3722 research outputs found
Sort by
Arbitrator Reversal under Federal Arbitration Act Section 10(a)(3) for Excluding Evidence
No full textIn honor of the 100th anniversary of the Federal Arbitration Act, this volume brings together a diverse group of leading scholars and practitioners to celebrate its successes and propose specific reforms. Readers will gain insight into how the Federal Arbitration Act impacts the modern practice of arbitration and how the Supreme Court’s interpretation of the Act undermines its fairness. Focusing on domestic, commercial and consumer, as well as securities and labor and employment arbitration, this book provides a roadmap to enhance the fairness and coherence of the Act. The volume is unique in that it serves as the impetus for a law reform project, with over thirty scholars speaking collectively for improvements to the law. More effective than scattershot arguments, this coordinated effort delivers a consistent message to a national audience: that arbitration has become ubiquitous and the law should ensure it is fair and equitabl
Uniform Commercial Code: Introduction
Get PDFThe survey that follows highlights the most important developments of 2023 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions. Along with the usual descriptions of interesting judicial decisions highlighted in the survey, there has also been legislative progress in several areas. The 2022 Amendments to the Uniform Commercial Code ( U.C.C. ) (the 2022 Amendments ) have been adopted in twenty-four states plus the District of Colombia and introduced in five states
A Federal Inmate’s Right to Stay Home
Get PDFSince the start of the COVID–19 pandemic, the Federal Bureau of Prisons (“BOP”) has, for the first time in history, placed tens of thousands of inmates onto home confinement. Likely due to the unprecedented nature and rapid release of inmates to contain the virus, the BOP failed to timely update their policies and procedures surrounding the disciplinary system of inmates on home confinement. This failure to update resulted in the BOP removing inmates from home confinement and placing them back in prison for minor violations. Furthermore, when the BOP chose to remove an inmate from home confinement, it did so without any proceeding, hearing, or even an explanation. The lack of due process occurred because the BOP continued to use its Inmate Discipline Program Statement—procedures for addressing infractions in prison—as a model for remanding inmates on home confinement back to prison. Instead, the BOP should be following the two-step due process procedures the Supreme Court has outlined for those inmates on parole—a program that is nearly indistinguishable from home confinement. Inmates on home confinement are entitled to the constitutional protections of this two-step process because they have a liberty interest in remaining on home confinement.
To ensure the BOP protects the due process rights of inmates on home confinement, this Comment proposes a change in the BOP’s disciplinary system. This Comment first proposes that the BOP promulgate the Morrissey procedural due process rights for inmates on home confinement into the Code of Federal Regulations. This Comment secondly proposes that the BOP revises its Inmate Discipline Program Statement to reflect the prohibited acts and available sanctions that uniquely apply to inmates on home confinement. Collectively, this new regulatory scheme will afford inmates on home confinement the constitutional protections guaranteed to them by the Fifth Amendment, and it will provide clarity to courts when determining the constitutionality of remanding inmates to prison
English Company Law: Legal Architecture for a Global Law Market
Get PDFEnglish-architecture company law describes the distinct and diverse group of company or corporate law used in more than 60 jurisdictions worldwide. English-architecture company law provides a robust platform for innovation and development due to its permissive structure, opportunity for choice of law in an entity’s internal governance, and scalability permitting variation for small and large entities. It is the dominant form among International Financial Centers (IFCs), many of which have legal systems with a British connection. This body of law responds to competition and maintains dynamism by engaging its practice community through “learning by doing” and “frictioneering.” An architecture approach permits a broader review of developments in company law that more closely captures the reality of global law practice. The IFC experience of climbing the value chain from tax arbitrage to provide solutions for entities or structures left out in the corporate law of larger jurisdictions provides a useful global governance model to maintain normative, jurisprudential, and regulatory coherence even as it responds to more specialized and unanticipated needs. This Article explores what makes English-architecture company law so successful and how IFCs use it to compete in the global law market
