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Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court
Get PDFSince the late twentieth century, federal and state jurisdictions across the United States have explored the use of Alternative Dispute Resolution (“ADR”) programs to resolve legal disputes. ADR programs provide extrajudicial mechanisms through which parties can resolve their disputes without the delay and expense of a traditional judicial proceeding. Courts and practitioners alike have lauded ADR programs. For litigators, ADR programs are a way to deliver outcomes to clients quickly and efficiently. For courts, ADR programs are a way to remove cases from overcrowded dockets.
While ADR is generally considered to be speedier and more cost-efficient than a trial, little empirical research has been done to determine which sorts of ADR programs deliver the greatest returns. An examination of the last four decades of ADR programs in Delaware Superior Court may provide just this insight.
Since 1978, the Delaware judiciary has enacted, repealed, and amended three similar, but distinct, iterations of an ADR program in Delaware Superior Court. Because all three iterations were enacted in the same court system, the Delaware ADR program is a microcosm in which different characteristics of ADR programs may be compared against each other. This objective comparison reveals which iteration of the ADR program has proven most efficient for Delaware, and may provide valuable insights for legislators and rule-makers who seek to design efficient ADR programs in jurisdictions across the United States
Tax Enforcement at the Intersection of Social Welfare and Vulnerable Populations
Get PDFThis Essay engages with Professor Bernadette Atuahene’s theory of stategraft in the context of tax administration and the role that the Internal Revenue Service (IRS) plays in implementing certain social welfare benefits, including the Earned Income Tax Credit (EITC). Specifically, it considers whether the IRS’s denials of the EITC to those who might otherwise be eligible and entitled to it constitutes a wrongful taking by the state or a violation of basic human rights. While this Essay concludes that denials of the EITC generally do not fit within Atuahene’s definition of stategraft, it highlights two particularly problematic concerns with modern EITC enforcement and frames those within the context of Professor Atuahene’s broader concerns about how state actions affect vulnerable populations.
One concern is the racially disparate EITC audit outcomes that have come to light. Though the IRS does not collect information on taxpayer race and ethnicity, a recent report found that, among all taxpayers claiming the EITC, Black taxpayers are statistically more likely to be audited than non- Black taxpayers. The other concern relates to the so-called two-year ban, which can be imposed by the IRS following a determination that a taxpayer wrongly claimed the EITC or Child Tax Credit due to reckless or intentional disregard of rules and regulations. Though the ban is not imposed frequently, this Essay highlights due process and fairness concerns related to this authority. This Essay concludes with brief remarks about the IRS’s enforcement priorities and efforts to curtail improper payment rates of refundable tax credits
An Introduction to German Law and Legal Culture: Text and Materials (2024)
No full textAn Introduction to German Law and Legal Culture offers students, comparative law scholars, and practitioners an insightful and innovative survey of the German legal system. While recognizing the significant influence of the Civil Law tradition in the German legal culture, the book also considers other legal traditions – Common Law, Socialist Law, Islamic Law, Adversarial Law, European Law – that are woven into the varied and colorful fabric of the German legal culture. The book provides an informed yet accessible introduction to the foundations of German law as well as to the theory and doctrine of some of the most relevant fields of law: Private Law, Constitutional Law, Administrative Law, Criminal Law, Procedural Law, and European Law. It is an engaging and pluralistic portrayal of one of the world\u27s most interesting, important, and frequently modelled legal systems.https://scholarlycommons.law.wlu.edu/fac_books/1190/thumbnail.jp
La Cour! La Mer!
Get PDFThe presence of courts—la Cour, certainement, mais d’autres aussi—weaves and wends throughout The Last Colony. Fundamentally, this is a story of courts (tribunals, arbitrations, etc.) righting wrongs or, in the least, setting a tune for wrongrighting to which political institutions then can hum along. Philippe Sands evokes the solemnity of legalism with the ‘La Cour!’ greeting, which he plays and replays, and with which he begins his book. These are welcoming words, for Sands, and also welcoming words for law, insofar as they signal the opening of the International Court of Justice (ICJ)—La Cour!—for the Chagossian justice journey. This journey aims at redressing the U.K.’s partition of Chagos from Mauritius and the resultant expulsion of Chagossian residents
Grasping the Third Rail: Restorative Justice and Violent Crime
Get PDFRestorative justice is a means of responding to harm— including criminal offenses—through active accountability and repair, rather than through passive punishment and isolation. While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime—both within and alongside the American criminal system—has been slow, limited, and misplaced. Programs are often directed at low-level, nonviolent offenses that involve little if any cognizable harm. This approach creates two problems. One, it risks net-widening: bringing more citizens under criminal surveillance and carceral control for minor offenses—further diluting the constitutional and procedural protections already watered-down in our misdemeanor courts. Two, it ignores the research showing that restorative justice is more necessary and more effective in cases where serious harm has occurred.
As restorative justice offerings across the country expand, legislators and prosecutors continue to exclude crimes of violence, particularly domestic and intimate partner violence and sexual offenses, from their initiatives. These offenses have become the “third rails” of restorative justice. Yet it is precisely in these cases that conventional criminal system responses are failing. It is also in these cases that restorative justice has the greatest potential to meet the needs of involved parties and reduce rates of reoffending. So why are they considered off-limits? This is partly due to pervasive misunderstandings and misconceptions of what restorative justice is and how it operates, both in theory and in practice.
