jurisdiction founded on a federal question, by contrast, litigants are encouraged to resort to the uniformity, experience, and solicitude of federal courts; certain kinds of forum shopping are overtly welcomed, if not encouraged. Thus, this Article shows that Erie applies, but differently, in cases founded on federal question jurisdiction. In so doing, it provides a new framework—what I call, borrowing from administrative law scholarship, “Erie Step Zero”—for considering Erie questions in their properjurisdictional context, ensuring that federal law is not unnecessarily displaced by a reflexive application of Erie in any case in which a state law claim is presented.
      PubDate: Tue, 05 Sep 2017 22:01:29 PDT
       
  • Keeping Gideon’s Promise: Using Equal Protection to Address the Denial
           of Counsel in Misdemeanor Cases

    • Authors: Brandon Buskey et al.
      Abstract: The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the doctrinal and pragmatic problems created by the Court’s actual incarceration standard have advocated for various reforms to better protect people accused of misdemeanors, including redefinition or expansion of the right to counsel and legislative changes that would cut back on incarceration and allow states to better apportion their limited resources among defendants. This Article offers a novel perspective, grounded in due process and equal protection and a line of Supreme Court cases that guarantee equal access to the courts. Viewed in that light, indigent misdemeanor defendants denied counsel may not suffer from a Sixth Amendment violation under the law as it stands, but they are deprived of meaningful access to the courts on the basis of wealth. It suggests that reconceputalizing the plight of misdemeanor defendants through the lens of due process and equal protection may help to identify the most effective judicial and legislative solutions to the crisis of “assembly line justice.”
      PubDate: Tue, 05 Sep 2017 22:01:25 PDT
       
  • The Bellwether Settlement

    • Authors: Adam S. Zimmerman
      Abstract: This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.
      PubDate: Tue, 05 Sep 2017 22:01:21 PDT
       
  • Due Process Without Judicial Process': Antiadversarialism in American
           Legal Culture

    • Authors: Norman W. Spaulding
      Abstract: For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall media coverage of the more sensational of these will continue as well; Americans have a very long and deeply ingrained habit of treating trials as a form of public entertainment. But as a widespread legal and cultural practice—one that people experience as active participants, and one that plays a fundamental role in the administration of justice—jury trial is indeed vanishing.
      PubDate: Tue, 05 Sep 2017 22:01:18 PDT
       
  • Constraining Monitors

    • Authors: Veronica Root
      Abstract: Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III discusses implications of this Article’s findings. Specifically, it discusses concerns regarding the disclosure of information, the boundaries of the relationship between a monitor and other parties, and the ways a monitor’s identity might be utilized as a sanctioning mechanism. Monitors and those who utilize them confront these challenges every day without formal regulatory guidance.
      PubDate: Tue, 05 Sep 2017 22:01:15 PDT
       
  • What Does It Mean to Say That Procedure Is Political'

    • Authors: Dana S. Reda
      Abstract: Procedure is not the first field of law to face controversy along these lines. Law’s independence from politics, in both its descriptive and normative aspects, is a century long legal challenge.9 This Article aims to clarify what we mean when we characterize procedure as political, as well as to understand some of the harms generated by failing to confront and acknowledge the political. This is a preliminary step in approaching future formulations of procedural rules if they cannot be depoliticized.
      PubDate: Tue, 05 Sep 2017 22:01:11 PDT
       
  • Closure Provisions in MDL Settlements

    • Authors: D. Theodore Rave
      Abstract: Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead lawyers for the plaintiffs—at claimants’ expense. But closure strategies vary widely and operate on claimants in complex ways. This Article examines closure provisions in recent publicly available MDL settlements. It creates a taxonomy of closure strategies, exploring how they work to ensure claimant participation and how they affect claimant choice and welfare. And it closes with a call for MDL judges to take a more active role in supervising and evaluating the terms of global settlements in MDLs.
      PubDate: Tue, 05 Sep 2017 22:01:07 PDT
       
  • Restraining Lawyers: From “Cases” to “Tasks”

    • Authors: Morris A. Ratner
      Abstract: These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.
      PubDate: Tue, 05 Sep 2017 22:01:04 PDT
       
  • The Public Believes Predispute Binding Arbitration Clauses Are Unjust:
           Ethical Implications for Dispute-System Design in the Time of Vanishing
           Trials

    • Authors: Victor D. Quintanilla et al.
      Abstract: Drawing on these findings, we discuss the pressing need for a wider ethic that applies to transactional attorneys who design binding arbitration clauses within adhesion contracts. We also draw lessons from behavioral legal ethics and social psychology. These lessons reveal that this wider ethic may be endangered by the situational influences that currently operate within law firms (and in-house) due to these two intersecting patterns. We discuss ways of altering the regulatory environment to encourage the wider ethic to flourish.
      PubDate: Tue, 05 Sep 2017 22:01:00 PDT
       
