Loyola University of Chicago law journal. Loyola University Chicago. School of Law最新文献

{"title":"The False Allure of Settlement Pressure","authors":"Nicholas Almendares","doi":"10.2139/SSRN.2938716","DOIUrl":"https://doi.org/10.2139/SSRN.2938716","url":null,"abstract":"The threat of “blackmail” or “in terrorem” settlements has shaped the law, leading courts to conclude that if the plaintiff does not appear likely to win the case, then the litigation should be halted at an early stage. This Article questions the established logic of settlement pressure. After clarifying the concept and presenting the strongest case for it, I show that it cannot serve as the basis for wide-ranging civil procedure doctrines. Doing so has perverse results, such as privileging the defendant’s idiosyncratic tastes and helping corporate managers hide important facts from their shareholders. In addition, settlement pressure is not the serious problem that it has been characterized as: rather than being blackmail, it is more analogous to litigation insurance or hiring expensive attorneys. The doctrines based on settlement pressure, therefore, lack a sound foundation, and the phenomenon itself is not a dire threat that the law must step in to counteract. Even in the context of class actions, the most favorable case for settlement pressure arguments, an unlikely case should be allowed to proceed, provided it sets out a coherent, bona fide class claim. A number of prominent decisions, such as Wal-Mart Stores, Inc. v. Dukes, ultimately depend on settlement pressure, and ought to be reconsidered.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"211 ","pages":"271"},"PeriodicalIF":0.0,"publicationDate":"2017-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72444761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is Our Legal Order Just Another Bureaucracy","authors":"R. Burns","doi":"10.2139/SSRN.2792338","DOIUrl":"https://doi.org/10.2139/SSRN.2792338","url":null,"abstract":"A classic formulation portrays bureaucracy as the characteristic modern institution, incomparably effective as the home of instrumental rationality and domination through knowledge. We often understand our legal order as controlling bureaucracy by insisting that bureaucrats “play by the rules.” Courts, in this view, uphold the rule of law in the face of a threatening purely instrumental reason. However, an understanding of the courts as the enforcers of legal rules fails to offer an account of how the legal order itself is not just another bureaucracy. This essay argues that we must look elsewhere for an understanding of the legal order as something more than bureaucratic.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"114 1","pages":"413"},"PeriodicalIF":0.0,"publicationDate":"2016-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78627685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer","authors":"D. Kopel","doi":"10.2139/SSRN.2564819","DOIUrl":"https://doi.org/10.2139/SSRN.2564819","url":null,"abstract":"This article provides the first legal biography of lawyer and Senator Lyman Trumbull, one of the most important lawyers and politicians of the nineteenth century. Early in his career, as the leading anti-slavery lawyer in Illinois in the 1830s, he won the cases constricting and then abolishing slavery in that state; six decades later, Trumbull represented imprisoned labor leader Eugene Debs in the Supreme Court, and wrote the Populist Party platform. In-between, Trumbull helped found the Republican party, and served three U.S. Senate terms, chairing the judiciary committee.One of the greatest leaders of America’s “Second Founding,” Trumbull wrote the Thirteenth Amendment, the Civil Rights Act, and the Freedmen’s Bureau Act. The latter two were expressly intended to protect the Second Amendment rights of the former slaves. Another Trumbull law, the Second Confiscation Act, was the first federal statute to providing for arming the freedmen. After leaving the Senate, Trumbull continued his fight for arms rights for working men, bringing Presser v. Illinois to the U.S. Supreme Court in 1886, and Dunne v. Illinois to the state Supreme Court in 1879. His 1894 Populist Party platform was a fiery affirmation of Second Amendment principles. In the decades following the end of President James Madison’s administration in 1817, no American lawyer or legislator did as much as Trumbull in defense of Second Amendment. Yet Lyman Trumbull had little personal interest in firearms, and never considered the Second Amendment to be one of his major issues. So did Lyman Trumbull become the leading Second Amendment lawyer of the time? His lifelong cause was “the poor who toil for a living in this world.” When Trumbull examined America in the nineteenth century, he saw that the rights of the toilers could always be trampled, unless they had the right to arms, individually and collectively. The story of Lyman Trumbull’s career begins in the Age of Jackson and ends with Trumbull’s protege, William Jennings Bryan, winning the Democratic presidential nomination in 1896. It is a story of a man who changed political parties five times, while holding fast to his fundamental principle of free labor. Even today, “The Grand Old Man of America” continues to shape our understanding of constitutional liberty.