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The article focuses on the Fourth Circuit's ruling in Kiviti v. Bhatt regarding the application of Article III mootness doctrine to bankruptcy proceedings. It discusses the court's reasoning that bankruptcy courts, not being Article III courts, have the statutory authority to adjudicate cases that would be moot under Article III. It also critiques the decision for potentially allowing Congress to circumvent Article III requirements.

In Department of Homeland Security v. Thuraissigiam, the Supreme Court rejected Vijayakumar Thuraissigiam’s challenge to the procedurally threadbare “expedited removal” he faced. The Court relied, in part, on the “entry fiction” — a doctrine under which certain physically present noncitizens are legally considered never to have entered the country and are therefore entitled to limited procedural due process rights. Before Thuraissigiam, the Court had only ever used the fiction where immigration authorities met an arriving noncitizen at the border and authorized physical — but not legal — admission. And it had been widely maligned as a separation-of-powers violation, allowing the whims of Congress to dictate the Constitution’s reach. Yet the Thuraissigiam Court breathed new life into the doctrine. What’s more, it took the unprecedented step of using the fiction against a noncitizen halted by immigration authorities in the interior, rather than at the border. But the Court failed to recognize — let alone justify — this sea change in the fiction’s use. Nor could it. This Essay argues that the entry fiction’s new use effects a constitutional harm distinct from, and less defensible than, that wrought by its historical use. Its premise is that a clandestine entrant has frustrated the political branches’ ability to exercise their otherwise plenary power to decide, at the border, whether she may enter. However lamentable (or not) that may be as a policy matter, the fact remains: she is in. In this context, courts would use the entry fiction to make a normative political judgment too late for the political branches to make — that a noncitizen should not be “let into” the country. And courts would do so despite it being the political branches’ exclusive province to make that call. This Essay argues that such judicial aggrandizement is illegitimate and should be rejected, regardless of whether one holds a formalist or functionalist view of the separation of powers. [ABSTRACT FROM AUTHOR]

The article informs that Seventh Circuit's ruling in United States v. Dingwall advances the feminist reasonableness project by allowing evidence of battering's effects to support a duress defense, expanding the equitable reasonableness analyses beyond traditional standards. The topics include the intersection of feminist perspectives with legal standards, the application of battering evidence in duress defenses and the potential for broader equitable reasonableness analyses in various contexts.

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a standard, not a decision procedure. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them. Distinguishing standards from decision procedures explains originalism’s tolerance for uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory’s normative defenders; and gives us a better picture of originalism’s use in practice. It would be nice if the correct constitutional theory also gave us easy answers in contested cases. But you can’t have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same. [ABSTRACT FROM AUTHOR]

Cooperative federalism programs and spending grants are like contracts. There is a federal offer and a state acceptance; there are terms and conditions, obligations and penalties. And there is a "meeting of the minds" -- a moment when the states consent to a federal offer and the deal is done. But because the states are not monolithic actors -- and many officials, acting through many different political processes, could conceivably speak for the state -- the federal government establishes procedures that dictate which state actors may consent on the state's behalf and how. I call these "consent procedures." These procedures are ubiquitous: they appear in every program and facilitate every grant that requires voluntary state participation. But they are not innocuous. Some require a particular state officer to serve as the state's spokesperson. Others require the states to express their consent by proceeding through certain state-level processes. Still others automatically enroll the states and infer their ongoing consent from their failure to opt out. In Professors Richard Thaler and Cass Sunstein's popular framing, Congress controls the "choice architecture" within which states make the decision to join or reject voluntary cooperative programs. Like "choice architecture," consent procedures do more than operate as processes for registering state consent. Many also shape how states internally discuss, deliberate, and decide whether to join federal programs. They affect the formation as much as the expression of state consent. This Article is the first to identify and critically analyze these procedures. It canvasses their many forms and features. It contextualizes them in the Court's federalism jurisprudence and identifies potential constitutional concerns. It asks whether and under what conditions they are consistent with the core values of American federalism. And it describes ways that different stakeholders -- Congress, federal agencies, and the states -- can navigate them going forward. The federal government's largely unnoticed ability to set consent procedures is a consequential feature of twenty-first-century federalism. Federal-state collaboration is increasingly Congress's regulatory model of choice, and the terms of these collaborations will be the federalism fight of this new century. Consent procedures force to the forefront fundamental questions about the degree of autonomy, self-determination, and respect the states deserve when they are negotiating, defining, and agreeing upon the terms of their cooperative ventures -- questions that become more pressing with each legislative session. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Court of Appeals for the Second District's ruling in the 2014 case U.S. Securities and Exchange Commission (SEC) v. Citigroup Global Markets Inc. which deals with American securities regulations, consent decrees, and the court's determination that a review of an SEC settlement should focus on procedural propriety. America's economic recovery in the wake of a financial crisis is examined, along with judicial enforcement power and agency settlement discretion.

