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The End of an Era? Federal Civil Procedure after the 2015 Amendments
Get PDFThe recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.
This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee\u27s earlier proposals and supporting documents, the final amendments in light of their text, structure, and accompanying advisory committee notes should be interpreted to preserve notice pleading and a robust discovery process. The more significant lesson of the 2015 amendments, therefore, may be to confirm the view that the amendment mechanism of the Rules Enabling Act is unlikely to generate consequential changes to the Federal Rules (for better or for worse). The process leading to the 2015 amendments was teed up almost perfectly for opponents of meaningful access and enforcement to make real, detrimental changes to federal pleading and discovery standards. Yet the final amendments ultimately did not do so.
Accordingly, the key battleground following the 2015 amendments will be in the federal courts themselves, as judges are called upon to interpret and apply the rules in particular cases. No doubt aware of this fact, Chief Justice Roberts has taken various steps to spin the recent amendments as making more significant changes than they actually do. These post-amendment moves are not legally authoritative and do not modify the law of civil procedure. But the Chief Justice and his allies may win the day if they are able to dominate the gestalt surrounding the 2015 amendments in a way that persuades lower court judges to take a more restrictive approach. Properly interpreted, the 2015 amendments do not support the Chief\u27s narrative. Recognizing this will be crucial for ensuring access and enforcement going forward
Privacy revisited: a global perspective on the right to be left alone
No full textRapid technological change, the advent of Big Data, and the creation of society-wide government surveillance programs have transformed the accessibility of highly personal information; these developments have highlighted the ambiguous treatment of privacy and personal intimacy. National legal systems vouchsafe and define privacy, and its first cousin dignity, in different ways that reflect local legal and cultural values. Yet, in an increasingly globalized world, purely local protection of privacy interests may prove insufficient to safeguard effectively fundamental autonomy interests - interests that lie at the core of self-definition, personal autonomy, and freedom. Privacy Revisited articulates the legal meanings of privacy and dignity through the lens of comparative law, and argues that the concept of privacy requires a more systematic approach if it is to be useful in framing and protecting certain fundamental autonomy interests. The book begins by providing relevant, and reasonably detailed, information about both the substantive and procedural protections of privacy/dignity in the U.S., Canada, South Africa, the United Kingdom, and among Council of Europe member states. Second, the book explores the inherent tension between affording significant legal protection to the right of privacy (or human dignity) and securing expressive freedoms, notably including the freedom of speech and of the press. The author then posits that the protection of privacy helps to illuminate some of the underlying social and political values that lead the U.S. to fail to protect privacy as reliably or as comprehensively as other liberal democracies. Finally, the book establishes that although privacy and speech come into conflict with some regularity, it is both useful and necessary to start thinking about the important ways in which both rights are integral to the maintenance of democratic self-government.https://scholarship.law.ua.edu/fac_books/1040/thumbnail.jp
Decriminalizing Polygamy
Get PDFPolygamous families are our national outlaws. Despite the expansion of sexual rights and marriage equality in the U.S., polygamy remains a crime. Challenging that stigma is the Brown family, who star in the reality TV show “Sister Wives” and who practice polygamous marriage as a tenet of their religion. The Browns filed suit against multiple Utah state actors in federal district court, challenging Utah\u27s polygamy statute as unconstitutional in violation of their Free Exercise of Religion, substantive Due Process, and Equal Protection rights. The district court agreed and decriminalized informal polygamy in Utah. On appeal, the Tenth Circuit reversed the district court on mootness grounds, displaying an inherent reluctance to address the merits of the arguments, re-affirming outdated misconceptions, and leaving prosecutors and polygamists in an uncertain legal position. This Article provides much needed clarity on the decriminalization of polygamy to inform future litigation. This Article approaches the decriminalization debate by re-framing the issue into its three key considerations--the harm, the law, and the policy--that must guide the polygamy debate moving forward. The aim is to provide a gloss over the Brown litigation in order to draw out the harms of polygamy, the constitutional arguments and statutory interpretation issues at stake, and the transformative legal and theoretical social policies that could ideally result from the polygamy debate at this moment in history. Using this framework, this Article\u27s novel argument is that polygamy bans are unconstitutional under a combination of substantive Due Process and Free Speech grounds as they apply to the private aspects of polygamy and the public aspects of polygamy, respectively. The Article culminates with an idealized, mock opinion from a fictional Tenth Circuit panel in the Brown litigation that approaches the decriminalization of polygamy using a combination of substantive Due Process and Free Speech tenets, and not arguments based in Free Exercise of Religion
No Virtue Like Necessity: Dealing with Nonpoint Source Pollution and Environmental Flows in the Face of Climate Change
