• Selected
• Entire List

Abstract:
The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of peace statutes and ordinances.

This Article argues that, although most convictions are ultimately overturned on appeal, the pursuit of criminal sanctions for use of the middle finger infringes on First Amendment rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense. Indeed, the Supreme Court has consistently held that speech may not be prohibited simply because some may find it offensive. Criminal law generally aims to protect persons, property, or the state from serious harm, but use of the middle finger simply does not raise these concerns.

middle finger, fuck, fuck finger, flipping the bird, digitus impudicus, constitutional law, first amendment, pornography, obscenity, disorderly conduct, overcriminalization, obscene gestures, the bird, one-finger salute, police training, offensive conduct, free expression, phallic symbol

Abstract:
Law school faculty personnel decisions are often controversial. Debates may be heated, votes may be close, and ill will may be incurred. One way to avoid this enmity and to promote or maintain a collegial atmosphere is to use secret ballots for votes on hiring, retention, promotion, and tenure. The use of secret ballots, however, allows for the possibility of voting for the wrong reasons (e.g., bias, discrimination). But open voting carries the same possibility (e.g., political correctness, fear of reprisals).

This Article discusses the evolution and significance of the secret ballot and considers the arguments for and against its use on law school faculties. It also presents the results of an original survey (with a 97% response rate) on the use of secret ballots in faculty personnel decisions at all law schools in the United States. Comments from the survey and conversations and email exchanges between the author and faculty and administrators across the country reveal a subtext that involves, among other things, the need for candor, openness, fairness, and sensitivity, on the one hand, as well as concerns about politics, frustration, anger, power, dominance, and control, on the other hand.

The Article concludes that, with secret ballots - at the very least, with an open and honest debate about whether to conduct secret ballots - may come not only candor, but also greater harmony and collegiality.

voting rights, employment, academic freedom, political correctness, secret ballot, Australian ballot, law school administration, legal education, faculty governance

Abstract:
The Bluebook's introductory citation signals are essential to effective legal discourse. The choice of signal can influence not only the interpretation of cited cases, but also the path of law. In this Article, Professor Ira Robins examines one commonly used signal: the cf. After exploring its semiotic function, he details the multitude of ways in which this signal has been used and misused. He argues that lawyers' and judges' careless use of the cf. leads to confusing and often incoherent developments in the law, and concludes by proposing a precise working definition for this irksome, but potentially powerful, citation signal.

Semiotics, Signal, Legal Reasoning, Bluebook, Common Law, Introductory Signals, Legal Citation

Abstract:
This article discusses the history of the Supreme Court's unpublished internal rules; examines how ambiguity and inconsistent application of these rules leave attorneys, petitioners, and observers confounded; and recommends an end to the era of procedural postulating. For too long, the Supreme Court has followed rules that either are not stipulated by Congress or are not clarified by the Court. Moreover, the Court has adhered to these written but unpublished rules with varying levels of commitment. This article focuses on how the internal rules are applied to various types of cases presented for review - particularly in the context of habeas corpus and the death penalty - and the effect that these rules have on the outcome of the cases the Court accepts.

Supreme Court, Supreme Court Internal Rules, Internal Rules, Procedural Rules, Robert Lee Tarver, In Re Tarver, Habeas Corpus, Death Penalty, Certioriari, Stay of Execution

Abstract:
In 1968, Congress enacted the Federal Magistrates Act to enhance judicial efficiency in the federal courts. Since then, some judicial functions delegated to magistrate judges have been challenged on constitutional grounds: while federal district judges, appointed pursuant to Article III of the United States Constitution, are protected with life tenure and undiminishable salary, thereby enhancing judicial independence, federal magistrate judges, appointed pursuant to Article I, have no such protection. The most recent major challenge to magistrate judge authority came in 2001, when the United States Court of Appeals for the Fifth Circuit, in United States v. Johnston, decided that referral to magistrate judges for final disposition of federal prisoner 28 U.S.C. § 2255 post-conviction motions, with the consent of the parties, violates Article III.

This Article traces the evolution of the Federal Magistrates Act, explores constitutional and other challenges that have arisen under the Act and how the courts have resolved them, and reviews the unique nature of § 2255 motions. Professor Robbins argues against referral of § 2255 motions to magistrate judges for final disposition, and concludes with recommendations of other ways to deal with these motions without overloading the judicial system.

Magistrate Judges, Article III, Federal Prisoners, Section 2255, 18 USC 2255, United States v. Johnson

Abstract:
The article examines the considerations that must be addressed when evaluating whether to adopt a system of post-tenure review in universities generally, and at law schools in particular. This is an important issue today, in light of the mushrooming debate not only on accountability in education, but also on the viability of the concept of tenure itself. Part I of the article discusses the primary issues prompting the post-tenure review debate and explains the growing controversy. Part II explores the arguments articulated by faculty and administrators for and against post-tenure review. Part III presents theoretical models of post-tenure review and highlights prominent aspects of systems currently utilized in the United States. Part IV compares these theoretical models to the existing systems and considers how post-tenure review might be adapted to the unique milieu of the law school. Part V presents studies that have evaluated post-tenure review systems. Part VI discusses the kind of professors that post-tenure review might identify and suggests potential responses to deficient performance, including alternatives to post-tenure review.

