Search

The article discusses digital evidence and the history pf private "papers" as special objects of search and seizure in America as of January 2013, focusing on the impact of technology on evidence law in the U.S., as well as information on general warrants and state search and seizure provisions prior to the establishment of the U.S. Constitution (USC). The Fourth Amendment to the USC is addressed, along with probable cause and the U.S. Supreme Court case Boyd v. United States. American common law and constitutional protections in the U.S. are examined.

Congress created the Equal Employment Opportunity Commission to effectuate the ends of Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. To effectuate those ends, Congress vested the EEOC with authority to not only receive, investigate, and conciliate charges of employment discrimination, but also to enforce Title VII against private employers who discriminate by initiating suit against them. After the EEOC receives a charge of employment discrimination, it must, after completing an investigation, attempt to conciliate the charge with a private employer accused of discrimination before initiating suit. The EEOC's "duty to conciliate is at the heart of Title VII," so a critical question arises when the EEOC appears to violate its duty by, for instance, making egregious demands of an employer: what is the proper standard for reviewing whether the agency has satisfied its statutory duty to conciliate? The federal circuit courts of appeals are split between two standards of review-the deferential and the stringent standards of review. This Comment argues that the deferential standard of review is inadequate to protect private employers from the EEOC's potential abuse of its statutory duty. Rather, the stringent standard is the proper standard, and it is consistent with the text, purpose, legislative history, and jurisprudence of Title VII. [ABSTRACT FROM AUTHOR]

The article discusses the California's Supreme Court case Save the Plastic Bag Coalition v. City of Manhattan Beach, wherein it was held that the City of Manhattan Beach acted within its discretion in order to approve the plastic bag ban on the basis of a Negative Declaration (ND), rather than a full Environmental Impact Report (EIR). The court sided with the plaintiff, Save the Plastic Bag Coalition, on the issue of corporate standing under the California Environmental Quality Act (CEQA).

Reports the complexity of patent claim interpretation laws of the United States. Decisions of the Federal court on IMS Technology, Inc. versus Haas Automation, Inc.; Comments on the decision for Kemco Sales versus Control Papers; Discussion on a non-uniform standard for means-plus-function claims assessment.

The Supreme Court's announcement that it would hear two personal jurisdiction cases last Term raised the hope that it would clarify an area of doctrine that has been unclear for 20 years. The Court's decision on general jurisdiction satisfied those expectations at least in part. The Court's specific personal jurisdiction decision, by contrast, only made things worse. This essay provides a critical analysis of the Nicastro decision on specific personal jurisdiction. Part Two surveys some of the history of personal jurisdiction doctrine, with an emphasis on the tension between rules and standards. Part Three grapples with Nicastro and its possible meanings and concludes that Nicastro undermines much of the understanding (such as it was) that shaped the last thirty-plus years of personal jurisdiction doctrine. Part Four suggests an approach to personal jurisdiction based in state interests and relative burdens--one that takes federalism seriously yet at the same time would uphold more assertions of jurisdiction. Part Five turns to a different topic: the rhetoric of Justice Kennedy's and Justice Breyer's opinions. Justice Kennedy repeatedly insisted that personal jurisdiction is about "submission " to sovereign (judicial) authority, and I consider some of the ramifications of this claim, particularly in relationship to Justice Kennedy's opinions in other cases. For his part, Justice Breyer provided examples of people over whom he thought personal jurisdiction would be inappropriate. These examples rest on a set of assumptions about national and regional characteristics, as well as a conception about jurisdiction that assumes a sharp distinction between periphery and metropole. His approach, in other words, rests on a different, more cosmopolitan, but perhaps also more disturbing, idea of sovereignty. [ABSTRACT FROM AUTHOR]

The article presents author's views on the corporate defense counsel and the requirement of protection for German and other foreign companies against trials in the U.S. courts. The lack of lis pendens rule in the global litigation landscape and the need of widening the declaratory judgment in judicial system are discussed. He also mentions about the traditional wisdom of American litigation in Europe.

The article focuses on copyright issues and the legal basis of scholarly publishers on copyright claims. It explores the Copyright Act, explains the copyright ownership of works created by university faculty members and cites cases resolved by the U.S. Supreme Court including the case of Community for Creative Non-Violence (CCNV) non-profit organization and the case of Martha Graham Center of Contemporary Dance Inc. and Martha Graham School of Contemporary Dance Inc. It cites the application of the Copyright Act to faculty-created works analyzing policies such as those that are selectively disclaiming copyrights and those purporting transfer of copyrights. It also notes university copyright implications and recommends the exercise of university rights on public access to scholarly works.