The article discusses the U.S. Supreme Court's (USSC's) ruling in the 2014 case Halliburton Co. v. Erica P. John Fund Inc. which deals with federal jurisdiction and procedure in America, class actions litigation in the U.S., and a presumption of reliance under the U.S. Securities and Exchange Commission's (SEC's) Rule 10b-5. The recovery of damages in a securities fraud class action case is examined in relation to the U.S. Securities Exchange Act of 1934 and rebuttable presumptions.

The article focuses on the U.S. court case Stankewitz v. Wong, which dealt with aggravating impact of evidence in claims of ineffective assistance of counsel. Topics include Sixth Amendment protections, the deficient performance of counsel resulting in prejudice, and the admission of aggravating evidence.

The article focuses on the resolution of the head of state immunity claims and the role of the U.S. Department of State, an agency within the executive branch to fulfill its institutional mandate. It says that the court decides on the claims based on the immunity suggested by the State Department. It also says that implementing a legal presumption can enhance institutional strengths. Moreover, it mentions that difficult cases concerning head of state immunity are likely to arise in the future.

The article focuses on the systematic consideration of court rule's porousness and the design of legal directives in the U.S. It discusses the tradeoff between porous rules and tailored rules as a choice about costs and efficacy. It notes that rules are not concrete walls that can stop all the behavior that are prohibited, instead porous screens are present to conduct inspection which should get through or not. The porousness of the rule are predictable and can shape through the design of the rule together with its remedial regime.

The article presents the case United States v. Nascimento. In this particular case, the First Circuit interpreted the jurisdictional element of the Racketeer Influenced and Corrupt Organizations Act (RICO) to require only a de minimis effect on commerce and upheld the Act's application to noneconomic gang activity under Gonzales v. Raich. While the activity at issue ultimately does fall within the ambit of both RICO and the Commerce Clause, the court should have interpreted RICO more narrowly to ensure congressional accountability and prevent judicial overreaching.

The article presents the case Golan v. Gonzales in the U.S. In this particular case, the Tenth Circuit held that a statue granting copyright protection to certain works that had been in the public domain altered copyright's traditional contours and thus must be subjected to First Amendment scrutiny. Golan's historical approach to discerning copyright's traditional contours is one possible reading of Eldred, and it is preferable to the government's argument that only direct alterations of copyright's internal safeguards require First Amendment scrutiny. However, a third interpretation of Eldred would better serve speech values, requiring First Amendment analysis whenever new legislation impairs speech interests in a manner that copyright's internal protections cannot prevent or cure.

The article presents the case United States v. Washington. In this particular case, the Fourth Circuit created a new route around the Sixth Amendment's Confrontation Clause when it held that the defendant's blood test reports were neither hearsay statements nor testimonial assertions because the statements should have been attributed to the machines that generated the reports and not to the technicians who operated them. However, the Fourth Circuit's analysis failed to properly translate the underlying values and principles of the Confrontation Clause for the modern, technological era in which guilt or innocence can turn on data generated by technicians in processes open to mistake and falsification.

