The 2018 lawsuit Jay-Z brought against the American Arbitration Association (AAA) because the list of twelve arbitrators AAA provided in a breach of contract dispute did not include a black arbitrator highlighted ongoing concerns about the lack of diversity in the arbitrator corps. Given arbitration’s already less formal structure, one method for enhancing its legitimacy…
Category: Commentaries
Inmate Constitutional Claims and the Scienter Requirement
Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials. The Eighth Amendment currently requires convicted prisoners to show that a prison official acted “maliciously or sadistically” to establish an excessive force claim and with subjective “deliberate indifference” to establish a claim of unconstitutional prison conditions. Similar…
Poking Holes in L.A.’s New Condom Requirement: Pornography, Barebacking, and Speech
In November 2012, California voters approved the County of Los Angeles Safer Sex in the Adult Film Industry Act, known as ―Measure B. The law requires producers of erotic adult films to overcome financial hurdles and complete educational training to secure filming permits and also mandates the use of condoms during the production of adult…
Legislative Oversight of a Bill of Rights: A Way to Rectify Judicial Activism
The term ―judicial activism has become a common part of modern American political speech, though it remains ambiguous and can often mean many different things. It most commonly applies to judicial decisions that exceed judicial authority on issues that otherwise would be decided by the legislature and is most frequently invoked when some aspect of…
Managerial Judging and Substantive Law
In this Article, I examine the interface between substantive law and managerial judging. My aim is not to criticize the dominant strain of current scholarship, with its focus on endogenous values in the practice of judging. That work has posed important questions that have properly captured the attention of Academy, Bar and Bench. It is…
The Role of the Judge in Non-Class Settlements
What is the role of the judge in aggregate litigation? That was the question posed to Judge Alvin Hellerstein and several panelists, including myself, at the 2012 Symposium of the Institute of Law and Economic Policy. Judge Hellerstein, who has overseen the litigation arising out of both the September 11 terrorist attacks and the subsequent…
Acknowledgments as a Window Into Legal Academia
Legal scholarship in the United States is an oddity—an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes…
Considering Lesbian, Gay, Transgender, and Bisexual Nominees for the Federal Courts
In April 2010, President Barack Obama nominated Edward DuMont to the United States Court of Appeals for the Federal Circuit, while more than one and a half years later the nominee withdrew. The aspirant possesses impeccable credentials, having argued eighteen Supreme Court matters and captured a unanimous well qualified American Bar Association (ABA) rating. Despite…
To Swear or not to Swear: Using Foul Language During a Supreme Court Oral Argument
Swearing is not the first thing that comes to mind when preparing for a Supreme Court oral argument. But for lawyers arguing certain types of cases, it is something they must seriously consider. The issue comes up when a client claims his First Amendment rights were violated when the government punished him for using foul…
Sell’s Conundrums: The Right of Incompetent Defendants to Refuse Anti-Psychotic Medication
The Supreme Court’s 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial “may be rare.” Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding…
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