3320 research outputs found
Sort by
“Best Practices”: A Giant Step Toward Ensuring Compliance With ABA Standard 405(c), a Small Yet Important Step Toward Addressing Gender Discrimination in the Legal Academy
Get PDFIn March 2014, the American Bar Association (ABA) voted to leave Accreditation Standard 405 undisturbed.” The ABA’s decision required law schools to continue to grant tenure to traditional law faculty, yet permitted them to continue to deny tenure to clinical and legal writing faculty. At the same time, recognizing the need for increased professional skills training, the ABA voted to increase the number of experiential credits law students must complete from one to six. As explained to the ABA Council in advance, these two decisions work together to increase the demands on skills faculty, who are predominantly female, yet keep them at a lower professional status with less security of position. And it is not clear that law schools are hiring additional, full-time skills faculty to meet these demands.
During the six years of review and debate that led to the 2014 vote, the Society of American Law Teachers (SALT) and the Association of Legal Writing Directors (ALWD) urged the ABA Council to continue to require tenure to ensure academic freedom. Along with the Clinical Legal Education Association (CLEA), they further urged the Council to adopt a standard that would not discriminate against full-time faculty on the basis of subject matter. The only proposal the Standards Review Committee made that came close to the joint recommendations was Alternative C. Although it did not require tenure, Alternative C proposed that law schools accord all full-time faculty members the same rights as other full-time faculty “irrespective of a full-time faculty member’s academic field or teaching methodology.” The Council rejected Alternative C and chose not to publish it for notice and comment.
Regrettably, the long and tortured history of Standard 405 suggests that the vision of equal opportunity for all law faculty—traditional, clinical, legal writing, academic support, and teaching librarians—is not going to be realized anytime soon. The highest and best security of position most professional skills faculty can likely hope for in the near future is that embodied in current Standard 405(c). Thus, law schools’ adherence to established best practices is necessary if “reasonably similar to tenure” is to mean something for those who struggle to and ultimately achieve 405(c) status
Of Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals
Get PDFCongress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at the heart of a potentially landmark case, al Bahlul v. United States, currently before the Supreme Court.
In the rare cases where the Supreme Court has recognized exceptions to Article III’s criminal trial protections, it has typically invoked functional and normative justifications. When it comes to adjudication of war-related domestic-law offenses, however, neither the government nor the appellate judges who have defended commission trials have offered any such functional or normative considerations sufficient to justify denial of the independent judge and jury that Article III guarantees. Defenders of the military tribunals have instead relied almost exclusively upon historical claims of two kinds to defend the constitutionality of using military commissions in this context. This Article addresses one of those historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to prosecute a war as it did during the Revolutionary War. According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a practice of military adjudication of offenses that were not violations of the international law of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against certain spies and against disloyal civilians who aided the British. The earliest Congresses purportedly confirmed this constitutional understanding by enacting statutes permitting military trials for spying and for aiding the enemy—statutes that have remained in the federal code ever since.
This Article offers the first comprehensive account of the Revolutionary War precedents. It discusses how they were understood in the ensuing decades and the ways in which they, and the post-1789 statutes, have been invoked and mischaracterized as authority in later wars. This history demonstrates that the received wisdom about these precedents is almost entirely mistaken, and that they provide little, if any, support for a new Article III exception for military adjudication of war-related domestic-law offenses. The Article thus offers an object lesson in how a complex history can be misunderstood and distorted in the course of constitutional interpretation, particularly on questions of war powers.
The pre-constitutional history does, however, include one conspicuous aberration: a 1778 congressional resolution authorizing trial by court-martial of civilians who provided a particular kind of aid to the British army. General Washington relied upon this resolution in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to surrender West Point to the British. This Article shows why it would be a mistake to accord much interpretive weight to the Smith case—a striking deviation from Washington’s otherwise consistent conduct—in crafting exceptions to Article III’s criminal trial guarantees
A Mental Health Checkup for Children at the Doctor’s Office: Lessons from the Medical-Legal Partnership Movement to Fulfill Medicaid’s Promise
Get PDFTraumatic childhood events and the stress they cause can negatively affect health over a lifetime. For children with Medicaid coverage, visits to the doctor’s office present an opportunity to improve this trajectory. Medicaid’s Early Periodic Screening Diagnostic and Treatment (EPSDT) mandate requires that children receive more than a basic physical when they see a doctor for regular “well-child checks.” As part of a comprehensive look at their development, they should receive mental health check-ups that could identify childhood trauma, its impacts, and the interventions that could help improve health and mental health. Data suggests that many children do not receive these mandatory comprehensive screenings. Significant barriers to screening include lack of transportation for patients, low reimbursement rates for physicians that limit their ability to devote enough attention to screenings, and lack of access to mental health screening tools.