Classical Rhetoric: Then and Now
No full textIn this context, “rhetoric” refers to the theory and practice of persuasion in the public sphere: law courts, legislative assemblies, ceremonial events, and other political venues.1 Rhetoric was taught to young men in the ancient world to prepare them for civic life, which included participating in the resolution of legal disputes and public debate, acting as jurors, and engaging in military service. The majority of the rhetorical theorists represented in this volume date back to this so-called classical period in Greco-Roman culture, which for our purposes spans from the fifth century BCE until after the end of the Roman Empire around one thousand years later. Although these ancient theorists did not claim to invent persuasion itself, they were some of the first in the Western world to develop a rigorous theory to inform the practice of persuasion and educational institutions devoted to teaching it primarily for use in these contexts. Rhetoric’s influence on education—from grammar to graduate school—and legal training in particular evolved but continued uninterrupted in Europe, then in Britain and the United States, from the classical period until the late nineteenth century. By then, US law schools had made an abrupt curricular shift from studying law as an art form to approaching law as a science, the subject of which was judicial decisions. In the twentieth century, the study of rhetoric outside law schools was divided among English, communication, and speech departments. As a result, US law students today have little familiarity with the rhetorical tradition that developed in part to train students for the practice of law. The goal of this chapter is not to provide a comprehensive history of rhetoric; Larson and Tiscione 12 rather, it is to introduce the historical context and significance of the theorists featured in the volume. We focus our attention on the practice of “forensic” or “judicial” rhetoric—advocacy in legal disputes—because that is the focus of the contemporary texts that the authors in this volume excerpt. We also end our history at the beginning of the twentieth century, when a rupture between training in rhetoric and law occurred in the United States that has only gradually begun to heal
Cicero: Legal Stases and the Supreme Court
No full textBrief Excerpt:
During his confirmation hearings in 2005, soon-to-be Chief Justice of the United States John Roberts asserted that Supreme Court justices interpreting laws should behave as metaphorical umpires, not players: “Umpires don’t make the rules; they apply them. . . . And I will remember that it’s my job to call balls and strikes and not to pitch or bat.” Chief Justice Roberts’s claimed stance is one of judicial restraint—that judges should apply the law as the legislature wrote it, not make the law. But judicial decisions regarding the interpretation of statutes—including the Supreme Court’s—lie somewhere between this “apply ” and “make” polarity. To interpret a law is to discern meaning that the law itself has not made explicit. When judges are cast in an interpretive role, it can be hard to tell whether they are “players” contributing to the law’s meaning or umpires who simply “call” meaning as the legislature wrote it. Some judges take very active roles in discerning statutory meaning. Just before his retirement from the bench, US Seventh Circuit Court of Appeals Judge Richard Posner endorsed “judicial interpretive updating” as a method of statutory interpretation in a landmark case holding that sexual orientation discrimination is a form of illegal sex discrimination. Using this interpretive method, judges “update” older laws by giving “fresh meaning” to statutory text that “infuses [it] with vitality and significance today.”1 In contrast, Chief Justice Roberts and others see the proper judicial role as simply to apply the written text. This dichotomy did not concern the Roman orator Cicero, whose rhetorical writings extensively addressed argumentation about written texts. Unconstrained by stock interpretive methods or philosophical debates about judging Chapter 12 191 roles, Cicero’s approach turned on dialogic persuasion. He urged orators arguing written texts to appeal to judges sometimes as umpires, sometimes as players, and often as both. A consummate player himself, Cicero was always ready to switch up his arguments to favor the side he was on. Born Marcus Tullius Cicero (106–43 BCE), Cicero, sometimes called “Tully,” was a leading jurist, orator, senator, politician, rhetorical theorist, and philosopher during the later Roman Republic..
