7300 research outputs found
Sort by
Mallory v. Norfolk Southern Railway Co., Due Process and Strange Bedfellows
Get PDF[As the 2022 Supreme Court term waned, the press and public waited with trepidation or excitement for noteworthy cases that addressed important policy questions, including affirmative action, student loan forgiveness, and conflicts between religious freedom and gay rights. Fewer people shared the concerns of Civil Procedure scholars who anxiously awaited the Court’s decision in Mallory v. Norfolk Southern Railway Co. For over a decade, the Court found that states violated due process in asserting personal jurisdiction over various defendants despite the lack of any meaningful burden on the defendant’s ability to defend against claims in the plaintiff’s choice of forum. Mallory raised concerns because of some of the Justices’ questions during oral argument and because the Court did not issue its decision until the end of the term. This led to speculation that the Court was about to radically alter its due process analysis in personal jurisdiction cases based on the original public meaning of the Fourteenth Amendment
Real Practice Systems Project Menu of Checklists for Attorneys in Mediation
No full textThis is a detailed menu of checklists for attorneys representing clients in mediation, including actions before, during, and after mediation sessions. The checklists include items about information to provide on websites, compliance with ethical requirements, and reflection and improvement of techniques. They are intended to prompt attorneys to become more conscious and intentional in their work, helping them to develop routines and strategies for dealing with recurring problems.The checklists are extensive but not exhaustive. They are not recipes to follow strictly, thoughtlessly, or completely. Instead, they should help attorneys decide what to do in any specific case or in their practice generally. Attorneys can use them to develop their own checklists, modifying or omitting some items and adding others. They should tailor these checklists to reflect their values, practice philosophies, and characteristics of their cases and clients. Attorneys can perform almost all of the tasks in the checklists regardless of their views about various mediation models or theories.The checklists are concrete illustrations of Real Practice Systems Theory, illustrating that each attorney inevitably has a unique practice system. Under this theory, attorneys base their systems on their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their mediationsThese checklists complement a menu of checklists for mediators. There is substantial overlap between the mediators’ and attorneys’ checklists, with some significant differences.The checklists are designed primarily for attorneys but they may be valuable to teachers and trainers, students and trainees, program administrators, and academics analyzing mediation
The Obvious Violation Exception to Qualified Immunity: An Empirical Study
No full textQualified immunity shields government officials from civil suits for discretionary actions, as long as the violated right is not clearly established. A right is deemed established when every reasonable official would understand it based on precedent, placing it beyond debate, such that only the plainly incompetent may be held liable. Consequently, even when an act infringes on one\u27s civil rights, a court may deny relief owing to a lack of factually comparable precedent. However, in 2020, the Supreme Court indicated its distrust for overreliance on precedent in certain contexts. In Taylor v. Riojas, the Court held that prison officials violated an incarcerated individual\u27s clearly established rights, regardless of case law, where the allegations presented extreme circumstances and egregious facts. Thus, Taylor articulated an exception to the usual requirement for overcoming qualified immunity - showing a factually comparable precedent - in cases that raise extreme circumstances and egregious facts.
This Article offers the first empirical study encompassing all published lower court opinions referencing Taylor within the three years following its release. This inquiry includes a quantitative analysis of the cases applying Taylor to grant or deny immunity, as well as a qualitative examination of the factual situations where the exception is most likely to succeed. Accordingly, this study suggests that the obvious violation exception is viable, albeit underused. Inferior courts are applying it in situations beyond the Eighth Amendment, and it is subject to a workable test. Therefore, Courts and litigants should employ it more frequently. Finally, the exception is consistent with Taylor and furthers the purpose of the Ku Klux Klan Act of 1871, 42 U.S.C. § 1983, by preventing blatant civil rights abusers from evading consequences
Toward a Better Understanding of Mail Balloting: The Case of U.S. Labor Union-Representation Elections
No full textThe issue of how people vote in elections is important and timely. This Article examines this issue from the perspective of whether people vote by mail - i.e., mail balloting - or in person on a designated election day i.e., in-person voting. It explores the pros and cons of mail balloting versus in-person voting from a general political perspective and in the context of elections for labor union representation in the United States. It presents heretofore unreported data on the use of mail balloting in union-representation elections. It then draws lessons from these data concerning how mail balloting-which has increased in use since the COVID-19 pandemic-potentially impacts, among other things, voter participation rates, election integrity, and election outcomes
Real Lawyering Practice Systems
Get PDFMost of the pieces in the RPS Project have focused on mediation. The theory is not limited to mediation, and this post applies it to lawyering
A Final Shot at Federal Felon Dispossession: Bruen, Heller’s Haven, and Non-Violent Felons
Get PDFFelons are not allowed to possess firearms—yet. New York State Rifle and Pistol Association v. Bruen is the Supreme Court’s most recent elaboration on the Second Amendment, and the Court enunciated a new constitutional test for firearms regulations. The Supreme Court disclaimed the means-end balancing approach developed by courts in the wake of D.C. v. Heller and replaced it with a test focusing only on the plain text of the Second Amendment and the Nation’s historical tradition of firearms regulation. 18 U.S.C. § 922(g)(1), the federal felon dispossession statute, fared well under means-end balancing in the decade after Heller. Although the statute is facing a new onslaught of challenges post-Bruen, § 922(g)(1) remains unscathed. Since Bruen, not a single challenge to § 922(g)(1) has succeeded—including as-applied challenges brought by non-violent felons. This Comment contends that a faithful application of Bruen should not necessarily yield this result, and that the historical record supporting § 922(g)(1)’s constitutionality as applied to non-violent felons is not as straightforward as its winning record suggests. Particularly, this Comment argues that courts must at least conduct a historical inquiry, as mandated by Bruen, when facing challenges to § 922(g)(1), and courts cannot cut their analysis short by relying solely on dicta from Heller
ODD ONE OUT: INCONSISTENCY IN THE FEDERAL ARBITRATION ACT’S JURISDICTIONAL LANGUAGE
Get PDFAfter almost a century, the Federal Arbitration Act (FAA) continues to guide and change the arbitration landscape. While greater focus has been placed on the FAA’s substantive merits and evolution, the act’s procedural role in outlining the relationship between arbitration and the federal court system plays an equally important role in alternate dispute resolution. Notably, recent concerns regarding inconsistencies in the act’s jurisdictional language may undermine the FAA’s ability to provide a clear, efficient, and fair process for arbitration
Repealing Single-Family Zoning Is Not Enough: A Proposal For Removing Existing Parallel Private Covenants For Violating Public Policy
Get PDFThe United States is currently suffering a pervasive and unsettling shortage of housing and increased housing unaffordability. Rents are at an all-time high, which has a disproportionate impact on people of color and people earning lower incomes as these individuals are more likely to rent rather than own their homes. Moreover, people solidly in the middle class are finding it increasingly difficult to purchase residences within their budgets