Tag Archives: Volume 34

Sanctioning Insurance Carriers for Bad-faith Litigation Practices: a Proposal to Change the “Named Party” Rule

It was three days before Christmas in 1996. Earnest and Eleanor Brown, a retired couple from Shinnston, West Virginia, were driving on the freeway. The retired couple had twenty-two children, seventeen of whom were adopted, many of them with special … Continue reading

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Asylum and Oral Argument: The Judiciary in Immigration and the Second Circuit Non-argument Calendar

Saidou Dia, a native of the Republic of Guinea, and Marwan Youssef Albathani, a Lebanese national, have likely never met. Both men were born in their native countries in the 1970s, both men were politically active in their native countries, and the lives … Continue reading

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The Constitutional Rights of Non-custodial Parents

The legal treatment of non-custodial parents has become a lightning rod in modern family law. The topic is obviously important. Every year in this country, about one million children see their parents divorce. In addition, roughly a third of all … Continue reading

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The State Action Doctrine and the Principle of Democratic Choice

The state action doctrine is somewhat of a mystery to law students, legal scholars, lawyers, and judges. It is a key component of the Fourteenth Amendment—a threshold requirement that must be satisfied before triggering protection of our fundamental rights—but the … Continue reading

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Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code

In any presentation on legal ethics, it is common for the speaker to argue that we need more ethics. As the Duchess of Windsor (and others) once said, one can never be too thin or too rich. So also, many … Continue reading

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“Play in the Joints Between the Religion Clauses” and Other Supreme Court Catachreses

Even when the U.S. Supreme Court reaches the right result in a matter involving church-state relations, the Justices too often do so for the wrong reasons. Cutter v. Wilkinson is illustrative. Decided during the Court’s last term, Cutter reversed a … Continue reading

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Moralizing in Public

Chief Justice Earl Warren once remarked: “In civilized life, law floats in a sea of ethics.” There is, in other words, a foundation of ethical values for the law. In performing our legal duties, we are also satisfying our ethical … Continue reading

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Henry Lord Brougham and Zeal

In a recent article, Professors Fred Zacharias and Bruce Green undertook to “reconceptualize” advocacy ethics. In the course of that article, they rejected the ethic of zeal, and stated erroneously that Henry Lord Brougham had himself repudiated his famous statement … Continue reading

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Big Talk, Broken Promises: How Title I of the Americans with Disabilities Act Failed Disabled Workers

The Americans with Disabilities Act (“ADA” or “the Act”) was signed into law in July 1990 with much fanfare. President George H.W. Bush echoed Congress’s belief that it would level the playing field for the disabled in all facets of … Continue reading

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An Old Means to a Different End: The War on Terror, American Citizens . . . and the Treason Clause

In 2004, Supreme Court Justice Antonin Scalia, while dissenting in Hamdi v. Rumsfeld, stated that when the United States government accuses one of its own citizens of waging war against it, “our constitutional tradition has been to prosecute him in … Continue reading

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