The article presents the case United States v. Alverez-Tejeda. In this particular case, the Ninth Circuit held that an elaborate ruse to seize a car transporting drugs was not unreasonable, thereby correctly denying the defendant's request for suppression of the subsequently discovered contraband. However, the court appeared to apply an ex post reasonableness analysis to the method of the seizure, thus unnecessarily obscuring limits on appropriate police behavior. Moreover, the court could instead have denied suppression by applying the Supreme Court's holding in Hudson versus Michigan without ruling on the underlying Fourth Amendment question, as another Ninth Circuit panel did.

The article presents the case Khulumani v. Barclay National Bank Ltd. in the U.S. In this particular case, a Second Circuit panel held that Alien Tort Statute (ATS) plaintiffs may plead a theory of aiding and abetting liability, but split on whether courts should look to customary international law or federal common law to determine the availability and scope of this liability theory. Although the three separate opinions in Khulumani indicate the difficulty of the issue, the best reading of the key U.S. cases and of customary international law is that courts should look primarily to federal common law to decide questions about aiding and abetting liability in ATS cases.

The article discusses the role of electronic mails in the court case "United States v. Kelley." While investigating a German child pornography suspect, investigators found four illegal e-mails on which a screen name later connected to Kenneth Kelley as a recipient. Based on this information, U.S. investigators gained a search warrant for Kelley's America On Line (AOL) account. Another screen name linked with Kelley's account then appeared in a separate investigation of a child pornography suspect in Kansas. Combining the results of the first search with the information about Kelley's other screen names, the government got a second warrant, authorizing a search for Kelley's home and computer.

The article presents a court case of Marion Hungerford regarding civil disobedience. Hungerford suffers from severe Borderline Personality Disorder. She has a very low capacity to assess reality and a low level of intellectual functioning. Hungerford's case presents the very kind of excruciating moral and professional dilemma that can make for one of life's most difficult and defining choices.

This Article presents a positive theoretical analysis of the relationship between the textual plausibility of an administrative agency's statutory interpretation and the procedural formality with which the agency promulgates that interpretation. The central claim is that, from the perspective of an agency subject to judicial review, textual plausibility and procedural formality function as strategic substitutes: greater procedural formality will be associated with less textual plausibility, and vice versa. Greater textual plausibility increases an agency's chances of a favorable judicial ruling but entails some sacrifice of policy discretion. Procedural formality is costly, but a reviewing court may give an agency more substantive latitude when the agency promulgates an interpretive decision via an elaborate formal proceeding. The court may view formal process as a proxy for variables that the court considers important but cannot observe directly, such as the significance of the interpretive issue to the agency's policy agenda. Because procedural formality and textual plausibility are both costly methods for increasing the agency's odds of surviving judicial review, a rational agency will choose the optimal mix of textual plausibility and procedural formality. Changes that increase or decrease the costs or benefits associated with one of these two variables will therefore have an indirect effect on the other variable as well. This Article develops the theoretical basis for this strategic substitution effect and explores its ramifications for administrative law. [ABSTRACT FROM AUTHOR]

The article examines the litigation of the Hamdan versus Rumsfeld case. A discussion of the relationship between theory and practice involving the Hamdan case is presented. Practical skills that were important as a form of theory to the litigation of Hamdan are presented. The implications of the court's decision on the case is discussed.

Focuses on comparative domestic constitutionalism. Background of comparative domestic cosntitutionalism; Benefits of substance-specific procedural regulation; Judicial review of administrative action; Use of process-generating rules.

Discusses the use of foreign and international law in deciding what is cruel and unusual in 2005. Benefits of considering foreign and international law within a framework of learning by engagement; Suggestions for standards of inquiry in using comparative law in constitutional adjudication; Cautions about the difficulties of developing contextually accurate understandings of foreign law.

Examines the legal and policy considerations surrounding the use of secret evidence in military commissions in the U.S. Judgment issued by Judge James Robertson regarding a petition filed by Salim Ahmed Hamdan, alleged chauffeur of Osama bin Laden; Overview of the Classified Information Procedures Act; Views regarding the disclosure of secret evidence in military commissions.

Examines the U.S. cases State v. Peart, State v. Lynch and State v. Smith, in which courts have been receptive to defendants' allegations that a lack of funding or resources rendered their attorneys' assistance ineffective. Critical flaws suffered by the cases; Facts of each case; Discussion on the decision for the Supreme Court case Gideon v. Wainwright.