The author discusses the structure and the logic of proofs in trials. He considers various approaches to developing a theory of the law of evidence and proof. He addresses the role of ontology in examining juridical proof in the U.S. He explores the case of humanity writ large and the case of humanity taken singly.

The number of nuisance and negligence tort claims in the US against “Big Oil” companies have grown significantly in the last five years. The Netherlands case of Milieudefensie et al v Royal Dutch Shell represents the first major success of such a claim internationally. While the US cases and Milieudefensie demonstrate starkly different approaches as to how to seek accountability from Big Oil for climate change harms, the increasing judicial engagement on these issues may mean the time is right for similar lawsuits in Canada. Three Canadian common law causes of action are examined: nuisance, negligence, and unjust enrichment. Defences and arguments which stem from society’s (and any potential plaintiff’s) acquiescence and authorization to allow the defendants’ conduct may present difficult barriers to success. This paper focuses on these types of defences, and argues that the responsibility of Big Oil for climate change harms should not be completely vitiated even if governments and plaintiffs have acquiesced, authorized, and arguably contributed to our climate crisis. [ABSTRACT FROM AUTHOR]

Highlights the case between the United States Department of Justice and Nippon Paper Industries of Japan. Background on the `per se rule'; How Nippon creates a conflict within criminal antitrust doctrine; One way courts have eroded the per se rule for foreigners.

The article reports that one of the authors of two plant biology papers that were retracted last year is suing the senior author who withdrew the papers. She is alleging that her former lab chief threatened to ruin her career and then did so with the retractions. In notices published almost a year ago, Daniel Klessig of the Boyce Thompson Institute for Plant Research in Ithaca, New York, and several colleagues said they were retracting two papers, which described a new plant enzyme and had appeared in Cell and the Proceedings of the National Academy of Sciences, because they had been unable to reproduce certain results. The retraction notices, however, were not approved or signed by the first author on both papers, Meena Chandok. Chandok has now launched a legal counterattack. In late August, she filed a civil lawsuit in a U.S. district court in Syracuse, New York, seeking more than $1 million in punitive and compensatory damages from Klessig. Among other claims in her lawsuit, Chandok alleges that after she resigned from the lab in March 2004, Klessig threatened to press misconduct charges and withhold support for her visa-extension application if she didn't help him with further research on the enzyme.

Reports that Agouron Pharmaceuticals, La Jolla, California, has been found guilty of stealing research. Work stolen from Huguette Pelletier when she worked at the University of California at San Diego; Pelletier's work published by Agouron in `Cell'; Decision of a state court jury against Agouron.

The calculation of patent damages lies at the epicenter of patent policy, yet it remains one of the most contentious issues in all of intellectual property law. The dominant legal framework equates a reasonable royalty, the most prevalent patent damage award, to a hypothetical negotiation between the parties at the time infringement began. Commentators and courts generally agree that existing comparable patent licenses, which represent arm 's-length transaction between two unrelated private parties that places a monetary value on the patent, are highly probative in determining a reasonable royalty. The lack of publicly available licensing data, however, limits the ability of courts to identity appropriate comparable licenses. In this paper, we argue that there is a large untapped trove of information on existing patent licensing agreements, many of which are likely more probative to reasonable royalty calculation than currently existing licensing data offered by patent damage experts. This novel source of data is tax-related "transfer prices. ". [ABSTRACT FROM AUTHOR]

This paper argues that the decision of the U.S. Court of Appeals for the 9th Circuit in the case involving confirmation of the cram down plan proposed by Sunnyslope Housing Ltd. Partnership in its Chapter 11 bankruptcy case, has failed in properly interpreting the Supreme Court's holding in Associates Commercial Corp. v. Rash and in understanding the text and structure of the Bankruptcy Code. Topics covered include collateral valuation in reorganizations and Sunnyslope as a lien priority issue.