It is time to grasp restorative justice’s third rail: to reconsider how and where it is being used in the criminal system and explore what restorative justice could offer in the pursuit of more effective and equitable responses to violent crime
Title Theft
Get PDFReal property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.
Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title.
Recovery of title, however, involves costs and delays that are difficult to bear, especially for victims without significant resources—often the favorite targets of scammers. Legislators have proposed a variety of reforms to make unauthorized transfers more difficult. Most of the proposed reforms, however, would do little to ease the financial burden on victims. Victims cannot generally rely on title insurance because the standard title insurance policy does not protect the insured against title defects that arise after issuance of the policy. Requiring title insurers to cover post-policy forgery and fraud would ease the burden on victims without significantly increasing costs to title insurers
Mandatory Sentences as Strict Liability
Get PDFStrict liability crimes—crimes that do not require a criminal intent—are outliers in the world of criminal law. Disregarding criminal intent risks treating the blameworthy the same as the blameless.
In a different galaxy far, far away, mandatory sentences—sentences automatically imposed upon a criminal conviction—are unconstitutional in certain contexts for the exact same reason. Mandatory death sentences risk treating those who do not deserve death the same as those that might.
Two completely separate contexts, two parallel rules of law. Yet courts and commentators have failed to see the similarities between these two worlds, leaving an analytical black hole. Indeed, equity in criminal sentencing may depend upon recognizing the connections between these parallel universes.
This Article aims to fill this analytic gap, proposing a rethinking of mandatory sentences in light of the way criminal law treats strict liability crimes. Specifically, the Article argues that courts should reconceptualize mandatory sentences as a type of strict liability. To that end, it proposes a series of possible statutory and constitutional limits on mandatory sentences
A Major Wrong on a Private Right of Action Under the Voting Rights Act
Get PDFIn Brnovich v. Democratic National Committee, Justice Neil Gorsuch posited in a short concurrence that Section 2 of the Voting Rights Act (“VRA”) does not confer a private right of action. That idea seemingly came out of nowhere, as Supreme Court precedent was clear and no one had suggested that the VRA did not allow private parties to bring suit. Justice Gorsuch’s one-paragraph concurrence was both unsupported and wrong. Even the single case he cited did not support his proposition.
An Arkansas district court and then the Eighth Circuit, however, followed Justice Gorsuch’s lead, ruling that only the federal Department of Justice (“DOJ”) may bring suits to challenge voting practices that violate Section 2 of the VRA. These holdings are yet another attempt to further undermine the vital protections of the VRA. The implications of giving the DOJ the sole responsibility for bringing all Section 2 cases is stark, as it will ultimately lead to underenforcement of the Act. The plaintiffs, likely fearful of a bad decision from the Supreme Court that would apply nationwide, chose not to appeal. Therefore, at least in the states within the Eighth Circuit, the VRA has lost some of its force given that private plaintiffs cannot bring suit.
History and precedent, however, show that Section 2 of the VRA implicitly confers a private right of action. Although the plaintiffs in the Eighth Circuit chose not to seek Supreme Court review, the issue is sure to recur. When it does reach the Supreme Court, the Justices should reject the Eighth Circuit’s holding and rule that private plaintiffs may bring claims under Section 2. More broadly, this episode shows that Justices should pay close attention to the seemingly offhand comments that other Justices make and refute them explicitly
Brief of Amici Curiae Scholars for the Advancement of Children’s Constitutional Rights in Support of Defendants-Appellees: \u3cem\u3eSt. Mary Catholic Parish v. Roy\u3c/em\u3e
Get PDFAmici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the harms that four-year-olds in the LGBT community – LGBT children and children with LGBT parents – would bear should state-funded religious schools be granted a license to discriminate against them. An exemption to Colorado’s Universal Preschool Program’s equal-opportunity requirement would allow plaintiffs to discriminate against these children and plant unfair barriers in their paths to a high-quality education and inflict dignitary, psychological, and familial harms upon an entire class of young people solely because of their or their parents’ LGBT identities. The exemption would also force Colorado to give legal effect to private beliefs in violation of state statutory protections and federal constitutional mandates
Artificial Fiduciaries
Get PDFThe rapid development of technology in the last decade has affected all levels of society. Corporate governance has not been immune to these changes. In the future, Artificial Intelligence (“AI”) fiduciaries may be technologically capable of serving as independent corporate directors. This could be an effective way to address the challenge of the absence of truly independent directors in the traditional governance framework. Artificial fiduciaries could also offer a way to mitigate agency costs and improve overall corporate governance. However, traditional corporate law lacks solutions for coping with the integration of AI into corporate governance.
Currently, there is little scholarship discussing the intersection of AI and corporate governance. Because the impact of technology on corporate governance is inevitable, jurisdictions with a robust corporate focus (such as Delaware) will likely have to amend their corporate laws. This Article introduces the theory
traditional fiduciary duties. It aims to harmonize the long-established duties of loyalty and care with the fast-paced technological advancements of the modern era. The discussion extends beyond the question of whether AI is more than a mere tool and scrutinizes the anticipated critiques of AI’s alleged faults--including issues of bias, the “black box” problem, and concerns related to the “superdirector.” It also explores the “human in the loop” option in the context of artificial fiduciaries. This comprehensive analysis not only highlights AI’s pivotal role in driving the evolution of traditional corporate governance toward an innovative technological framework but also delineates clear trajectories and presents a strategic blueprint for technological governance’s forthcoming evolution