Prior scholarship has assumed that the inherent value of a "day in court" is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a "day in court" can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, it introduces and demonstrates the usefulness of procedural triage.
This Article demonstrates the real world potential of procedural triage by showing how Medicare should use this new tool to address its looming administrative crisis. In the methodological tradition of Jerry Mashaw's seminal studies of the Social Security Administration, this Article uses its in-depth study of Medicare to develop a theoretical framework that can be used to think through where and how other adjudicatory processes should engage in procedural triage. This Article concludes by applying this framework to survey other potential applications for procedural triage, from the Department of Veterans' Affairs to the Federal Rules of Civil Procedure.
This Article examines the impact of the quality of a lawyer's working relationship with his or her client on one of the most important types of capital markets deal in a company's existence: its initial public offering (IPO). Drawing on data from interviews with equity capital markets lawyers at major law firms, and analyzing data from IPOs in the United States registered with the Securities and Exchange Commission between June 1996 and December 2010, this study finds a strong association between several measures of IPO performance and the familiarity between the lead underwriter and its counsel, as measured by the number of times a particular law firm serves as counsel to a managing underwriter within a relatively short time period. Performance is gauged according to a stock's opening day returns, price performance over thirty, sixty, and ninety trading days, correct price revision, litigation rates, and the speed at which deals are completed. I also analyze the relationships between the lawyers for the lead underwriter and the lawyers for the issuer. The analysis shows some benefits from familiarity, albeit generally smaller than those associated with the underwriter-lawyer relationship. In all cases, the positive effects of repeated interaction diminish the further back in time the previous collaborations occurred. To rule out selection and reverse causality, I perform a number of tests using smaller subsets of the data to remove observations that are plausibly selection driven. I also show that the relationships between familiarity and deal quality occur independently of the level of the lawyers' experience.
These findings support the conclusion that lawyers' relational skill can positively influence deal outcomes, independent even of substance and process knowledge. I hypothesize that the core advantage of repeated interaction is the formation of more effective lawyer-client team dynamics.
The McDade Amendment ("the Act") is a federal law that requires federal prosecutors to abide by the state ethics rules of the jurisdiction in which they practice. The Act does not say, however, whether federal or state courts are definitive when it comes to interpreting state ethics rules as they apply to federal prosecutors. Those testifying before Congress raised this issue and noted that the Act left the issue unresolved. Despite this, Congress did not address this matter in either its legislative history or in the Act itself. No court has tackled this question and scholarship attends to it only in passing. At this time, both federal and state courts interpret state ethics rules as they apply to federal prosecutors.
As it currently stands, with both court systems interpreting the rules and no determination as to which is definitive, federal prosecutors must comply with both federal and state court interpretations. This is likely to chill federal prosecutors in the exercise of their official duties because they are bound to be unsure of the rules they must abide by. More importantly, concurrent interpretation creates unsolvable conflicts when a federal and state court in the same jurisdiction interpret the same rule differently.
This Note explores whether federal or state courts' interpretations of state ethics rules are definitive as applied to federal prosecutors under the McDade Amendment. It considers the plain text of the Act, its legislative history, and the purposes and policies of the legislation. Ultimately, this Note argues that the legal community should regard state courts' interpretations as definitive. This Note concludes by proposing a framework for federal courts to defer to state courts' interpretations of ethics rules as they apply to federal prosecutors.
In twenty states throughout the country, the government may petition for the civil commitment of detained sex offenders after they are released from prison. Although processes differ among the states, the government must generally show at a court proceeding that a detained sex offender both suffers from a mental abnormality and is dangerous and that this combination makes a detained sex offender likely to reoffend. At such court proceedings, both the government and the respondent will present evidence to either the court or the jury on these issues. As in most court proceedings, hearsay evidence is inadmissible at sex offender civil commitment hearings unless it meets sufficient indicia of reliability or fits within an established exception to the general rule against hearsay.
On November 19, 2013, the New York State Court of Appeals determined that in sex offender civil commitment hearings, the best way to show that hearsay evidence regarding uncharged crimes and/or dropped charges meets sufficient indicia of reliability is to require live confrontation of the declarant. This Note argues, however, that neither the U.S. Constitution nor New York State's Civil Practice Law and Rules require live confrontation. In addition, live confrontation conflicts with the legislative intent of New York State's sex offender civil commitment statute and is detrimental to the psychological well-being of victims of sexual assault.
It is a fundamental principle of the American justice system that a defendant should be judged on the facts of the case at issue and not for the defendant's general character or past indiscretions. Federal Rule of Evidence 404, which prohibits character evidence, addresses this issue. Rule 403 represents another principle of the justice system: the legal system favors admissibility of evidence over its exclusion. There are some exceptions to this principle, including when evidence is so highly prejudicial that it outweighs the benefits of its admission. As 404(b) character evidence is almost always highly prejudicial to the defendant, trial judges are often asked to use their discretion to decide when to admit 404(b) evidence.
The lower courts often have been inconsistent when applying Rule 403 to 404(b) evidence. Understanding when to admit or exclude 404(b) evidence becomes more complicated when the defendant offers to concede to a point so that the prosecution does not need to introduce 404(b) evidence in order to prove it. In Old Chief v. United States, the U.S. Supreme Court addressed this issue. The holding, however, was narrowly tailored to its facts and provided little guidance in other cases. In addition, the Court introduced new concepts for trial judges to consider when deciding whether to admit 404(b) evidence. This Note examines the discrepancies in lower courts' methods for admitting 404(b) evidence in light of Old Chief and offers a unifying and comprehensive test for trial judges to use when faced with this issue.
This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both plaintiff and defendant, and the political arena, are considerable stakeholders.
First, this Note provides an overview of the battle over the Food and Drug Administration's (FDA) regulatory authority, preemption jurisprudence (highlighting physical impossibility preemption), design defect law, and relevant Supreme Court jurisprudence. Second, this Note introduces the conflict among the lower courts as to whether the type of test a jurisdiction uses to determine a product's defectiveness plays any role in an analysis of applicable FDA regulations' preemptory effect on state design defect law. Finally, this Note concludes that after Bartlett, so long as state design defect law adheres to strict liability principles, federal law preempts state design defect causes of action against generic drug manufacturers.
Prosecutors' extrajudicial speech is not a new problem. Indeed, prosecutors' out-of-court statements to the press and the public at large have been of concern for over a century. Consequently, ethical rules and standards have been implemented to protect defendants from undue reputational harm and to strike a balance between trial participants' right to free speech and defendants' right to due process. Although these rules and standards are periodically revised, they have not yet accounted for the differences between traditional media-for which the rules and standards were written-and social media. Recently, however, prosecutors have used social media to discuss pending cases and other aspects of the prosecutorial function, raising concern over how social media may magnify both the benefits and the risks of harm associated with prosecutors' extrajudicial statements.
This Note analyzes the differences between traditional media and social media, as well as how those differences impact the effect of prosecutors' extrajudicial speech on pending matters, the reputation of the accused, and public perception of prosecutors and the justice system as a whole. This Note argues that the increased risks of harm presented by prosecutors' use of social media necessitate new restraints to restore the free speech/fair trial balance and promote professionalism in the social media age.