“Blocking statutes” are foreign laws that prohibit the transfer of information to the United States for purposes of litigation. Though many countries have adopted blocking statutes in recent decades, these statutes have met an ignoble fate in the U.S. courts. Today, U.S. judges routinely order foreign litigants to produce discovery in violation of blocking statutes, thereby subjecting them to a Hobson’s choice: flout a U.S. court order and face sanctions, or violate foreign law and risk civil and criminal penalties. In the past decade, U.S. court-ordered blocking-statute violations have increased by 2,500 percent. This Note presents an empirical analysis of the blocking-statute conflict and provides fresh guidance for foreign states. My study of fifty-six relevant cases reveals that, in determining whether to order litigants to violate blocking statutes, U.S. courts often consider whether foreign states actively enforce them. In at least twenty-three opinions, U.S. courts have found that, because the blocking statute lacked an “enforcement history,” the prospect of prosecution for violating the relevant statute was “slight and speculative.” In all twenty-three opinions, the courts went on to order violations of foreign law. By contrast, in the three opinions where courts found that foreign states actively enforced blocking statutes, courts refused to order their violation. U.S. courts have been sending a message: blocking statutes will not receive deference unless foreign states enforce them. Foreign states could respond by signaling renewed interest in their blocking statutes and penalizing parties that violate those statutes in response to U.S. court orders. If past decisions are any guide, just a few highly publicized prosecutions would have an appreciable effect on U.S. judges’ reasoning. Blocking statutes might thereby be transformed, in short order, from “paper tigers” to blockbusters. [ABSTRACT FROM AUTHOR]

The Fourth Amendment's probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause--and warrant a search or seizure--it must be plausible. The police must be able to explain why the observed facts invite an inference of wrongdoing, and judges must have an opportunity to scrutinize that explanation. Until recently, the explanatory aspect of Fourth Amendment suspicion--"plausible cause"--has been uncontroversial, and central to the Supreme Court's jurisprudence, for a simple reason: explanations have served, in practice, as a guarantor of statistical likelihood. In other words, forcing police to articulate theories of wrongdoing is the means by which courts have traditionally ensured that (roughly) the right "persons, houses, papers, and effects" are targeted for intrusion. Going forward, however, technological change promises to disrupt the harmony between explanatory standards and statistical accuracy. Powerful machines enable a previously impossible combination: accurate predictions unaccompanied by explanations. As that change takes hold, we will need to think carefully about why explanation-giving matters. When judges assess the sufficiency of explanations offered by police (and other officials), what are they doing? If the answer comes back to errorreduction-- if the point of judicial oversight is simply to maximize the overall number of accurate decisions--machines could theoretically do the job as well as, if not better than, humans. But if the answer involves normative goals beyond error-reduction, automated tools--no matter their power--will remain, at best, partial substitutes for judicial scrutiny. This Article defends the latter view. I argue that statistical accuracy, though important, is not the crux of explanation-giving. Rather, explanatory standards--like probable cause--hold officials accountable to a plurality of sometimes-conflicting constitutional and rule-of-law values that, in our legal system, bound the scope of legitimate authority. Error-reduction is one such value. But there are many others, and sometimes the values work at cross purposes. When judges assess explanations, they navigate a space of valuepluralism: they identify which values are at stake in a given decisional environment and ask, where necessary, if those values have been properly balanced. Unexplained decisions render this process impossible and, in so doing, hobble the judicial role. Ultimately, that role has less to do with analytic power than practiced wisdom. A common argument against replacing judges, and other human experts, with intelligent machines is that machines are not (yet) intelligent enough to take up the mantle. In the age of powerful algorithms, however, this turns out to be a weak--and temporally limited--claim. The better argument, I suggest in closing, is that judging is not solely, or even primarily, about intelligence. It is about prudence. [ABSTRACT FROM AUTHOR]

There has been a plethora of substantive copyright cases in the history of the United States. Two of the most important cases in the last few years were: the Kirtsaeng case before the Supreme Court of the United States; and the SCI-HUB case before the United States District Court in the Southern District of New York. This paper addressed the key copyright issues raised in each case, including a discussion of relevant sections of the Copyright Law of the United States (17 U.S.C.) as well as suggestions the book and scholarly journal industries could consider addressing the insidious impact of copyright violations. [ABSTRACT FROM AUTHOR]