Inmate Assistance Programs: Toward a Less Punitive and More Effective Criminal Justice System
Get PDFHigh recidivism rates in the United States are a well-known and disturbing problem. In this article, we explain how this problem can be mitigated in a cost-effective manner through reforms that make greater use of humane methods that help inmates rather than using more punitive measures. We focus on Inmate Assistance Programs (IAPs) adopted by many states. Some of these programs provide inmates with valuable skill sets to utilize upon their release while others are geared towards treating mental health and substance use disorder problems. IAPs are likely to reduce recidivism by lowering ex-convicts’ need to resort to crime for income as well as reducing their likelihood of committing crimes impulsively under the influence of substances and mental disturbances. However, those who oppose IAPs quickly point out that they involve significant costs, and may reduce the general deterrence effects of criminal punishment. These objections are based on simple economic theories which suggest that IAPs can reduce general deterrence by providing inmates with benefits that partially off-set the expected costs of punishment. Thus, whether IAPs can be used in a cost-effective manner is an empirical question, whose answer depends on the trade-off between its recidivism reducing effects on the one hand, and its financial and potential general deterrence costs on the other. Here, we provide the first empirical analysis of IAPs’ general deterrence effects after explaining why these effects are likely to be insignificant, or even positive, under a more complete economic theory which accounts for knowledge hurdles; discounting of future outcomes; impulsive behavior; loss aversion; and network effects. Our empirical analysis focuses on the impact of increased welfare benefits provided to certain inmates by states which chose to opt out of the 1996 federal ban under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). This act prevented drug offenders from using welfare benefits and food stamps. Using a difference-in-differences design, we find evidence supporting our theory, i.e., no statistically significant negative impact of states’ decisions to opt out of the PRWORA bans on the general deterrence of drug crimes. Subsequently, we build on prior economic theories as well as our empirical observations to explain how the criminal justice reforms that use shorter imprisonment sentences and more frequent use of IAPs can reduce crimes as well as the costs of administering the criminal justice system. The cost savings from reducing sentences for repeat offenders can be used to finance IAPs without significantly affecting deterrence due to the ineffectiveness of lengthy imprisonment sentences. Thus, our analysis suggests IAPs can, in fact, be used in a cost-effective manner to reduce crime, and are valuable and humane tools that policy makers ought to consider as alternatives to punitive measures
New Amateurism
Get PDFThis Article proposes a new model for the legal and economic relationship between college athletes and their schools. The National Collegiate Athletic Association and its member conferences and schools are besieged with legal challenges over rules that restrain the capacity of athletes to earn compensation for their athletic labor and the commercial value of their identities. The legal challenges are extensive and scrutinize membership rules under labor, employment, and antitrust laws. The days of “amateurism” and the “student-athlete” enjoying judicial and administrative deference are over. For college sports to maintain a character distinct from professional leagues, university athletic programs that feature de facto pro teams and those that rely on students who play a sport should be formally separated
The Incoherence of Evidence Law
Get PDFWhat is the purpose of evidence law? The answer might seem intuitive. Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency. But these kindred aims often come into conflict. Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere. Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible? Or does one of evidence law’s aims take precedence over the rest? And if one goal takes priority, what is the role of the subordinate policy objectives?These questions loom over all of evidence law. They establish order for an evidentiary regime and serve as the north star for its substantive contents. Yet these are the very questions that the Federal Rules of Evidence simply ignore. The code fails to elucidate a normative equilibrium among its policy pursuits. And the resulting incoherence has predictable costs. The Federal Rules emphasize verdict accuracy with one set of rules, only to undermine accuracy with another. The code prioritizes legitimacy at certain junctures, but risks substantial illegitimacy elsewhere. The Federal Rules increasingly prove empirically unsound and culturally problematic, yet garner no urgent response from rulemakers. Taken together, the collective incoherence has caused the Federal Rules to chronically underachieve their policy goals.This Article therefore seeks to remedy evidence law’s faulty conceptual foundation. It introduces two optimization frameworks that bring order to evidence law, cohering our evidentiary regime’s policy objectives and bringing existential clarity to the field. Even beyond those theoretical benefits, the optimization models also provide a roadmap for extensive tangible improvements. The models leave no stone unturned as they channel evidence law to its optimum, excising underperforming rules and aligning the Federal Rules with modern cultural norms and scientific understandings. And ultimately, that substantial reform is both the product, and the promise, of a coherent evidentiary regime