Get PDFIn many ways the Clean Water Act of 1972 has been a tremendous success Discharges of water pollutants from both industrial and municipal point sources have plummeted the loss of wetlands has been cut decisively and water quality has improved broadly across the nation Despite all of this progress the quality of many of our waters remains impaired In other words a significant proportion of our rivers lakes and smaller streams are simply not clean enough to fully support their designated uses such as fishing or recreation The primary reason for this lies in the failure of the Act to effectively tackle two significant sources of water pollution nonpoint source pollution diffuse runoff from for instance fields and logging operations and hydrologic modifications such as water withdrawals impoundments and diversions for offstream uses In both cases Congress bowed to old concepts of federal and state responsibility and left control of both kinds of pollution primarily in state hands While some states have responded well to the challenge most have not proven equal to the task New approaches are thus needed to deal more effectively and more comprehensively with these two problems the magnitude of each of which is staggering over 40000 nonpoint source impaired waterbodies and thousands of flow impaired watersBoth problems moreover are just going to get worse since climate change will exacerbate each problem Climate change has already brought more intense precipitation in its wake and this national trend toward heavier precipitation events will intensify in the future producing even more runoff and nonpoint source pollution In addition hotter and drier conditions especially in the West will place greater strains upon streamflows wreaking increasing damage on aquatic ecosystems as well as creating more conflict among those who use waterProgress on creating a more effective federalstate partnership to combat both problems has proven impossible for over forty years Many states and their allies in Congress have successfully resisted such efforts citing traditional state interests over land use and water allocations The problems however are growing more severe Action is becoming imperative if the nation is going to respond in a rational fashion to both challenges This article therefore concludes with an exploration of a number of administrative and legislative approaches for creating more dynamic and integrated strategies for dealing with both of these national problem
The last good girl
No full textFrom Allison Leotta, the highly entertaining storyteller (George Pelecanos) who writes in a style that\u27s as real as it gets (USA TODAY), a ripped-from-the-headlines novel featuring prosecutor Anna Curtis at the center of a national story involving campus rape and the disappearance of a young woman. Emma, a freshman at a Michigan university, has gone missing. She was last seen leaving a bar near the prestigious and secretive fraternity known on campus as the rape factory. The main suspect is Dylan Brooks, the son of one of the most powerful politicians in the state. But so far the only clues are pieced-together surveillance footage of Emma leaving the bar that night...and Dylan running down the street after her. When Anna discovers the video diary Emma kept over her first few months at college, it exposes the history she had with Dylan: she had accused him of rape before disappearing. Emma\u27s disappearance gets media attention and support from Title IX activists across the country, but Anna\u27s investigation hits a wall. Now Anna is looking for something, anything she can use to find Emma alive. But without a body or any physical evidence, she\u27s under threat from people who tell her to think hard before she ruins the name of an innocent young man. Inspired by real-life stories, The Last Good Girl shines a light on campus rape and the powerful emotional dynamics that affect the families of the men and women on both sides -- Provided by publisherhttps://scholarship.law.ua.edu/harper_lee_prize_books_2017/1017/thumbnail.jp
The advocate\u27s daughter
No full textA Washington, D.C. lawyer and a frequent major media commentator on the Supreme Court, Anthony Franze delivers a high-stakes story of family, power, loss and revenge set within the insular world of the highest court of our country. Among Washington D.C. power players, everyone has secrets they desperately want to keep hidden, including Sean Serrat, a Supreme Court lawyer. Sean transformed his misspent youth into a model adulthood, and now has one of the most respected legal careers in the country. But just as he learns he\u27s on the short list to be nominated to the U.S. Supreme Court, his daughter, Abby, a talented and dedicated law student, goes missing. Abby\u27s lifeless body is soon found in the library of the Supreme Court, and her boyfriend, Malik Montgomery, a law clerk at the high court, is immediately arrested. The ensuing media frenzy leads to allegations that Malik\u27s arrest was racially motivated, sparking a national controversy. While the Serrat family works through their grief, Sean begins to suspect the authorities arrested the wrong person. Delving into the mysteries of his daughter\u27s last days, Sean stumbles over secrets within his own family as well as the lies of some of the most powerful people in the country. People who will stop at nothing to ensure that Sean never exposes the truth -- Provided by publisher; A Thomas Dunne book.https://scholarship.law.ua.edu/harper_lee_prize_books_2017/1009/thumbnail.jp
The ex: a novel
No full textAfter agreeing to defend her ex-fiancé when he is arrested for a triple homicide, top criminal lawyer, Olivia Randall begins to have doubts as the evidence mounts against himhttps://scholarship.law.ua.edu/harper_lee_prize_books_2017/1002/thumbnail.jp
An invisible client
No full textFor high-powered personal injury attorney Noah Byron, the good things in life come with a price tag-cars, houses, women. That\u27s why he represents only cases that come with the possibility of a nice cut of the action. But as a favor to his ex-wife, he meets with the mother of twelve-year-old Joel, a boy poisoned by tainted children\u27s medicine. While the official story is that a psycho tampered with bottles, the boy\u27s mother believes something much more sinister is at work... and the trail leads right back to the pharmaceutical company. As Noah digs deeper into the case, he quickly finds himself up against a powerful corporation that will protect itself at any cost. He also befriends young Joel and breaks the number one rule of personal injury law: don\u27t make it personal. Faced with the most menacing of opponents and the most vulnerable of clients, Noah is determined to discover the truth and win justice for Joel-even if it means losing everything elsehttps://scholarship.law.ua.edu/harper_lee_prize_books_2017/1018/thumbnail.jp
The last days of night: a novel
No full textWhen electric light innovator Thomas Edison sues his only remaining rival for patent infringement, George Westinghouse hires untested Columbia Law School graduate Paul Ravath for a case fraught with lies, betrayals, and deception; Includes bibliographical references ; PART I. Salients, p.1 -- PART II. Reverse Salients, p.131 -- PART III. Solutions, p.285 -- A Note From The Author, p.359https://scholarship.law.ua.edu/harper_lee_prize_books_2017/1019/thumbnail.jp