Criticizes the U.S. Court of Appeals for the First Circuit in its use of sympathetic textual interpretation of the federal supplemental jurisdiction statute in Ortega v. Star-Kist Foods, Inc., a case that assessed the status of plaintiffs in a federal diversity lawsuit. Facts of the case; Claim that the court supported its textual argument on the Federal Rules of Civil Procedure; Suggestion that the court's sympathetic textualism violates the canon of construction mandating all portions of a statute be given effect.

Argues the appropriateness of using apparent-impropriety in constitutional adjudication. Entanglement with actual impropriety; Cases where the apparent-impropriety concept is relevant on procedure not on the substantive rule of constitutional law that the Court applies; Cases in which apparent impropriety is significant in its own right.

Most bodies of substantive law define citizens' obligations. Criminal law is different. Its primary role is not to define obligations, but to create a menu of options for prosecutors. If the menu is long enough -- and it usually is -- prosecutors can dictate the terms of plea bargains. When that is so, litigants in criminal cases do not bargain in the shadow of the law. Rather, they bargain in the shadow of prosecutors' preferences, budget constraints, and political trends. Law's shadow disappears. [ABSTRACT FROM AUTHOR]

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The oversimplified shadow-of-trial model of plea bargaining must thus be supplemented by a structural-psychological perspective. In this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Some of these influences can be ameliorated, others are difficult to correct, but each casts light on how civil and criminal bargaining differ in important respects. [ABSTRACT FROM AUTHOR]

Describes the convergence upon a unified standard for assessing motions to compel arbitration in bankruptcy proceedings in the U.S. Areas of conflict within the doctrinal structure of bankruptcy proceedings; Contention that courts have misconstrued the U.S. Supreme Court's framework for determining implied repeal of the Federal Arbitration Act; Explanation that the determination whether a claim is amenable to arbitration does not end the judicial inquiry.

Discusses the U.S. Supreme Court case Freethought Society of Greater Philadelphia versus Chester County, which deals with Establishment Clause. Details of the case; Justification made by the Supreme Court on government sponsorship of historical religious practices.

Discusses the case United States versus Gayle, which deals with predicate offenses barring possession of a firearm. Overview of the case; Scope of predicate offenses that allows application of such statute; Ruling of the case.

"Public law litigation"--civil rights advocacy seeking to restructure public agencies--has changed course over the last three decades. It has moved away from remedial intervention modeled on command-and-control bureaucracy toward a kind of intervention that can be called "experimentalist." Instead of top-down, fixed-rile regimes, the experimentalist approach emphasizes ongoing stakeholder negotiation, continuously revised performance measures, and transparency. Experimentalism is evident in all the principal areas of public law intervention--schools, mental health institutions, prisons, police, and public housing. his development has been substantially unanticipated and unnoticed by both advocates and critics of public law litigation. In this Article, we describe the emergence of the experimentalist model and argue that it implies answers to some prominent doctrinal issues, including the limits on judicial discretion in enforcing public law rights and the constraints entailed by separation-of-powers norms. Our interpretation understands public law cases as core instances of "destabilization rights"--rights to disentrench an institution that has systematically failed to meet its obligations and remained immune to traditional forces of political correction. It suggests reasons why judicial recognition and enforcement of such rights might be both effective in inducing better compliance with legal obligations and consistent with our structure of government. [ABSTRACT FROM AUTHOR]

Analyzes the doctrinal and analytical meaning of inexorable zero, a name for a rule of inference. Overview of the case International Brotherhood of Teamsters versus United States, wherein the Supreme Court first uttered the phrase inexorable zero; Theoretical grounds upon which the intuitive appeal of the inexorable zero inference might rest; Typology of the informational value that courts have assigned to the inexorable zero.

Looks at several legal cases tackling the U.S. civil rights act. Ways in which allowing mixed-motive plaintiffs to proceed with anything less than direct evidence would displace the McDonnell Douglas evidentiary scheme; Overview of the Civil Rights Act of 1991; Information on the claim of jurisprudential displacement.

