Judicial Vacancies and Delay in the Federal Courts: An Empirical Evaluation, in Symposium, The Civil Justice Reform Act

This Article examines the relationship between federal district court judicial vacancies --whether caused by the executive branch\u27s failure to timely nominate judges, Congress\u27s failure to confirm presidential nominees, or some other reason -- and delays in processing the civil caseload. The hypotheses tested are several configurations of the hypothesis “judicial vacancies cause delay.” The statistical method of analysis of covariance is used to test this hypothesis and thereby evaluate the degree to which delays, defined by reference to certain case management statistics, are correlated to vacancy rates in individual federal district courts, and within the federal system as a whole. My conclusions may be surprising to some. The data analyzed ultimately suggest that, whether vacancy rates are expressed in terms of absolute vacancies or as a percentage of judicial capacity and adjusting for differences among courts as to caseloads and other objective factors that might also cause delay, there is no relationship between judicial vacancies and the traditional indicators that the Administrative Office of the United States Courts (“AO”) has used to measure civil litigation delay in the district courts. Part I explains the data used in the analyses, discusses the methodology, and sets forth and explains the results. Part II offers some explanations for the lack of relationship that the data clearly showed, and some conjecture about the more probable causes of unacceptable delay that concededly exists in many federal courts today

Standards for Health Care Decision-Making: Legal and Practical Considerations

This Article explores the guardian’s role in making, or assisting the ward to make, health care decisions, and provides an overview of existing standards and tools that offer guidance in this area. Part II outlines briefly the legal decisions and statutory developments assuring patient autonomy in medical treatment, and shows how these legal texts apply to and structure the guardian’s role as health care decision-maker. Part III examines the range of legal and practical approaches to such matters as decision-making standards, determining the ward’s likely treatment preferences, and resolving conflicts between guardians and health care agents appointed by the ward. Part IV offers a general road map for legal and ethical decision-making in the health care arena. Finally, Part V offers scenarios based on real-life stories to illustrate how these standards and tools can guide guardians towards appropriate decisions in particular cases

\u27Trespassers, Beware\u27: Lyda Burton Conley and the Battle for the Huron Place Cemetery

Lyda Burton Conley, Kansas attorney and direct descendant of the great Wyandot Chief Tarhe, appeared before the Supreme Court in January, 1910 to appeal a dismissal of a lawsuit she had filed against Secretary of the Interior James Garfield in 1907. She was seeking a permanent injunction to prevent the sale of a parcel of land in which her ancestors were buried, by the federal government to private developers. This case appears to be the first on record in which a plaintiff argued that the burying grounds and cemeteries of Native American peoples are entitled to federal protection. This lawsuit to prevent the sale of the burial ground was but one of the many battles Lyda Burton Conley fought on behalf of her Native American community. She is a woman whose story must be remembered. This essay tells one part of her story: that of the aforementioned lawsuit. The essay recounts not only Conley\u27s legal battle but also something of the history of her people, the Wyandot, and of the context and culture in which Conley acquired the passion to dedicate herself to the preservation of her mother\u27s memory, her people\u27s sacred territory, and the traditions of the Wyandot nation. The author hopes this essay will prove Conley to be a remarkable woman: a woman attorney at a time when women were not supposed to be lawyers: a person who fought powerful adversaries that people were not supposed to fight and articulated legal theories that people were not allowed to assert

The Accidental Elder Law Professor

This Article discusses my somewhat unusual and erratic path to becoming an Elder Law professor. My story, told more or less in chronological order, is a first-person narrative of one woman’s journey to achieve, if not academic renown, then at least personal satisfaction in the realm of the legal academy. It does not aspire to convey ponderous wisdom about the best way to teach Elder Law or the importance of scholarly productivity as a measure of one’s legitimacy. On the contrary, I hope the Article will illustrate that, in the same way the field of Elder Law has grown and changed over the past two decades, I have grown and changed as a teacher and writer. As Elder Law becomes richer and more complicated as a practice specialty and academic discipline, the ways in which its substance is conveyed to students also become richer and more complicated—encompassing practical, theoretical, and policy-oriented approaches to the legal challenges facing an aging population. Ultimately, I hope the Article reveals how Elder Law allows me to accommodate my varied scholarly inter-ests in a way I believe serves the interests of my students, practitioners, and the older persons whose welfare has over time become so important to my work as teacher, writer, and lawyer

Patriarchy, Paternalism, and the Masks of Fetal Protection.

This essay is a response to John Kennedy\u27s defense of Johnson Controls, Inc.\u27s fetal protection policy which was struck down last year in International Union, UAW v. Johnson Controls, Inc. A unanimous Supreme Court held in the case that the policy, which excluded women from a fetotoxic workplace, violated the federal employment discrimination laws. The Court\u27s decision was issued only a day before Kennedy was scheduled to debate the issue of whether Title VII bars fetal protection policies with Professor Elinor Schroeder at the Kansas Journal\u27s first symposium on March 21-22. 1991. The Court\u27s decision rendered the technical statutory issues that might otherwise have been discussed at the symposium essentially moot and freed Kennedy to address, at least in part, some of the more interesting philosophical questions that the notion of fetal protection suggests. Although to some extent this essay reacts to Kennedy\u27s article previously published in this Journal, it results more directly from and responds more explicitly to his oral defense of fetal protection policies generally, and the language in which that defense was couched