Medical-legal partnerships (MLPs) provide a framework for addressing these challenges. MLPs bring together civil legal services lawyers with health providers to address social determinants of health. This article argues that the MLP movement provides a three-tiered paradigm for change for physicians and attorneys to improve the trajectory for children who have suffered trauma and address the gaps in Medicaid EPSDT mental health screening: (1) collaborative advocacy to improve patient health, (2) transformation of health and legal institutions, and (3) policy change
An Enquiry Meet for the Case: Decision Theory, Presumptions, and Evidentiary Burdens in Formulating Antitrust Legal Standards
Get PDFPresumptions have an important role in antitrust jurisprudence. This article suggests that a careful formulation of the relevant presumptions and associated evidentiary rebuttal burdens can provide the “enquiry meet for the case” across a large array of narrow categories of conduct confronted in antitrust to create a type of “meta” rule of reason. The article begins this project by using decision theory to analyze the types and properties of antitrust presumptions and evidentiary rebuttal burdens and the relationship between them. Depending on the category of conduct and market structure conditions, antitrust presumptions lie along a continuum from conclusive (irrebuttable) anticompetitive, to rebuttable anticompetitive, to competitively neutral, and on to rebuttable procompetitive and conclusive (irrebuttable) procompetitive presumptions. A key source of these presumptions is the likely competitive effects inferred from market conditions. Other sources are policy-based -- deterrence policy concerns and overarching policies involving the goals and premises of antitrust jurisprudence. Rebuttal evidence can either undermine the facts on which the presumptions are based or can provide other evidence to offset the competitive effects likely implied by the presumption. The evidentiary burden to rebut a presumption depends on the strength of the presumption and the availability and reliability of further case-specific evidence. These twin determinants can be combined and understood through the lens of Bayesian decision theory to explain how “the quality of proof required should vary with the circumstances.” The stronger the presumption and less reliable the case-specific evidence in signaling whether the conduct is anticompetitive versus procompetitive, the more difficult it will be for the disfavored party to satisfy the evidentiary burden to rebut the presumption. The evidentiary rebuttal burden generally is a burden of production, but also can involve the burden of persuasion, as with the original Philadelphia National Bank structural presumption, or typical procompetitive presumptions. If a presumption is rebutted with sufficient offsetting evidence to avoid an initial judgment, the presumption generally continues to carry some weakened weight in the post-rebuttal phase of the decision process. That is, a thumb remains on the scale. However, if the presumption is undermined, it is discredited and it carries no weight in the post-rebuttal decision process. The article uses this methodology to analyze various antitrust presumptions. It also analyzes the, burden-shifting rule of reason and suggests that the elements should not be rigidly sequenced in the decision process. The article also begins the project of reviewing, revising and refining existing antitrust presumptions with proposed revisions and refinements in a number of areas. The article invites other commentators to join the project by criticizing these proposals and suggesting others. These presumptions then could be applied by appellate courts and relied upon by lower court, litigants and business planners
The Untapped Power of Soda Taxes: Incentivizing Consumers, Generating Revenue, and Altering Corporate Behavior
Get PDFGlobally, soda taxes are gaining momentum as powerful interventions to discourage sugar consumption and thereby reduce the growing burden of obesity and non-communicable diseases (NCDs). Evidence from early adopters including Mexico and Berkeley, California, confirms that soda taxes can disincentivize consumption through price increases and raise revenue to support government programs. The United Kingdom’s new graduated levy on sweetened beverages is yielding yet another powerful impact: soda manufacturers are reformulating their beverages to significantly reduce the sugar content. Product reformulation – whether incentivized or mandatory – helps reduce overconsumption of sugars at the societal level, moving away from the long-standing notion of individual responsibility in favor of collective strategies to promote health. But as a matter of health equity, soda product reformulation should occur globally, especially in low- and middleincome countries (LMICs), which are increasingly targeted as emerging markets for soda and junk food and are disproportionately impacted by NCDs. As global momentum for sugar reduction increases, governments and public health advocates should harness the power of soda taxes to tackle the economic, social, and informational drivers of soda consumption, driving improvements in food environments and the public’s health
The Supreme Court’s “Non-Transsubstantive” Class Action
Get PDFThis year marks the fiftieth anniversary of the adoption of Federal Rule of Civil Procedure Rule 23, and with it, the advent of the modern class action. As the fiftieth anniversary approached, many scholars, including myself, said that class actions were dead, dying, or headed for a zombie state. Many of the Supreme Court’s recent class action cases all but confirmed that view. In just the last six years, the Supreme Court ratcheted up the requirements for class certification under Rule 23 in Wal-Mart Stores v. Dukes and Comcast v. Behrend, increasing the cost and difficulty of obtaining certification. And, in a series of cases, the Court permitted the use of class action prohibitions in arbitration contracts, thus eliminating a swath of class actions and, often, the underlying claims themselves. The Court’s language in these cases also tracked stock arguments against the class action, leaving the distinct impression that the Roberts Court was on a mission to diminish or destroy the class action procedure.