Presents several court cases in the U.S., as of December 2002. Criminal procedure which deals with the constitutionality of temporary seizures; Information on juvenile delinquency adjudication for the purpose of sentence enhancement; Civil remedy for terrorism.

Highlights several cases decided by the United States Supreme Court. Cases dealing with constitutional law; Cases dealing with federal jurisdiction and procedure; Cases dealing with federal statutes and regulations; Examination on the reasoning and views of the justices in deciding the cases; Implications of the rulings.

Provides a response to Professor Fallon's proposed model of constitutional adjudication. Comparison of the Fallon's model with that of Adler's model; Variety of considerations that might be thought to count in favor of the Fallon Model; Rule-dependence of constitutional doctrine.

Examines the proposals of the United States (US) Commission on Structural Alternatives for the Federal Courts of Appeals. Criticism of the proposed changes to the US Ninth Circuit and the US Courts of Appeals; Why the Commission rejected a US Ninth Circuit split; Effects of the proposal.

Discusses the changes in legal practice and legal thought. Forms of social control performing the essential functions of law; Characterization of law; Traditional conception of law.

Discusses several landmark cases involving legal questions and controversies related to federal jurisdiction and procedure decided by the United States Supreme Court as of 1995. Includes `Felker v. Turpin'; `Jaffe v. Redmond'; `Matsushita Electric Industrial Co. v. Epstein.'

Presents information on several law cases in the U.S. Yniguez v. Arizonans for Official English; Mack v United States.

Provides information on the specialty requirements associated with actions in covenant. Review of the evidence showing that actions in covenant could be brought with specialty during the 13th century; Examination of the proposed theories regarding the specialty rule; Alternative view concerning the requirements.

Presents an economic analysis of the rules of collateral estoppel. Description of the Polinsky-Shavell model of litigation-settlement decision-making; Analysis of a defendant's expected total liability and a plaintiff's average recovery; Incorporation of preclusion effects into the basic Polinsky-Shavell model.

Presents an economic analysis of the plaintiff's windfall from a punitive damage litigation. Rationales for punitive damages; Identification of the plaintiff's windfall; Description of the negative effects of a plaintiff's windfall.

Argues in favor of a uniform federal procedure that will allow plaintiffs in the U.S. to obtain discovery of relevant information before a court rules on a shareholder's assertion of wrongful demand refusal. Discussion on the meaning of Rule 23.1 in the Federal Rule of Civil Procedure; Policies underlying the availability of derivative actions and the corporation's termination power; Description of the proposed system of limited discovery in derivative suits.

Examines the statistical probability evidence of court ruling on the case Smith v. Rapid Transit. Accuracy of verdict on the case; Individual-level issues raised by the Smith rule; Moral arguments in favor of the Smith rule.

Discusses several cases in the U.S. in 1990. Sharif v. New York State Education Department; McDougald v. Garber; Board of Trustees of the Employees' Retirement System v. Mayor of Baltimore City.

Identifies some institutional constraints, social circumstances and intellectual developments that may have contributed to the inconstant performance of the U.S. Court under the fifteenth Chief Justice Warren Burger. Teachings in which the Court evidenced its inconsistencies; Details of the fourth amendment; Discussion on the Court's treatment of precedent.

Considers the problems with the U.S. federal court system, including the heavy workload burden on the Supreme Court and the inadequate capacity for achieving a satisfactory measure of uniformity in the national law. Consequences of the heavy workload; Alternatives to an Intercircuit Panel; Grounds in which the critics of structural change rejected proposals for relief of workloads.

Argues that the courts have applied amended U.S. Federal Rules of Civil Procedure too broadly as a tool for docket management and that they have undermined the value of open access to court embodied in the liberal pleading regime of the Federal Rules of Civil Procedure. Explanation of the 1983 amendments; Overview of the case Ring versus R.J. Reynolds Industries, Inc.; Proper purpose and reasonable inquiry requirements.

Examines literature on an anti-crime campaign in China in 1983 and considers its implications for legal thought and practice in China. Methodological problems in the study of Chinese law; Background and history of the anti-crime campaign; Structure of thought in Chinese criminal law.