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In Conversation About the U.S. Holocaust Memorial Museum’s New Mass Atrocity Prevention Training
Get PDFWritten and Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals
No full textAlthough the thirteen United States Courts of Appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these Courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics, but by many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each Court of Appeals. In-depth interviews of the Chief Judges of all thirteen circuits and surveys of all Clerks of Court reveal previously undisclosed practices and customs.https://scholarship.law.duke.edu/faculty_books/1002/thumbnail.jp
The Brady Database
Get PDFThe Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations are intentional or accidental, and a host of related questions.
This Article fills a gap in the data and literature by analyzing five years of Brady claims—over 800 cases—raised in state and federal courts. We coded each case for more than forty variables to answer big-picture questions like how often Brady claims are successful and which courts are most likely to grant relief. We also studied more intricate questions such as the types of crimes and evidence at issue, whether judges deemed violations intentional or accidental, and whether judges chastised or disciplined prosecutors for failing to disclose evidence.
Our study revealed some important and surprising findings. Despite suggestions in some quarters that prosecutorial misconduct is not a major problem, courts found Brady violations in 10% of the cases in our study. Prosecutors, not police, were responsible for most violations and they were almost never referred to the Bar for discipline. While federal prosecutors are supposed to be elite highly trained lawyers, they were responsible for a disproportionate share of Brady violations. And while the federal courts are lauded as the protector of civil liberties, it was state courts that granted relief more frequently, often on direct review rather than in habeas corpus proceedings as scholars would have expected.
These findings and many others—such as petitioners having to wait on average ten years for relief for Brady violations—demonstrate that we continue to have egregious prosecutorial misconduct problems in the United States and that further study is needed. To that end, this project not only reports significant data, but also is the first step in the creation of a searchable database that we are creating to empower other researchers to further analyze how Brady claims are being litigated and adjudicated
Introducing Biosimilar Competition for Cell and Gene Therapy Products
Get PDFThis article provides an early analysis of the potential for creating future biosimilar competition for cell and gene therapies (CGTs) to lower prices and improve patient access, building on a unique set of interviews with relevant experts. Our discussion addressed regulatory, manufacturing, intellectual property, and market size challenges. Due to CGTs’ complexity, meeting the regulatory requirement of ‘high similarity with no clinically meaningful differences’ will be difficult. Gene therapies are likely better candidates for biosimilar development than cell therapies. Biosimilarity should be met when gene therapy biosimilars contain the same genetic sequence as a reference product, and the variability in the vector meets the high similarity standard. Manufacturing challenges, including the lack of standardized platforms, high production costs, and complexity, pose significant obstacles. It may also be important to demonstrate biosimilarity within the manufacturing process. Intellectual property barriers, specifically patenting, trade secrecy, and regulatory exclusivity, could hinder biosimilars’ ability to gain market share, although recent Supreme Court decisions limiting the breadth of patent claims could ease barriers to future CGT competition, including from biosimilars. Finally, inadequate market sizes might create hurdles, especially for curative treatments, as patient pools shrink following treatment by the reference CGT
Secrecy by Stipulation
Get PDFGM Ignition Switch. Dalkon Shield. Oxycontin. For decades, protective orders—court orders that require parties to maintain the confidentiality of information unearthed during discovery—have hid deadly defects and pervasive abuse from the public, perpetuating unnecessary harm.
But how worrisome are these protective orders, really? Under Rule 26(c)’s plain language, protective orders are to be granted only upon a showing of “good cause.” Doesn’t that adequately cabin the orders’ entry? Prominent judges and scholars have long insisted it does, and that, under Rule 26(c), the day-to-day grant of protective orders is careful, not cavalier. Critics disagree. They charge that parties frequently agree to sidestep Rule 26(c)’s “good cause” requirement and that judges, although formally duty bound to protect the public interest, uncritically acquiesce to parties’ demands. Worried about judicial rubber-stamping, some, in fact, have spent decades pushing to tighten Rule 26(c)’s standards—while others have, just as vigorously, opposed these efforts, insisting that the status quo works well enough.
This debate has raged since the late 1980s. But until now, it has mostly run aground on the shoals of basic, but unanswered, factual questions: Are stipulated protective orders really de rigueur? Are they becoming more prevalent? And are joint motions for protective orders actually meticulously scrutinized?
Using state-of-the-art machine learning techniques, this Article analyzes an original dataset of over 2.2 million federal cases to answer these persistent and profoundly important questions. Along the way, we find that stipulated protective orders are surprisingly prevalent. Grant rates for stipulated protective orders are sky high. And even though many insist that judges are scrupulous in the entry of such orders, over our entire study period, a majority of federal judges never rejected a joint protective order request.
