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Cash Rules Everything Around the Money Bail System: The Effect of Cash-Only Bail on Indigent Defendants in America\u27s Money Bail System
Get PDFStudent Publication: Undocumented, Untreated, Unhealthy: How the Expansion of FQHCs Can Fill the Gaps of Basic Healthcare for Undocumented Immigrants
Get PDFCombating Judicial Misconduct: A Stoic Approach
Get PDFJudicial ethics rules require criminal court judges to be competent, even-tempered, and impartial. In reality, however, many judges are grossly ignorant of the law, incredibly hostile toward the defense, and outright biased in favor of the state. Such acts of judicial misconduct pose serious problems for the criminal defense lawyer and violate many of the defendant’s statutory and constitutional rights.
This Article presents a framework for the defense lawyer to use in combating judicial misconduct. The approach is rooted in a principle of Stoic philosophy called “negative visualization.” That is, the lawyer should anticipate and visualize judicial incompetence, hostility, and bias within the context of the client’s case. This Stoic practice has two primary benefits.
First, by envisioning such problems before they occur, the defense lawyer may be able to prevent some of them from happening in the first place. Toward that end, this Article identifies several preemptive legal strategies to prevent the unethical judge from infecting the client’s case.
Second, envisioning acts of judicial ignorance, hostility, and bias before they occur will render them less of a shock when they do occur in the middle of trial, in front of the jury, and in a full courtroom. This, in turn, allows the defense lawyer to remain calm in the face of adversity and formulate an effective response to protect the client. Toward that end, this Article identifies several responsive legal strategies for the lawyer to use when confronted with judicial misconduct in the courtroom.
The criminal defense lawyer who steps into the courtroom naively assuming the trial judge will perform and behave ethically does his or her client a tremendous disservice. On the other hand, the defense lawyer who anticipates and prepares for judicial incompetence, aggression, and bias will be in a better position to protect the defendant’s important statutory and constitutional rights
An Empirical Examination of Agency Statutory Interpretation
Get PDFHow do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over time. Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history. Moreover, despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes. The balance required—between policy coherence, stability and democratic accountability—is fundamentally different in the context of agency statutory interpretation than for interpretation by a judicial body. Rather than acting like a court, adjudicative agencies like the NLRB should leverage their expertise to arrive at an interpretation that best effectuates the purpose of the statute. For an agency like the NLRB that makes decisions almost exclusively through adjudication this may necessitate that the agency reveal its statutory interpretation in a more transparent fashion through rulemaking
Expanding Access to Remedies through E-Court Initiatives
Get PDFVirtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public courts have continued to insist on traditional face-to-face procedures. Nonetheless, e-courts and public ODR pilots are developing throughout the world in particular contexts such as small claims and property tax disputes, and are demonstrating how technology can be used to further efficiency and expand access to the courts. Accordingly, this Article explores these e-court initiatives with a critical eye for ensuring fairness, due process, and transparency, as well as efficiency, in public dispute resolution
