CategoryDiscourse

This Essay analyzes the prohibition on the use of chemical weapons in civil conflicts and applies its findings to the Syrian civil war. We find that international humanitarian law and international criminal law provide a clear ban on the use of chemical weapons in international armed conflict. This prohibition is less clear in noninternational armed conflict, suggesting the need for legal reforms...

The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles was cruel and unusual punishment in violation of the Eighth Amendment.  The million-dollar question was whether it would do any good for the over 2000 juveniles who had previously been so sentenced.  The touchstone of Miller’s retroactivity...

In the aftermath of George Zimmerman’s state court acquittal in the Trayvon Martin killing, the U.S. Department of Justice is considering whether to bring federal criminal charges against Zimmerman arising out of the same incident. While such a dual or successive prosecution does not violate double jeopardy, the determination whether the federal government should bring charges turns on whether...

In Public Interest Lawyering: A Contemporary Perspective, Professors Alan Chen and Scott Cummings provide a nuanced and thorough account of the relationship between lawyering and social change.  In this Review Essay, Professor Douglas NeJaime explores how key insights from Chen and Cummings’ textbook could impact the way students approach adjudication, which remains the primary subject of...

In this contribution to the Symposium honoring Stephen Yeazell, the author explores the interaction between group litigation and social context in the contemporary setting.  She traces the recent law of class action waivers coupled with mandatory individual arbitration clauses in consumer and employment contracts.  She shows how the Supreme Court’s decisions in AT&T v. Concepcion and American...

In this brief commentary celebrating Professor Yeazell’s scholarship, I reflect on his seminal book on the medieval roots of group litigation in the light of global developments and technological change.

Stephen Yeazell’s pathbreaking study of the history of group litigation revealed how disparate societies have shaped the rules of group litigation to meet their own needs. Professor Yeazell thereby demonstrated that procedural rules are socially contingent rather than universal in nature. In this Essay honoring Steve, I transform that lesson into a new approach to joinder rules. Specifically, I...

This short Essay draws three lessons for evidence scholars from Stephen Yeazell’s justly celebrated work in civil procedure. The first lesson is to take history seriously but to be realistic about what it can tell us: to use history to gain perspective, not to recover lost wisdom. The second lesson is to take rulemaking seriously: to think about the processes through which evidence rules are...

Stephen Yeazell has long recognized that changes to case capitalization affect the nature and intensity of civil litigation. So too, writing back in 2001, Yeazell identified the next wave of capital with the capacity to alter the American litigation landscape: third-party litigation finance. In the ensuing decade, that industry, and specifically what I call the “lawyer lending” industry—comprised...

The Tribal Law and Order Act of 2010 was intended to significantly expand the sentencing powers of tribal courts, raising the maximum sentence for a given offense from one year to three. But the Act requires courts that would take advantage of these new powers to provide significant procedural protections to criminal defendants, while failing to provide the funding most tribal courts would need...

The rhetoric of universal healthcare and healthcare for all that pervaded the healthcare debate culminated in the Affordable Care Act’s (ACA’s) passage. The ACA, however offers reduced to no healthcare services for certain noncitizen groups, specifically: (1) recently arrived legal permanent residents, (2) nonimmigrants, and (3) undocumented immigrants. This Article explores how the ACA fails to...

Finance is undergoing a fundamental and technological shift. In the years ahead, there will inevitably be new financial characters and new financial cliffhangers. In this reply to the response of Professor Stephen Bainbridge to my article, The New Investor, I offer commentary on one particular new financial character, then on the general trope of cliffhangers as they relate to financial...

Adam Chodorow’s recent essay, Death and Taxes and Zombies, has alerted the legal world to the dangers posed by the looming zombie apocalypse.  Chodorow successfully demonstrates that existing tax laws are woefully inadequate in a world where the undead outnumber the taxpaying living.  In this Essay, I argue that while tax law may be ill suited to address the zombie apocalypse, federal criminal...

Women in California have the right to abortion protected by statute and the state constitution. Yet for many women, the “right” to abortion is illusory. Most clinics and hospitals that provide abortions are concentrated in urban areas, leaving many counties without a single abortion provider. Practical barriers to access are compounded by California’s sheer size and geography, resulting in...