Personal Jurisdiction and the Stream of Commerce

This article evaluates the stream of commerce theory of personaljurisdiction in light of existing precedent and the constitutionalimperative of due process. Part II briefly describes the factualbackground of Asahi and the various opinions rendered in the case.Part m outlines the development of jurisdictional doctrine since International Shoe, emphasizing the meaning of purposeful availment and its fluid role in the due process equation governing statecourt jurisdiction. Part IV then traces the evolution of the stream of commerce theory since International Shoe. Part V examines and rejects criticisms of the stream of commerce theory, and concludes that under any reasonabre interpretation of the due process parameters on jurisdiction, the stream of commerce theory as it is ordinarily used - as a justification for specific jurisdiction - ought to survive constitutional scrutiny. Therefore, any defendant who knows or should know that a product he markets will be used and may cause injury in a foreign jurisdiction should be amenable, as a constitutional matter, to suit there in a cause of action related to the product. To the extent that the plaintiffs chosen forum is truly aninconvenient one, the doctrine of forum non conveniens is availableto relieve the defendant of any onerous litigation burdens

\u27Trespassers, Beware\u27: Lyda Burton Conley and the Battle for the Huron Place Cemetery

Lyda Burton Conley, Kansas attorney and direct descendant of the great Wyandot Chief Tarhe, appeared before the Supreme Court in January, 1910 to appeal a dismissal of a lawsuit she had filed against Secretary of the Interior James Garfield in 1907. She was seeking a permanent injunction to prevent the sale of a parcel of land in which her ancestors were buried, by the federal government to private developers. This case appears to be the first on record in which a plaintiff argued that the burying grounds and cemeteries of Native American peoples are entitled to federal protection. This lawsuit to prevent the sale of the burial ground was but one of the many battles Lyda Burton Conley fought on behalf of her Native American community. She is a woman whose story must be remembered. This essay tells one part of her story: that of the aforementioned lawsuit. The essay recounts not only Conley\u27s legal battle but also something of the history of her people, the Wyandot, and of the context and culture in which Conley acquired the passion to dedicate herself to the preservation of her mother\u27s memory, her people\u27s sacred territory, and the traditions of the Wyandot nation. The author hopes this essay will prove Conley to be a remarkable woman: a woman attorney at a time when women were not supposed to be lawyers: a person who fought powerful adversaries that people were not supposed to fight and articulated legal theories that people were not allowed to assert

Rethinking Harmless Constitutional Error

This article examines the increasing role of the Chapman Rule and its effect on the harmless error doctrine and outlines a coherent doctrine of constitutional error responsive to the purposes of the various constitutional protections afforded criminal defendants. Part I evaluates the Court\u27s existing harmless error jurisprudence. Part II proposes a harmless error doctrine that, unlike the Court\u27s approach, responds to constitutional values unrelated to truth determination. The last two parts of the Article address two problems precipitated by the use of outcome-oriented rules to define and remedy constitutional error. Part III discusses when such a rule should be used at trial to decide when constitutional error has occurred. Finally, Part IV develops a formulation of the Chapman rule that ensures that appellate courts will not rely upon their own evaluations of the weight and credibility of the evidence in deciding whether a constitutional error has affected the outcome

The Underfederalization of Crime

This article contends that judicial and academic complaints about the overfederalization of crime largely have matters backwards. The image of a runaway national government increasingly taking away the enforcement of the criminal law from the States is essentially false. The available evidence indicates that the national government\u27s share in the enforcement of criminal law has been actually diminishing for more than the last half century. The national government does have concurrent authority over a greater range of criminal activity now, including much violent street crime. But, contrary to Lopez and the conventional wisdom it embraces, this expanded authority does not transgress constitutional principles of federalism. In fact, constitutional and policy considerations affirmatively support the opposite conclusion that the national government may (and probably should) exercise more authority, especially with respect to the street crime that plagues poor urban areas. It seems that crime, especially street crime, has been underfederalized. Whether due to disagreement with the merits of existing crimefighting priorities, unstated concerns over civil liberties, or undue sensitivity to the parochial interests of the federal judiciary, the conventional legal wisdom overlooks the lofty appeal of the concurrent national role we have outlined. Crime-fighting efforts, in general, have the unequivocal support of the public nationwide. Due to this nationwide consensus and the concomitant popular support for joint state and federal efforts, crime is one arena in which cooperative federalism can work best. Crime limits the opportunities of both its actual and potential victims, particularly in the poor urban areas where we argue national support should be concentrated. Federalism-based considerations suggest that the national government should increase its share of enforcement efforts in a way that advances its historic and inspiring role of promoting equality of opportunity along income and racial lines

Standards for Health Care Decision-Making: Legal and Practical Considerations

This Article explores the guardian’s role in making, or assisting the ward to make, health care decisions, and provides an overview of existing standards and tools that offer guidance in this area. Part II outlines briefly the legal decisions and statutory developments assuring patient autonomy in medical treatment, and shows how these legal texts apply to and structure the guardian’s role as health care decision-maker. Part III examines the range of legal and practical approaches to such matters as decision-making standards, determining the ward’s likely treatment preferences, and resolving conflicts between guardians and health care agents appointed by the ward. Part IV offers a general road map for legal and ethical decision-making in the health care arena. Finally, Part V offers scenarios based on real-life stories to illustrate how these standards and tools can guide guardians towards appropriate decisions in particular cases