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Todd A. Lard et al., What to Expect When You Are Expecting State Tax Reform, 66 Tax Executive 15 (2014)Clicking on the button will copy the full recommended citation.
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Kirsten K. Davis, “The Reports of My Death Are Greatly Exaggerated”: Reading and Writing Objective Memoranda in a Mobile Computing Age, 92 Or. L. Rev. 471 (2014)Clicking on the button will copy the full recommended citation.
Is there any reason for lawyers to write legal memoranda, particularly when some lawyers report that they no longer value the “traditional” legal memo? Does the legal memorandum – a common first writing project for law students – have any application whatsoever beyond the first year of law school? Does the usefulness of the memo decrease when it is read on a mobile device?
This article takes issue with the idea that the “traditional” legal memorandum is dead. It challenges lawyers, law faculty, and law students to think more deeply about the purposes of the legal memo, its role in modern legal practice, and its readability in a mobile computing world. And it offers a view of the legal memo that draws upon not only legal practice traditions but also upon the rules of ethics, rhetorical theory, cognitive science, and on-screen readability studies.
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Rebecca C. Morgan, State Governments Face the Realities of Aging Populations: What the Future of Aging Means to All of Us: An Era of Possibilities, 48 Ind. L. Rev. 125 (2014)Clicking on the button will copy the full recommended citation.
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Jason Bent, Curtailing Voter Intimidation by Employers After Citizens United, 43 Stetson L. Rev. 595– (2014)Clicking on the button will copy the full recommended citation.
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Jason Bent, Hidden Priors: Toward a Unifying Theory of Systemic Disparate Treatment Law, 91 Denver University Law Review 807– (2014)Clicking on the button will copy the full recommended citation.
Did the Court’s procedural decision in Wal-Mart Stores, Inc. v. Dukes undermine the substance of the systemic disparate treatment theory of employment discrimination? The answer to that question hinges on understanding the theoretical foundation for what one scholar calls the “most potent and least understood of the various Title VII causes of action.” The current scholarly efforts to understand systemic disparate treatment law can be sorted into two distinct strands – methodological and contextualist. Scholars in the methodological strand question whether statistical techniques currently used by courts are sufficient to support an inference of discrimination. In the contextualist strand, scholars urge a conceptual expansion of the systemic disparate treatment theory that would impose liability on employers for wrongdoing located at the organizational level, rather than simply aggregating individual-level claims. These two strands have advanced independently, with scholars in each strand often overlooking the implications of progression in the other. This Article is the first attempt to unify these two scholarly strands. It does so by exposing the inescapable role of hidden Bayesian priors – preconceptions about background rates of discrimination – in the interpretation of statistical evidence. Taking a Bayesian view, the shortcomings of traditional statistical evidence identified by methodologists are not fatal. Yet, the Bayesian view also provides the conceptual space needed for further development of the organizational approach advanced by contextualists. The Wal-Mart decision presents an opportunity to radically rethink this misunderstood area of antidiscrimination law, and this Article takes the first step in developing of a coherent theory of systemic disparate treatment that embraces Bayesian priors.
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Susan D. Rozelle, Practice Attributional Charity: Cognitive Bias in Intentional Homicide Law, 47 Tex. Tech L. Rev. 41 (2014)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. Rev. 721 (2014)Clicking on the button will copy the full recommended citation.
Arbitrary and capricious — or “hard look” — review is a critical and legitimizing force in a political and legal environment that is increasingly hostile to administrative government. It employs principles of judicial deference to balance the authority of courts and agencies in pursuit of rational, transparent administrative policymaking. It is thus no surprise that arbitrary and capricious review is a favorite topic of both courts and commentators. Despite this active focus on hard look review, however, a crucial point has been overlooked. Existing scholarship overwhelmingly portrays arbitrary and capricious review as one-dimensional — as applying the same standard in the same way across all manner of agency conduct. This Article rejects this one-dimensional approach and offers a new perspective that represents a potentially transformative view of arbitrary and capricious review. It reconceptualizes hard look review as a multi-dimensional expression of judicial deference and argues that arbitrariness review is both more effective and more easily justified when it is “deconstructed” — when it first divides administrative policymaking into its constituent parts, such as record building, reason giving, input scope and quality, and rationality. This shift exposes arbitrary and capricious review for what I contend it should be: a collection of more particularized inquiries into specific components of agency decision making. The deconstruction model is useful for several reasons. It provides a new and coherent theoretical framework for arbitrary and capricious review. This framework may then be used to evaluate each of the deconstructed components of agency conduct against the underlying principles of judicial deference and goals of hard look review to develop a new, dynamic view of arbitrariness review that tailors judicial deference to discreet aspects of agency decision making. Deconstruction also reveals institutional and systemic benefits to viewing hard look review as a multidimensional exercise. These in turn increase our understanding of how hard look review should be utilized in different contexts and of when courts should defer to the political branches more generally.
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Kristen R. Moore, Spreading Holiday Cheer as Exams Draw Near, 33 ALL-SIS Newsletter 4, 10 (2014)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, What “Stop and Frisk” Can Teach Us About the First Amendment and Judicial Recusal, 47 Conn. L. Rev. Online 13 (2014)Clicking on the button will copy the full recommended citation.
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Brooke J. Bowman, Editor’s Note, 19 Legal Writing iv (2014)Clicking on the button will copy the full recommended citation.