We offer the first comprehensive accounting of stipulated protective orders in federal litigation. In so doing, we aim not only to revitalize—and discipline—the perennial and consequential debate surrounding Rule 26(c). We also offer a fortified empirical foundation on which to ground inquiry into broader questions, including the role of transparency and privacy in a system ostensibly committed to “open courts,” tort law’s vital information-forcing function, adversarialism as a procedural cornerstone of American litigation, and trial-court discretion and fidelity to higher law
Uncharted Waters: Should International Maritime Terrorism Be Included in the Jurisdiction of the International Criminal Court?
Get PDFThe International Criminal Court (ICC) lacks jurisdiction over international terrorism. Despite related academic literature, no academic publication discusses whether the ICC should have jurisdiction over international maritime terrorism. This deserves attention due to the increasing importance of this global phenomenon in the last few decades. Consequently, this Article considers whether international maritime terrorism should be included in the ICC’s jurisdiction. First, it discusses international maritime terrorism as a manifestation of the emerging international crime of international terrorism, examining i) whether there is an accepted or an emerging legal definition of international maritime terrorism, ii) whether international maritime terrorism is a serious threat to or attack against international peace and security, and iii) whether there is an emerging customary rule criminalizing international maritime terrorism. Then, the ICC law—particularly the Rome Statute, travaux préparatoires, and amendment proposals—and the ICC’s practice on crimes committed by international terrorist groups or involving serious threats to maritime security are examined to determine the feasibility, advisability, or even necessity to incorporate international maritime terrorism into the Rome Statute. Finally, this Article argues for incorporation based on three main normative grounds: i) better protection of the marine environment (environmental security); ii) contribution towards filling important jurisdictional gaps concerning maritime zones; and iii) contribution towards coherence across supranational courts on international maritime terrorism and maritime security
Legal Remedies to Collective Trauma in Northern Ireland
Get PDFHow can a country legally address collective trauma? Northern Ireland faced this daunting question in 1998, when the signing of the Good Friday Agreement heralded the end of decades of sectarian violence known as the Troubles. More than two decades later, the social and economic damage of the Troubles lingers. Years of piecemeal reconciliation efforts have proved controversial and yielded inconsistent results. The truth of the Troubles remains a divisive issue, and the question of how Northern Ireland can achieve lasting reconciliation still looms. This Note offers an up-to-date review of transitional justice efforts in Northern Ireland and the ongoing need for a legal remedy. It conducts an in-depth analysis of four legal strategies as applied to post-Troubles Northern Ireland – criminal prosecution, appeals to the European Court of Human Rights, public inquiries, and truth commissions. After evaluating the four strategies in both historical and social context, this Note makes the case that a truth commission, as a flexible and comprehensive transitional justice mechanism, is the legal remedy best suited to address the collective trauma of the Troubles
The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards for Refugees
Get PDFDeep, variegated, and unresolved tensions run between and within the U.S. courts of appeals’ standard of review classifications of the five core elements of the refugee definition. Several circuits have taken note of their dissonant jurisprudence, calling for either en banc or Supreme Court intervention. While existing scholarship raises cogent criticisms of excessive factual deference in U.S. immigration adjudications, very little attention has been paid to how the fact-law divide regarding the refugee definition maps onto review standards in the appellate context. This dearth of scholarly consideration is accompanied by the reality that standards of review often decide cases where the risk of erroneous denial involves the return of a putative refugee to persecution, torture, or death.
In this article, I provide the first comprehensive circuit-by-circuit study of each of the five core elements of the refugee definition to show the depth of disagreement related to standards of review. Notwithstanding the high stakes involved in reviewing asylum denials, and the inherent difficulty in obtaining remand when the deferential fact-based standard is applied, confusion prevails in how to catalog each discrete element. Given well-documented deficiencies in agency fact-finding, it is of paramount importance that asylum seekers receive nondeferential review of their case denials as capaciously as the law permits. Yet, my original research reveals that U.S. appellate courts often vacillate over how to treat each element, or misclassify as factual issues that are actually legal.
The present state of affairs is unacceptably incongruous with the humanitarian ethos undergirding asylum and refugee law. Courts must not forget what is at stake each time they wrongly deny a meritorious asylum application. It is in light of this toll paid when courts err, that I advance an approach that could harmonize the courts of appeals’ disparate case law. I posit that application of the plenary nondeferential, mixed-question standard of review—anchored in recent U.S. Supreme Court jurisprudence—offers a framework most likely to provide refugees with more searching review and thereby reduce the likelihood that bona fide claims are errantly rejected
Partisan Panel Composition and Reliance on Earlier Opinions in the Circuit Courts
Get PDFDoes the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard\u27s treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what one would expect from a panel with homogeneous partisanship? Finally, does the size of these potential partisan effects change over time in a way that would be consistent with partisan polarization on the courts? We find that partisanship does, in fact, structure whether earlier opinions are followed and that these partisan effects have grown over time—particularly within the subset of cases that we believe are most likely to be ideologically salient. Since legal doctrine is developed by building upon or diminishing past opinions, these results have important implications for our understanding of the development of the law