In their recent article Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory (CRT) of tort law. A purely descriptive account, CRT holds that tort law is exclusively a scheme of private rights for the redress of legal wrongs and is not a pragmatic mechanism for imposing strict liability or implementing public policy. The present paper challenges this view by revealing critical errors in its perspective, methodology, and analysis. It shows that Goldberg and Zipursky do not objectively observe tort law and uncritically report what they see; instead, they employ a partial perspective to interpret the facts and rely on their own predilections to support their subjective conclusions. Constrained by this biased outlook, Goldberg and Zipursky misinterpret the concept of strict liability, grossly underestimating its pervasiveness, embeddedness, and practical and structural significance. For similar reasons, the authors simply ignore the prodigious presence of instrumental considerations in the core wrongs-based action of negligence, viewing them as marked departures from tort law rather than accretive adaptations to its evolving content. Having exposed the distorted reality of CRT, the paper encourages the authors to recast that theory as a normative enterprise--one which prescribes a treatment for unprincipled instrumentalism and a plan for restoring rights and wrongs to tort law. [ABSTRACT FROM AUTHOR]

Trademark scholars widely agree that our current system for evaluating what rights a trademark owner should have over others’ uses of their (or similar) marks is broken. Courts too readily find too many acts to be infringing even when they’re harmless or actually useful to consumers. Trademark practitioners, meanwhile, while often quite approving of broad interpretations of trademark law, widely recognize that our trademark registration system has significant practical problems. What we haven’t done is try to unite concerns over the expansion of trademark rights with concerns over the registration system and explain their relationship to each other. Registration offers some of the most challenging puzzles in trademark law. Consider: If the mark REDSKINS for a football team is disparaging and its trademark registration therefore invalid, can trademark law nonetheless protect the team against unauthorized uses of the term? This question became more than theoretical when a district court recently upheld the invalidation of the REDSKINS registrations, a ruling now on appeal and likely headed to the Supreme Court. Or suppose the PTO determines that, in the abstract, an applied-for trademark is likely to cause confusion with another previously registered mark. I f the applicant decides to use the mark anyway, without a registration, should the PTO’s determination bind a federal court asked to determine whether the new mark, as actually used, causes confusion with that previously registered mark? The Supreme Court just decided this issue in a way that generated large-scale uncertainty about the new relationship between registration and infringement liability. These questions, and a number of others, highlight the need for renewed attention to trademark registration as such. Registration provides opportunities to limit trademark’s current structurelessness. Specifically, registration works best in a system that doesn’t aim to search out and extirpate every possible instance of confusion, instead recognizing multiple reasons that we might avoid fact-intensive confusion inquiries and either ban or allow certain market behaviors. Moreover, maintaining the registration system requires the investment of substantial government and private resources, which is currently almost irrelevant at the enforcement stage. Applicants and the PTO spend much time and effort crafting the equivalent of an exquisitely detailed origami crane; rather than considering the details, courts then ask the equivalent of “is this paper folded? and move on. Not only is this a waste of resources, but it also leads courts to misunderstand the proper scope of a registration. There are a number of changes, ranging from small tweaks to sweeping statutory reforms and the rejection of the Supreme Court’s ahistorical conclusion that registration is a matter of factual accident rather than an important distinction between types of marks, that could improve the law to the benefit of trademark owners and nonowners alike. [ABSTRACT FROM AUTHOR]

Advancements in information technology allow information to be collected and analyzed quickly within a corporation. As a result, technology also allows the quicker release of information to the Securities Exchange Commission (SEC)--much quicker than the Form 10-K and Form 10-Q releases that are currently required for publicly traded companies. Although publicly traded companies must also disclose certain significant events in Form 8-K, the reporting requirements for publicly traded companies are not nearly as expansive as they could be considering the easy access these companies have to their business information. Even with this in mind, the SEC is well into a reevaluation of Regulation S-K primarily because requirements have accreted over time to become not just burdensome to companies but also blinding to investors who are overwhelmed by the volume of disclosure thrown at them. This paper expounds on these arguments and posits additional arguments for why the SEC should not expand reporting requirements for publicly traded companies. Specifically, expanded requirements are associated with high compliance costs; market forces already induce higher-quality disclosures; the more information companies file with the SEC, the more advantages they give to their competitors; and both the liability concerns and the doctrinal issues already associated with the current requirements will be exacerbated with an expansion of the requirements. [ABSTRACT FROM AUTHOR]