  • Busting Up the Pretrial Industry

    • Authors: Andrew S. Pollis
      Abstract: While some argue that “[r]eturning to a trial model would be a significant step toward fulfilling the traditional expectations for the federal courts,” that step backward is unlikely to occur. But I agree that fixes are in order, and I offer two. First, we should consider requiring at least some parties to engage in early settlement evaluation—ideally before extensive discovery gets underway—by submitting cases to summary jury trials and imposing consequences on parties who choose to disregard the results. Second, we should allocate a greater percentage of judicial resources to discovery management through the routine appointment of special masters to curtail the discovery free-for-all. Neither fix is without its costs, but the costs are likely much lower than the costs of perpetuating the pretrial industry that currently drives civil litigation in the United States.
      PubDate: Tue, 05 Sep 2017 22:00:57 PDT
       
  • Fairness Beyond the Adversary System: Procedural Justice Norms for Legal
           Negotiation

    • Authors: Rebecca Holland-Blumoff
      Abstract: Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.
      PubDate: Tue, 05 Sep 2017 22:00:53 PDT
       
  • Demosprudence on Trial: Ethics for Movement Lawyers, in Ferguson and
           Beyond

    • Authors: Justin Hansford
      Abstract: This Article suggests that although civil litigation remains a viable tool, the vanishing trial has limited impact on movement lawyers because we can use the law to promote social change outside of the courtroom. The demosprudence framework helps us to understand this process. By applying this framework to the movement lawyering context, movement lawyers can adapt to the void in voice created by the vanishing trial in civil litigation and still help the movement.
      PubDate: Tue, 05 Sep 2017 22:00:50 PDT
       
  • A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal
           Malpractice Victims

    • Authors: Susan S. Fortney
      Abstract: Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide them access to meaningful redress.
      PubDate: Tue, 05 Sep 2017 22:00:47 PDT
       
  • Settlement in the Absence of Anticipated Adjudication

    • Authors: Howard M. Erichson
      Abstract: This Article begins with an account of the lawyer’s role in settlement in what we might call the traditional litigation scenario—that is, litigation in which settlement negotiations are conducted in the shadow of anticipated adjudication. This Article then considers four scenarios in which the anticipation of adjudication is altered—resource inadequacy, judicial settlement pressure, lengthy calendar, and class actions not certified for litigation—and asks what effect we should expect each scenario to have on the interests of lawyers and clients regarding settlement. The final part asks what light this analysis sheds on the phenomenon of vanishing trials and concludes with a comment on the importance of anticipated adjudication to achieving justice in litigation settlements.
      PubDate: Tue, 05 Sep 2017 22:00:43 PDT
       
  • Rethinking the Foundational Critiques of Lawyers in Social Movements

    • Authors: Scott L. Cummings
      Abstract: This Article argues that the current moment invites reconsideration of these critiques. The rise of new social movements—from marriage equality to Black Lives Matter to the recent mobilization against President Trump’s immigration order—and the response of a new generation of movement lawyers eager to lend support has refocused attention on the appropriate role that lawyers should play in advancing progressive social change. Rather than fall back on familiar critical themes, the time is ripe for developing a new affirmative vision.
      PubDate: Tue, 05 Sep 2017 22:00:40 PDT
       
  • Civil Trials: A Film Illusion'

    • Authors: Taunya L. Banks
      Abstract: As Judge Elrod’s comments suggest, the most well-known courtroom film classics, like 12 Angry Men, Anatomy of a Murder, or Witness for the Prosecution are about criminal trials. This fact may be unimportant because the distinction between criminal and civil trial films often is lost on the general public. Unanswered is whether the distinction between criminal and civil trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular. This question is the focus of this Article.
      PubDate: Tue, 05 Sep 2017 22:00:36 PDT
       
  • Mass Torts and the Pursuit of Ethical Finality

    • Authors: Lynn A. Baker
      Abstract: Judges, lawyers, and academics largely agree that comprehensive finality is a central goal of mass tort litigation and settlements. More controversial is whether such finality is normatively preferable, inherently ethically problematic, or can be achieved through nonclass aggregate settlements without running afoul of the existing ethics rules. This Article joins this important debate.
      PubDate: Tue, 05 Sep 2017 22:00:31 PDT
       
  • Lawyers' Ethics Beyond the Vanishing Trial: Unrepresented Claimaints,
           De Facto Aggregations, Arbitration Mandates, and Privatized Processes

    • Authors: Judith Resnik
      Abstract: Trials are a vivid variable in the world of litigation, as reflected in the title of this colloquium, Civil Litigation Ethics at a Time of Vanishing Trials. The conveners have wisely drawn attention to the disjuncture between legal ethics and today’s litigation world. In this Introduction, I argue that the challenges for lawyers loom larger than those reflected in the declining rate of trials. More facets of contemporary dispute resolution need to be engaged when contemplating the topics and roles that legal ethics need to address in the decades to come.
      PubDate: Tue, 05 Sep 2017 22:00:28 PDT
       
 
 
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