Legal Education, Law Professor, Scholarship, Teaching, Faculty, Tenure, Professional Development

Abstract:
This article demonstrates that concurring in result (CIR) without issuing a written opinion, a seemingly unremarkable practice used by many appellate judges, undermines the judicial process and can be fundamentally unfair to litigants. After examining the CIR practice and its ramifications, this article argues that CIR voting is justifiable in few, if any, circumstances. Part I first discusses the general prevalence of CIR in state courts throughout the country. Part I then contrasts states in which CIR voting is employed frequently with states in which the practice is virtually nonexistent. Part II addresses factors that may be fueling the CIR practice—including unmanageable dockets, a lack of collegiality on some courts, and even judicial apathy or laziness. Part III demonstrates that CIR thwarts the judicial process, undermines stare decisis, and spawns future litigation on important issues that should have been resolved previously. Part IV argues that, at least where a criminal defendant's liberty is at stake, a CIR swing vote may deprive that individual of due process of law. Finally, Part V recommends that state courts promulgate rules prohibiting CIR or providing guidelines for narrow instances in which the practice may be authorized.

Judges, Opinion, Concurring, Due Process, Fundamental Fairness

Abstract:
The grand jury practice of naming individuals as unindicted co-conspirators routinely results in injury to reputations, lost employment opportunities, and a practical inability to run for public office. Yet, because these individuals are not parties to a criminal trial, they have neither the right to present evidence nor the opportunity to clear their names. Thus, Professor Robbins argues that the practice violates the Fifth Amendment guarantee that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law[.]" While prosecutors may offer many justifications to support the practice of naming unindicted co-conspirators, these reasons do not withstand careful scrutiny. Legitimate governmental objectives can be met in other ways. Professor Robbins concludes that Congress should breathe life into the traditional "shielding" function of federal grand juries and prohibit the use of unindicted co-conspirators' real names in grand jury indictments.

Grand Jury, Co-Conspirator, Unindicted Co-Conspirator, 5th Amendment, Due Process, Miscarriage of Justice, Fundamental Fairness

Abstract:
Hurricane Katrina was one of the worst natural disasters ever to strike the United States, in terms of casualties, suffering, and financial cost. Often overlooked among Katrina's victims are the 8,000 inmates who were incarcerated at Orleans Parish Prison (OPP) when Katrina struck. Despite a mandatory evacuation of New Orleans, these men and women, some of whom had been held on charges as insignificant as public intoxication, remained in the jail as the hurricane hit, and endured days of rising, toxic waters, a lack of food and drinking water, and a complete breakdown of order within OPP. When the inmates were finally evacuated from OPP, they suffered further harm, waiting for days on a highway overpass before being placed in other correctional institutions, where prisoners withstood exposure to the late-summer Louisiana heat and beatings at the hands of guards and other inmates. Finally, even as the prison situation settled down, inmates from the New Orleans criminal justice system were marooned in correctional institutions throughout the state, as the judicial system in New Orleans ceased to function.

The resulting effects were both tragic and unconstitutional, as the suffering at OPP could have been prevented. This Article asserts that prison administrators have a constitutional duty to plan for emergencies, and argues that the failures of New Orleans officials to do so violated prisoners' Sixth and Eighth Amendment rights, as well as internationally recognized human rights standards. With the wealth of training and planning materials available to prison officials and the knowledge of possible emergencies, it is unconscionable for prisons to have nonexistent or inadequate plans. Assessing change through litigation and legislation, this Article advocates a mixed approach, using judicial and legislative remedies for the abhorrent violations of well-established prisoners' rights. The Article recommends that states develop mechanisms, such as emergency courts, to enable the administration of justice to resume promptly following serious natural or man-made disasters. Prisons and courts should internalize the lessons of Hurricane Katrina, which demonstrated the consequences of inadequate preparation and planning for prisoners' safety during and after a major emergency.

Hurricane Katrina, prison emergency, natural disaster, man-made disaster, Sixth Amendment, effective assistance of counsel, Eighth Amendment, cruel and unusual punishment, deliberate indifference, emergency preparedness, emergency plan, Orleans Parish Prison, international human rights

Abstract:
“Best practices” has become one of the most common research and development techniques in the United States and throughout the international community. Originally employed in industry, the concept sought to identify superior means to achieve a goal through “benchmarking,” thereby allowing companies to obtain a competitive advantage in the marketplace. In recent decades, the use of best practices has become widely popularized, and is frequently utilized in the areas of administrative regulation, corporate governance, and academia. As the term has grown in popularity, however, so too has room for its abuse. In many instances, the term has been invoked to claim unsupported superiority in a given field.