As the global economy is increasingly driven by the commercialization of highly mobile assets, several European governments have sought to encourage investment in and retention of such assets within their domestic borders by offering heavily incentivized tax rates on profits derived from patents and other highly mobile assets. Notable among the European and Asian countries to enact such patent-income tax incentives -- colloquially known as patent box tax regimes -- are Belgium, Luxembourg, the Netherlands, and the United Kingdom. This paper addresses the primary distinguishing features of these four regimes, including their effective tax rates, their scope, and their general qualification requirements and further addresses the preliminary economic results of the enactment of these regimes. Finally, this paper considers the shortcomings in the four regimes and discusses how the United States can capitalize on such shortcomings to enact a more effective patent box tax regime. [ABSTRACT FROM AUTHOR]

After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we sketch a series of studies that should be conducted to increase understanding of what forensic examiners are doing, how accurately they are doing it, and how cognitive bias may affect the work product. We also propose several studies that examine how the specific questions examiners are asked might affect the validity and persuasiveness of examiners' responses. We conclude by affirming the importance of developing a research culture within the forensic sciences that includes a commitment to conducting, participating in, and relying upon high quality empirical research. [ABSTRACT FROM AUTHOR]

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, decided in 2012, the Supreme Court held that the First Amendment supports a “ministerial exception” defense in anti-discrimination suits by clergy against their institutional religious employers. In advance of the decision, the outcome seemed unpredictable, and the Court’s unanimity arrived as a shock. This paper illuminates the result, reasoning, and unanimity in Hosanna- Tabor. We explain how Hosanna-Tabor stands in a long line of decisions, grounded in both the Establishment Clause and the Free Exercise Clause, that prohibit state adjudication of “strictly and purely ecclesiastical” questions. Part I examines why unanimity on the Supreme Court seemed highly improbable. Other divisions on the Court in Religion Clause cases, the brooding omnipresence of Employment Division v. Smith, and the persistent feminist critique of the ministerial exception all suggested that complete agreement within the Court was unlikely. Part II focuses on the key features of Chief Justice Roberts’s opinion for the Court in Hosanna- Tabor, including the central question of which Religion Clause is doing the primary work. Part III offers our explanation and defense of the exception’s jurisprudential foundation, and shows in detail how the courts – before and after Hosanna-Tabor – have steadfastly maintained that foundation and its relevant boundaries. Part IV highlights the intense and continued division within the academy on the meaning and correctness of Hosanna-Tabor. Part IV A analyzes the work of “the Expanders,” who see Hosanna-Tabor as a significant sign that the First Amendment protects a broad freedom of religious entities to resist general regulation. Part IV.B focuses on “the Re- Rationalizers,” who seek to disconnect Hosanna-Tabor from religion-specific norms, and ground the ministerial exception in the freedom of association. Part IV.C turns to “the Dissenters,” who argue that the ministerial exception is not required by the Constitution and is profoundly misguided. Whether designed to build up the decision or tear it down, the scholars’ overstated claims about Hosanna-Tabor may resonate within the culture wars, but have no foundation in the governing law. [ABSTRACT FROM AUTHOR]

This paper reviews sources of distortion in memory for sexual encounters, particularly those between intoxicated participants. We review factors leading to initial misinterpretations of sexual consent including the indirect nature of sexual consent communications, misleading cultural sexual scripts, misinterpretation of passivity, and others. In this context, we consider the way in which alcohol can both contribute to initial misunderstanding and promote specific distortions in memory over time. Finally, we discuss additional influences on memory, including motivations related to self-esteem, self-concept maintenance, or litigation, and the effects of social influence from sources such as friends, forensic interviewers or therapists. [ABSTRACT FROM AUTHOR]

This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties' ability to regulate procedure by contract (at issue in the Supreme Court's recent Rent-A-Center decision) and the scope of an arbitrator's ability to fill gaps in parties' procedural contracts (at issue in the Supreme Court's recent Stolt-Nielsen decision). At an empirical level, this paper taps a largely unexplored database of credit card contracts available at the Federal Reserve in order to examine actual practices in the use of procedural contracts. [ABSTRACT FROM AUTHOR]