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"80 1","pages":"1117"},"PeriodicalIF":0.0,"publicationDate":"2016-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74835941","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Just Listening: The Equal Hearing Principle and the Moral Life of Judges","authors":"Barry Sullivan","doi":"10.2139/SSRN.2918414","DOIUrl":"https://doi.org/10.2139/SSRN.2918414","url":null,"abstract":"In Laird v. Tatum, 409 U.S. 824, 834 (1972), then-Justice Rehnquist famously declined to recuse himself in a case in which he had been intimately involved, and about which he had spoken publicly. In a spirited defense of his position, he wrote: “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” The point is an important one. Clearly, we do not think that judges should have minds that are totally unformed. On the other hand, open-mindedness or impartiality is universally recognized as a critical component of judicial decision-making. This essay seeks to explore a question at the heart of the judicial process: To what extent do we expect judges to have an open mind about difficult questions of law, or, at least, to be able to give a fair hearing to interpretations of law with which they might be predisposed to disagree? Or, more generally, what do we expect of judges in their decision-making?The essay proceeds to consider this question through a discussion of two novels: The Heather Blazing by Colm Toibin and The Children Act by Ian McEwan. The main character in The Heather Blazing is an Irish High Court judge who decides three significant cases in the course of the novel. The main character in The Children Act is an English High Court judge who also decides three difficult cases during the course of the novel. Through a close reading of the two novels, the essay explores what it is that we expect of judges, and, in particular, how we expect them to strike the balance that is inevitably required to be struck between open-mindedness and the (sometimes false) sense of certainty that comes from expertise. Among other things, the essay reflects on Justice Holmes’s observation that a key difference between his and Justice Brandeis’s approaches to their work was that Justice Brandeis wanted to know as much as he possibly could about a case, whereas Justice Holmes “wish[ed] to know as little [about a case] as [he could] safely go on.”","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"110 1","pages":"351"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87682149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Enduring Ambiguities of Antitrust Liability for Worker Collective Action","authors":"Sanjukta Paul","doi":"10.2139/SSRN.2649275","DOIUrl":"https://doi.org/10.2139/SSRN.2649275","url":null,"abstract":"This Article examines the origins of the rule that antitrust law regulates and largely prohibits collective action by workers who fall outside the bounds of employment, and who therefore presumptively do not receive the benefit of the labor exemption from antitrust. The threat that organizing for decent wages and working conditions will be prosecuted as price-fixing is a powerful constraint upon such workers' ability to take action to change their circumstances. Antitrust has historically structured the nature and content of labor regulation in this country, and it is currently poised to do so again in a new form. It did so directly and punitively in the Gilded Age. During the New Deal era, the default rule that worker collective action is illegal under antitrust actually solidified its subterranean hold while the law of the labor exemption mostly blunted its practical effects. In today's deregulation era, it is of increasing significance in regulating workers who fall outside the bounds of the NLRA (and other employment and labor law); as a limit upon new forms of labor regulation that would bring these nontraditional workers within their scope; and as a potential baseline for labor law reform generally. Antitrust has irreducible political and normative content, despite its sometime claim of being justified on economic grounds that are independent of politics and moral norms. The key cases show that such extrinsic normative considerations operate, albeit tacitly, in antitrust's relationship to labor, which has changed over time according to the specific policy project embraced by decision-makers. The default rule that workers and other less-powerful economic actors are subject to the heavy hammer of the price-fixing doctrine for cooperation in pursuit of a decent livelihood ought to be revisited.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"60 1","pages":"969"},"PeriodicalIF":0.0,"publicationDate":"2015-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91139056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Going Retro: Abolition for All","authors":"K. Barry","doi":"10.2139/SSRN.2598357","DOIUrl":"https://doi.org/10.2139/SSRN.2598357","url":null,"abstract":"The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so. Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes. State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row. In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty.Some states, however, are “going retro.” In 2012, California’s Proposition 34 would have applied retroactively, reducing over 700 death row prisoners’ sentences to life without parole (“LWOP”). More states should attempt to pass retroactive death penalty repeals, but they are not doing so, for two reasons. The first is political: legislators are not pursuing retroactive legislation because they do not have the votes. The second reason is legal: legislators are not pursuing retroactive legislation because they believe that the separation of powers and state constitutional prohibitions on retroactive laws forbid it. These arguments are reasonable ones, and they reach far beyond the death penalty sphere - to retroactive crack sentencing laws and retroactive juvenile LWOP sentencing laws, among others.This Article argues that neither the separation of powers nor state constitutional prohibitions on retroactive laws prohibits states from retroactively repealing their death penalties. While politics may prevent legislatures from pursuing retroactive repeal of the death penalty, the law should not. As California’s 2012 repeal bill makes clear, “fairness, equality, and uniformity” demand retroactivity. They demand abolition for all.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"48 1","pages":"669"},"PeriodicalIF":0.0,"publicationDate":"2015-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79916576","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Linking Patent Reform and Civil Litigation Reform","authors":"Gregory Reilly","doi":"10.2139/SSRN.2568443","DOIUrl":"https://doi.org/10.2139/SSRN.2568443","url":null,"abstract":"Patent reform increasingly focuses on discovery. Discovery is perceived as disproportionately expensive and burdensome in patent cases. Excessive discovery is said to fuel so-called “patent trolls” and impose an unhealthy tax on innovation and competition. These supposedly exceptional problems have led to exceptional patent-only reform proposals, such as delaying most discovery for over a year and reversing the 75-year old allocation of discovery costs. Treating patent litigation as exceptional has a siloing effect. Patent reform debates ignore parallel debates over general civil litigation reform that raise the same arguments about disproportionately expensive and burdensome discovery and propose their own set of reforms. This Article links patent reform to civil litigation reform, arguing that patent discovery is not exceptional in its costs, supposed effects, or causes. Instead, patent discovery is representative of a subset of discovery-intensive civil cases. The main problem with discovery in patent cases is not abusive tactics of “patent trolls” or inherent technical complexity but rather complex and open-ended remedial doctrines. Doctrinal complexity is not unique to patent litigation. Pinpointing the source of patent discovery problems also suggests a solution – delaying costly and burdensome remedial discovery until after liability is established. This solution need not be limited to patent cases. Greater use of staged litigation – litigating and resolving some potentially case-dispositive issues before any discovery or other litigation occurs on more discovery-intensive issues – is a potentially valuable tool for reforming general civil litigation. Notably, staged litigation preserves the plaintiff’s access to information and right to a jury trial, overcoming objections to other efforts to reduce civil litigation costs, like Twombly/Iqbal plausibility pleading.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"24 1","pages":"179"},"PeriodicalIF":0.0,"publicationDate":"2015-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82818055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Condoning the Crime: The Elusive Mens Rea for Complicity","authors":"Alexander Sarch","doi":"10.2139/SSRN.2537578","DOIUrl":"https://doi.org/10.2139/SSRN.2537578","url":null,"abstract":"There is a long history of disagreement about what the mens rea for complicity is. Some courts take it to be the intention that the underlying crime succeed, while others take mere knowledge of the underlying crime to be sufficient. Still others propose that the mens rea for complicity tracks the mens rea of the underlying crime — the so-called “derivative approach.” However, as argued herein, these familiar approaches face difficulties. Accordingly, we have reason to continue our search for the elusive mens rea for complicity. This paper develops a new account of the mens rea for complicity, drawing on an older approach informed by agency law principles. In particular, I argue that a distinct attitude of condoning the underlying crime is best seen as the mens rea for complicity. This approach yields a more principled framework for determining when accomplice liability is warranted than the existing approaches do. Moreover, it demonstrates that certain reforms to the current legal regime are warranted. Most importantly, the law should recognize that complicity comes in degrees. While reforms of this sort have been previously proposed for reasons relating to causation, this article shows that different levels of complicity must also be recognized on independent mens rea grounds.