But a funny thing happened on the way to the funeral: just as the obituaries for the class action were being written, the Supreme Court issued a series of decisions that breathed new life into it. In Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II) and Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, the Court reaffirmed the fraud-on-the-market theory, a critical tool in securities class actions. In Tyson Foods v. Bouaphakeo, the Court vindicated the use of statistical proof to satisfy Rule 23 requirements, distancing itself from strong suggestions in prior cases that individualized proof requirements would doom class certification. And the language in these cases tracked stock arguments in favor of class actions.
To paraphrase Mark Twain, the rumors of the class action’s death now seem greatly exaggerated. But the Court’s class action decisions raise a new and perhaps more vexing question. If the Court is not fully intent on destroying the class action, what drives its seemingly disparate decisions? Do they reflect an anti–class action agenda losing steam, as Professor Coffee has suggested? Was the unbridled anti–class action agenda an illusion to begin with? Or is there a deeper explanation for these decisions? Part I of this Article demonstrates that the Court’s “pro–class action” decisions cannot be easily reconciled with their “anti–class action” counterparts through traditional means—neither through straightforward applications of Rule 23, nor precedent, nor particular case facts. But Part II posits that the Court’s seemingly disparate class action cases can still be rationalized. To do so, however, one must look past the procedural veneer and consider the underlying substantive rules and remedial regimes at stake. Indeed, a key question presented in each case—notwithstanding what appears in the petitions for writs of certiorari—is whether the Court will embrace an interpretation of a substantive rule that has the effect of facilitating the availability of the class action. The Court’s ultimate answer reflects a composite judgment about the substantive rule at issue and its implications for the availability of the class action device. Accordingly, to the extent one insists that procedural rules are, or ought to be, transsubstantive—that, “in form and manner of application, [they do] not vary from one substantive context to the next”—the Court’s class action jurisprudence might actually be deemed “non-transsubstantive.”
This Article’s thesis has numerous implications—for separation of powers, judicial lawmaking power, federalism, the role of precedent, notions of transsubstantive procedure, procedural theory, and the nature and legitimacy of the judicial role, among others. The limitations of the Article format permit consideration in Part III of just two: First, the implications for the nature and scope of the federal courts’ procedural and substantive lawmaking powers under the Rules Enabling Act [hereinafter Enabling Act]. And second, related implications for the nature and legitimacy of the judicial role in “procedural” opinions
2016 James P. While Lecture on Legal Education: Legal Education Reconsidered
Get PDFThe title of my talk, “Legal Education Reconsidered,” is not meant to suggest that legal education needs to be reconsidered. On the contrary, I will explore why the many criticisms of legal education made over the past six years combined with a significant decline in the legal job market have led many people—including many college students and recent graduates—not only to reconsider legal education, but to draw the conclusion that it is no longer a worthwhile investment. Even worse, a growing number of faculty and deans have become disheartened about their chosen life’s work and as a consequence have lost sight of the value of an American legal education
Whither Antitrust Enforcement in the Trump Administration?
No full textWhat should one expect in the area of antitrust from the Trump administration?
The Republican platform did not mention antitrust. However, as a candidate, President Trump made several statements that suggest a very aggressive approach to antitrust.
Antitrust enforcement generally has bipartisan support. Washington antitrust lawyers tend to say that Republican and Democratic administrations differ only “at the margins.” Perhaps, but those “margins” can be pretty large. Price-fixing enforcement is a priority, regardless of the party controlling the White House. However, merger enforcement and civil non-merger enforcement can vary significantly, depending on the inclinations of the leadership at the Department of Justice Antitrust Division and the Federal Trade Commission and the overall approach of the administration.
We sketch out in this article two broad—and generally conflicting—approaches that might form the basis for Trump administration antitrust policy. As a kind of shorthand, we refer to these as “reining in corporate power” and “laissez faire.” In the language of the angry electorate, these instead might be called “fixing the rigged system” and “triumph of the 1%.” There is, of course, a continuum of policy choices along this dimension, from more to less interventionist
Making News: Balancing Newsworthiness and Privacy in the Age of Algorithms
Get PDFIn deciding privacy lawsuits against media defendants, courts have for decades deferred to the media. They have given it wide berth to determine what is newsworthy and so, what is protected under the First Amendment. And in doing so, they have often spoken reverently of the editorial process and journalistic decision-making.
Yet, in just the last several years, news production and consumption has changed dramatically. As we get more of our news from digital and social media sites, the role of information gatekeeper is shifting from journalists to computer engineers, programmers, and app designers. The algorithms that the latter write and that underlie Facebook, Twitter, Instagram, and other platforms are not only influencing what we read but are prompting journalists to approach their craft differently.
While the Restatement (Second) of Torts says that a glance at any morning newspaper can confirm what qualifies as newsworthy, this article argues that the modern-day corollary (which might involve a glance at a Facebook News Feed) is not true. If we want to meaningfully balance privacy and First Amendment rights, then courts should not be so quick to defer to the press in privacy tort cases, especially given that courts’ assumptions about how the press makes newsworthiness decisions may no longer be accurate. This article offers several suggestions for making better-reasoned decisions in privacy cases against the press