In two related decisions in Chamber of Commerce of the United States of America v. Securities and Exchange Commission (SEC), the District of Columbia Federal Court of Appeals ruled that the SEC had not fully complied with some provisions of the Administrative Procedures Act when it required that the boards of investment companies managing mutual funds have at least 75% of their membership and the Chairman be independent directors. In preparation for renewed rule making, the Office of Economic Analysis of the SEC prepared a Power Study to respond to an industry-sponsored report claiming that the returns of funds with independent boards and chairs are not superior to funds with boards dominated by management. The Power Study concluded that the available studies on the effectiveness of independent board members do not have sufficient statistical power to detect a meaningful difference in the returns of the two types of funds. This paper demonstrates that the method used by the SEC in their power calculation is not correct, unless a very restrictive condition that rarely occurs in practice holds. When the appropriate power formulas are used, the expected power of studies of the same size as the ones examined by the SEC is actually lower than the corresponding results of the SEC. Thus, the results in the paper actually strengthen the argument that the SEC is advocating. The relevance of both the SEC and the industry studies to the main issue in the case is also questioned in the discussion. [ABSTRACT FROM PUBLISHER]

Since the early 1980s, numerous commentators both inside and outside of academia have called attention to a staggering number of civil cases filed in federal trial courts arising under civil rights laws, particularly § 1983 and Title VII. Often, this observation is coupled with a complaint about excessive numbers of "frivolous" lawsuits. The perception has some basis in fact: statistics show that the number of private civil rights cases began growing exponentially in the 1 960s, largely as a result of the Supreme Court's decision in Monroe v. Pape, and that cases arising under § 1983 and Title VII currently account for about fifteen percent of all federal district court filings. Furthermore, plaintiffs in these cases are disproportionately unsuccessful compared to plaintiffs bringing other types of claims. These facts could be seen as confirming the hypothesis of a burgeoning mass of frivolous claims; however, § 1983 and Title VII cases spend more time on courts' dockets and consume more judicial resources than average cases, suggesting that they have enough merit to survive early attempts by defendants to have the cases dismissed. In Part I of this paper, I use statistics and other scholarship to argue that, rather than a mass of frivolous civil rights cases, trial courts are instead faced with a mass of cases that have some merit, some basis in fact, but ultimately fail to satisfy all of the formal requirements for recovery under § 1983 or Title VII. The plaintiffs who bring these cases have often experienced action by someone in a position of relatively greater social prestige and power that calls into question their status as an equal member of society, entitled to an equal share of rights and dignity. At the same time, they often cannot meet all of the prerequisites to recover damages or obtain an injunction. They have experienced harm without a legally cognizable injury (in the sense of the Latin maxim damnum absque injuria). For this reason I call this group of cases "personal status litigation": the plaintiffs come to court and fight what are often losing battles because they seek affirmation of their personal status in society from the court, society's designated articulator of public legal values. Their cases present a dilemma, in that the court is faced with an apparently inescapable choice between doing justice (at the expense of the consistency of the law and the democratic values served by the traditional separation of powers) and following the letter of the law (and reaching a seemingly harsh result). The remainder of this paper is devoted to exploring a third way. The court can uphold the formal requirements of the law and also promote justice if it recognizes that its written opinion can, in itself, be a form of remedy. Part II discusses the role of the written opinion in Legal Process scholarship and other schools of thought. I argue that, beyond any instrumental value it may serve, the written opinion reflects deeply-seated norms of participation and representation in the adjudicative process. Furthermore, the literature dealing with litigants' experiences of adjudicative processes suggests that litigants place a great deal of value on the opportunity to be heard and to tell their story in the court's public forum. Finally, I discuss narrative scholarship and its central contention that storytelling promotes dignity and inclusiveness, particularly with respect to marginalized or "outsider" groups. The last section of this paper applies these insights to the problem of personal status litigation. I argue that courts can provide a "remedy" that is especially relevant to the reasons that personal status plaintiffs come to court by writing opinions that are attentive to and mirror plaintiffs' stories and experiences, giving voice to their narratives and affirming their status as equal, valued members of society. [ABSTRACT FROM AUTHOR]

Secondary economic damages have not generally been considered compensable in damage litigation. The reluctance to award secondary damages falls in part on the economics profession, since economists have found it difficult to measure these damages, and even to agree on their meaning. This paper addresses both the meaning and measurement of secondary damages in the context of a recent U.S. Supreme Court case where one state successfully sought secondary damages resulting from failure to deliver water under an interstate water compact. This paper describes the case and considers whether this decision should be treated as a precedent for other damage cases. [ABSTRACT FROM AUTHOR]