This article examines the history behind the emergence of best practices, summarizes the prevailing models of the concept, surveys the worst practices on best practices, and proposes a working definition. It then applies that definition to the Clinical Legal Education Association publication, Best Practices for Legal Education. While there are contexts in which identifying and applying best practices may be appropriate, the article concludes that using best practices when thinking and writing about legal education is misleading and inappropriate.

best practices, benchmarking, minimum standards, baselines, legal education, legal education reform, industry, competitive advantage, administrative regulation, corporate governance, Carnegie Report, MacCrate Report, goals of legal education, case method, clinical legal education, law reform

Abstract:
In a separate article - Best Practices on “Best Practices”: Legal Education and Beyond - Professor Robbins formulated a paradigm for “best practices” and applied it to the book, Best Practices for Legal Education. Professor Robbins concluded that the book did not meet any of the criteria necessary to constitute best practices and, further, that using the concept of best practices when thinking and writing about legal education is misleading and inappropriate. The primary author of the book, Roy Stuckey, responded, claiming that “best” can mean something other than best, that the difference really doesn’t matter, and that the debate over the proper use of best practices in legal education is a distraction. This is Professor Robbins’ reply.

best practices, benchmarking, minimum standards, baselines, legal education, legal education reform, industry, competitive advantage, administrative regulation, corporate governance, Carnegie Report, MacCrate Report, goals of legal education, case method, clinical legal education, law reform

Abstract:
In the aftermath of 9/11, not only were there several deadly anthrax attacks, but there were also numerous anthrax hoaxes. Some of these hoaxes resulted in serious jail time. Early on, prosecutors attempted to stretch existing laws (e.g., false-reports and bomb-hoax statutes) to fit the facts of individual cases. Some states have since enacted new laws designed to prosecute and deter anthrax hoaxes in particular. Many of these laws, however - enacted in the heat of the moment - either omit or misinterpret important aspects of mens rea and actus reus, thus making the successful and fair prosecution of offenders a difficult task.

This article considers whether hoax legislation should be a state or federal matter, reviews federal and state statutes used to prosecute anthrax hoax crimes before 9/11, analyzes legislation introduced in response to the attacks on 9/11, and recommends a model hoax crimes statute. The article concludes with a recommendation that the federal government adopt a hoax crime statute that includes a mens rea requirement based on the mindset of the perpetrator and three distinct acti rei - false reports, hoaxes, and terroristic threats - with punishment tailored to the perpetrator's actual mens rea. Regardless of whether the federal government adopts these laws, the states should employ statutes that are based on this formulation.

Anthrax, hoax, hoaxes, mens rea, actus reus, terrorism, false reports, false reporting, weapons of mass destruction

Abstract:
In an effort to cut costs, many state and county incarceration facilities have turned to private managed health care organizations to provide health care for their prisoners. Despite --or, perhaps, because of--the money saved by the government and the money made by managed care organizations, the level of health care in these facilities has decreased, and prisoner complaints and lawsuits are on the rise. Private managed health care in prisons has resulted in inmate injuries and deaths, many of which have been and are being challenged on Eighth Amendment grounds.

Constitutional violations in prison health care are determined under the deliberate indifference standard. The Supreme Court has held that government entities, or private companies carrying out governmental duties, can be held liable for systemic deliberate indifference violations where the entity promulgates an official custom or policy that violates prisoners? constitutional rights. Without question, some managed health care systems in prisons contain aspects that constitute an official custom or policy that violates prisoners' constitutional rights.

Some aspects of managed care, particularly direct financial incentives to avoid treating inmates, constitute per se deliberate indifference. Courts should find that the implementation of these policies always fails constitutional muster. Other aspects of managed care create a rebuttable presumption that deliberate indifference exists. Measures to save money--such as cutting staff, hiring less qualified staff, and denying, delaying or providing inefficacious treatment--can give rise to a rebuttable presumption that deliberate indifference has occurred.

Legislatures might consider banning private managed health care in prisons and jails. In the alternative, legislatures might consider enacting and departments of corrections might consider contracting for provisions that ensure the adequate treatment of inmates. Absent these alternatives, the use of managed health care in incarceration facilities, and the decreased level of care that comes along with it, should remain under the constant vigilance of federal and state courts, whose obligation it is to enforce the Constitution of the United States.

Abstract:
Part I of the article assesses the applicability of certain provisions of the Americans with Disabilities Act to the particular problems posed by elderly, mentally disabled, HIV-infected, and hearing-impaired inmates, as well as by pretrial detainees and death-row inmates. Part II provides the historical and statutory background preceding the enactment of the ADA. Part III sets forth the substance of the ADA's requirements and briefly discusses their applicability to the prison context. Part IV considers the legal implications of Title II of the ADA with respect to establishing violations and pursuing remedies. Part V hypothesizes how the courts will respond to the ADA in light of their tendency to accord prisons deference in institutional matters. Part VI reviews the significant ADA-based cases to date, concluding that whatever application of the ADA in the prison context does occur will be highly restrained and cautious. Part VII surveys alternative methods for solving the problems of disabled prisoners, including early release programs, increased transfer to medical facilities, and centralized facilities for disabled inmates. Despite these alternatives, this Part recommends placing added emphasis on medical care for the disabled within the existing prison system. Finally, the article concludes that, like constitutional rights, statutory rights such as those purportedly accorded by the ADA dissipate once incarceration takes hold. Therefore, while the ADA may be a potential remedy for disabled prisoners at present, the prospects for the future are uncertain.