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The Pretrial Conference, Pretrial Hearing, Final Pretrial Conference, and Pretrial Disposition
No full textThis chapter details the workings of the pretrial conference, pretrial hearing, and final pretrial conference, as well as the resolution of criminal cases short of trial and challenges to sentences imposed as a result of those dispositions
Dissent: Not Popular Enough
No full textThe draft constitution does a nice job of reducing existing institutional obstacles to effective government. Yet there is one persistent manner in which the draft repeats the Framers’ error and, indeed, doubles down on it: by replicating the elitist part of the republican tradition at the expense of the plebeian one. In that sense, the proposal doesn’t do nearly enough to rebuild the frayed bonds between citizen and government. More effective policymaking is the technocrat’s solution, but multiple methods of exercising power is the populist’s response to a metastasizing sense of dislocation
Classrooms into Courtrooms
Get PDFThe federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because DOE linked the changes with tenets of rape exceptionalism, which has historically burdened women alleging rape, notably those with marginalized identities. As a result, the 2020 Rule requires schools to treat survivors of sexual assault, who are disproportionately women, LQBTQIA+, BIPOC, or a combination, differently than those who report discrimination based on other protected identities, such as race. While Obama-era guidance sought to effectuate Title IX’s equality aim by mandating that schools make significant changes to redress a history of limited Title IX enforcement and to align Title IX with classic models of civil rights implementation, DOE’s 2020 Rule swung the pendulum far in the opposite direction, creating a very different mandatory system for schools that is unfairly balanced in favor of respondents. This pattern of shifting obligations for schools will continue until a concerted effort is made to return to what Title IX stands for at its base—equal access to education for all students. The Office for Civil Rights and schools must refocus and recenter on Title IX’s promise of ensuring equal education based on sex, especially in light of the 2020 Rule. In this Article I argue that Title IX enforcement must: (1) start viewing schools as educational institutions, not courts of law, and (2) incorporate an intersectional approach throughout all aspects of its implementation. Creating a Title IX that works means studying and developing policies and procedures that incorporate intersectionality; it means aligning with general civil rights law implementation; and fundamentally, it means bringing the pendulum to rest
Legislative Scrutiny in the United States: Dynamic, Whole-stream Revision
No full textLegislative drafting in the United States Congress is a dynamic process with many actors working to revise both a bill’s policy and language. Rather than a central drafting office or government agency responsible for drafting bills, legislative language and amendments come from many sources: Congressional committee staff, the House and Senate Offices of Legislative Counsel, special interest lobbyists, and executive agencies. The hope is that bills become stronger and better drafted as it moves through the process; but that is not always the case. In addition, Congress still does not use a single standard drafting style. Still, there have been improvements in recent decades. For example, the House of Representatives developed a preferred drafting style and created a manual to guide drafters. However, Congress can and should do more to improve legislative quality. In this article I suggest several reforms: empowering the committee chairs to not just guide legislation through Congress, but promote better quality legislation; requiring greater drafting style standardisation; creating new materials and trainings to assist legislative actors, particularly committee staff, to recognise defective drafting and appreciate the value of careful drafting practices; and creating a advisory commission that will bring together key drafting participants to propose further reforms
Antibacterial R & D at a crossroads: We\u27ve pushed as hard as we can...now we need to start pulling!
No full textIn this issue of Clinical Infectious Diseases, Dheman et al [1] present an analysis by experts at the US Food and Drug Administration (FDA) of trends in antibacterial clinical development over the past 4 decades. By turns instructive and disturbing, this 40-year perspective provides insight into the impact of efforts to restore the antibacterial pipeline.
As a preview, the key messages from Dheman et al are all bad news for public health: (1) the number of new antibacterials in clinical development is (again) falling, (2) the risk of failure is rising, (3) the speed of clinical development is slowing, and (4) most large companies with the capability to market agents on a global scale have exited clinical development. Several factors have led to this state of play, as follows
Labor Law: Selected Statutes, Forms, and Agreements, 2021
No full textIdeal for use with the authors’ own casebook, Labor Law: Cases and Materials, or any other coursebook for the Labor Law course, this supplement offers a full complement of up-to-date source material, forms, and examples of current collective bargaining agreements.
Features of this supplement include: The full text of the National Labor Relations Act, Labor Management Relations Act, Labor-Management Reporting and Disclosure Act, Railway Labor Act, and Norris-LaGuardia Act Selected provisions from other statutes such as the Sherman Act, Clayton Act, Federal Arbitration Act, and U.S. Bankruptcy Code Selected forms of the National Labor Relations Board and National Mediation Board Selected text from the National Agreement Between General Electric and IUE-CWA (2011-2015) Selected text from the Collective Bargaining Agreement Between Hotel Association of New York City, Inc. and New York Hotel and Motel Trades Council, AFL-CIO (2012- 2019) The full text of the proposed Protecting the Right to Organize Act of 2021
New to the 2021 Edition: The full text of the Collective Bargaining Agreement Between Hotel Association of New York City, Inc. and New York Hotel and Motel Trades Council, AFL-CIO (2012- 2019) The full text of the proposed Protecting the Right to Organize Act of 2019https://scholarship.law.bu.edu/books/1324/thumbnail.jp
The (Joseph) Stories of Newmyer and Cover: Hero Or Tragedy?
Get PDFKent Newmyer\u27s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer\u27s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer\u27s Story is fundamentally important for students of American history. But in Robert Cover\u27s account in Justice Accused on northern judges\u27 deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. This Essay suggests that Story missed vital opportunities to write a judicial opinion more forcefully recognizing the rights offugitive slaves under the Fifth Amendment\u27s due process clause, a preview of Dred Scott but in reverse.
One can find a balance between Newmyer\u27s empathetic charity and Cover\u27s non-empathetic clarity, to see the value of the rule of law through both interpretations. Thus, they both teach us about law, leadership, and life
Federal Rules of Platform Procedure
Get PDFTech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person\u27s public image and another\u27s profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, must by federal law provide timely notice, a reasonable investigation, and other procedural minimums. In contrast, platforms have almost unfettered discretion. Under intense public pressure, Facebook recently began building an independent oversight board that can overrule content moderation decisions. But whether other platforms will follow is unclear, and Facebook\u27s oversight board has significant limits. If the largest platforms face limited competition while serving as the primary arbiters of disputes in the information age, they warrant mandated procedures as did financial institutions before them. The procedures would aim to improve the administration of justice through public accountability and separation of at least one of platforms\u27 executive, legislative, and judicial powers
The Jury Trial Reinvented
Get PDFThe Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood./= / \u3e/= / \u3eDespite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin using technology to transcend time-and-place limitations. These reforms inspire more profound changes./= / \u3e/= / \u3eRather than abolishing or cabining the jury trial, it should be reinvented with the benefit of modern science and technology. Features to be reconsidered include having local juries even for national civil cases, using unrepresentative groups of only six to twelve jurors, allowing attorneys to arbitrarily exclude jurors during voir dire, having synchronous and chronological presentations of cases over days or weeks, asking jurors to ignore inadmissible evidence and arguments that arise during live trials, and relying on secretive deliberations infected by implicit bias./= / \u3e/= / \u3eSeveral of these extant practices work to disenfranchise or disempower Americans along racial, gender, and economic lines, thereby undermining one of the jury’s core functions. Other features cause jurors to err in resolving cases accurately, which can sometimes mean the difference between life and death. A reinvented, modernized jury institution can better serve its purposes by increasing citizen engagement, better fostering civic education and democratic deliberation, improving accuracy