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"401 1","pages":"131"},"PeriodicalIF":0.0,"publicationDate":"2015-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79618778","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0","authors":"E. Imwinkelried","doi":"10.2139/SSRN.2532762","DOIUrl":"https://doi.org/10.2139/SSRN.2532762","url":null,"abstract":"Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party’s misconduct is admissible only if it has a “legitimate tendency” to establish the accused’s innocence. Today most jurisdictions follow a version of the “direct link” test. Under this test, standing alone evidence of a third party’s motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime. Moreover, the evidence that the accused proffers to support the defense must satisfy both the hearsay and character evidence rules. If the defense offers out-of-court statements describing the third party’s conduct, the statements must fall within an exemption from or exception to the hearsay rule. If the defense attempts to introduce evidence of the third party’s perpetration of offenses similar to the charged crime, the defense must demonstrate that the evidence is admissible on a noncharacter theory under Federal Rule of Evidence 404(b)(2).However, a new version of the SODDI defense has emerged – SODDI 2.0. When the defense relies on this theory, the accused makes a more limited contention. The defense does not contend that reasonable doubt exists because there is admissible evidence of the third party’s guilt. Rather, the defense argues that there is reasonable doubt because the police neglected to investigate the potential guilt of a third party who was a plausible person of interest in the case. Two 2014 decisions, one from the Court of Appeals for the Second Circuit and another from an intermediate Utah court, approved this version of the defense. Even more importantly, both courts ruled that the trial judge violated the accused’s constitutional right to present a defense by curtailing the accused’s efforts to develop the defense at trial. The advent of this new version of the defense is both significant and controversial. The development is significant because the defense can often invoke this version of the defense when the restrictions on the traditional SODDI defense preclude the accused from relying on the traditional defense. As the two 2014 decisions point out, when the defense invokes the 2.0 version of the defense, the hearsay rule does not bar testimony about reports to the police about the third party’s misconduct. Under the 2.0 version of the defense, those reports are admissible as nonhearsay to show the reports’ effect on the state of mind of the police officers: putting them on notice of facts that should have motivated them to investigate the third party. Similarly, when the de","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"73 1","pages":"91"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86328979","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Virtue in Bankruptcy","authors":"M. Bruckner","doi":"10.2139/SSRN.2232102","DOIUrl":"https://doi.org/10.2139/SSRN.2232102","url":null,"abstract":"In response to a gap in the corporate bankruptcy literature, this Article offers a new positive theory of corporate bankruptcy law based on virtue ethics. The dominant theory of corporate bankruptcy law — the creditors’ bargain model — is necessarily incomplete because it does not account for bankruptcy courts’ equitable and discretionary powers, or for bankruptcy courts’ need to consider decision-making criteria other than economic efficiency. By contrast, virtue ethics offers insights about these features of corporate bankruptcy law for at least three reasons. First, bankruptcy courts appear to give content to bankruptcy laws by using virtue ethical principles. Second, virtue ethics’ decision-making process — practical wisdom — provides insights into how bankruptcy judges balance concerns about efficiency, justice, and fairness when reaching decisions. This is particularly true when the bankruptcy court’s equitable jurisdiction or discretionary powers are implicated. Third, virtue ethics’ symbiotic consideration of means and ends parallels the process bankruptcy judges are called on to use when exercising their discretionary or equitable powers under numerous provisions of the Bankruptcy Code.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"40 1","pages":"233"},"PeriodicalIF":0.0,"publicationDate":"2013-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90588888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}