This paper explores the neglected area of representations of Jews and Jewishness in English legal cases. In considering judicial knowledge of ‘the Jew’, I ask three primary questions. First, how do English judges understand and represent ‘the Jew’ and in relation to what material factors do these understandings and representations change? Second, how do English judges construct racial knowledge, what rhetorical technologies are fashioned and deployed? Third, are the effects of contemporary judicial racializations of Jewishness different in substance from earlier ones? The purpose of this paper is to study the encounter between English judges and ‘the Jew’ in the twentieth century, eschewing a reading that centres ‘antisemitism’ or ‘discrimination’ in favour of one that focuses on the complex and contradictory narratives in these judgments and the kinds of work these narratives do. [ABSTRACT FROM AUTHOR]

This paper demonstrates that an important and overlooked guide to understanding Canadian and US Supreme Court decision making in tax cases is the "default," or the party to whom the court will decide in favour of if tax language is ambiguous. While statutory interpretation methods influence the overall manner in which courts approach tax-law decision making, the default is a more concrete guide to evaluating Canadian and US Supreme Court decisions. The paper first explores the statutory interpretation approaches referenced in Canadian and American Supreme Court tax law cases. The paper then examines the histories of defaults, including the cases in which they emerged and the rationales given for their adoption. Third, based on original research, the paper concludes that defaults have a profound effect on income tax decisions by, in Canada, the Supreme Court favouring the taxpayer and, in the United States, the Court deferring to the Internal Revenue Service. [ABSTRACT FROM AUTHOR]

In addition to "persons, houses, [and] papers," the Constitution protects individuals against unreasonable searches and seizures of "effects." However, "effects" have received considerably less attention than the rest of the categories in the Fourth Amendment. Recent Supreme Court opinions on Fourth Amendment searches reintroduced the word "effects," and yet they did so without a definition of the word, an understanding of its history, or a clear doctrinal theory. In the absence of a coherent approach to "effects," many lower courts apply the standard Fourth Amendment test: they ask whether the government has violated the claimant's "reasonable expectation of privacy." However, many lower courts protect or decline to protect personal property by examining the individual's expectation of privacy in the property's physical location. These courts hold that individuals have no expectations of privacy in personal property that is unattended in public space. This Article argues that personal property in public space should receive greater constitutional protection than is provided by these cases, because of the privacy and security interests inherent in ownership and possession. The history surrounding the Fourth Amendment provides evidence that the protection against unreasonable searches and seizures was connected to the law prohibiting interferences with another's possession of personal property, including dispossession, damage, or unwanted handling. To restore this connection, this Article uses guidance from personal-property law to propose a framework for identifying Fourth Amendment interests in effects based on their qualities and environment. This intervention would grant effects the constitutional protection they deserve. [ABSTRACT FROM AUTHOR]

The article discusses the concept of class action federalism in America as of 2015, and it mentions the impacts that the U.S. Class Action Fairness Act (CAFA) is having on federal courts and litigation in the country. A separation of powers doctrine is examined, along with class certification claims and mass tort nationalism in America. Several class action cases are assessed, including Smith v. Bayer Corp., Zahn v. International Paper Co., and Amchem Products Inc. v. Windsor.

This Comment explores the intricacies of the sovereign citizen movement, often through the lens of the recent Oregon case, United States v. Julison. The Comment begins by explaining the background and history of the movement, starting with its inception in the 1970s. The modern sovereign movement is known for its strange beliefs regarding the legitimacy of the federal government--beliefs that are often perpetuated through violence, fraud, and harassment. Next the Comment delves into the problem of fraud and its costs, with a focus on the accompanying criminal prosecutions along with recent developments in sovereign citizen cases. The Julison case provides the perfect opportunity to explore the question of mens rea in tax fraud cases, and it raises interesting questions with respect to the assertion of the good-faith defense by sovereign-citizen defendants. The Comment continues to develop these themes as it examines the problems that courts have encountered in instructing juries on "good faith" and "deliberate ignorance" in these cases. Next the Comment surveys the various methods for combatting paper terrorism, including prefiling administrative discretion, post-filing administrative relief, postfiling expedited judicial relief, and enhanced criminal and civil penalties. Most states apply some combination of these techniques in order to achieve a more comprehensive solution to the problem. Finally, the Comment concludes with some brief comments and suggestions for moving forward in the effort to address this problem. [ABSTRACT FROM AUTHOR]