Semiotics, Analogical Legal Reasoning, and the Cf. Citation: Getting Our Signals Uncrossed

The Bluebook\u27s introductory citation signals are essential to effective legal discourse. The choice of signal can influence not only the interpretation of cited cases, but also the path of the law. In this Article, Professor Ira Robbins examines one commonly used signal: the cf. After exploring its semiotic function, he details the multitude of ways in which this signal has been used and misused. He argues that lawyers\u27 and judges\u27 careless use of the cf. leads to confusing and often incoherent developments in the law, and concludes by proposing a precise working definition for this irksome, but potentially powerful, citation signal

Magistrate Judges, Article III, and the Power to Preside Over Federal Prisoner Section 2255 Proceedings.

In 1968, Congress enacted the Federal Magistrates Act to enhance judicial efficiency in the federal courts. Since then, some judicial functions delegated to magistrate judges have been challenged on constitutional grounds: while federal district judges, appointed pursuant to Article III of the United States Constitution, are protected with life tenure and undiminishable salary, thereby enhancing judicial independence, federal magistrate judges, appointed pursuant to Article I, have no such protection. The most recent major challenge to magistrate judge authority came in 2001, when the United States Court of Appeals for the Fifth Circuit, in United States v. Johnston, decided that referral to magistrate judges for final disposition of federal prisoner 28 U.S.C. § 2255 post-conviction motions, with the consent of the parties, violates Article III. This Article traces the evolution of the Federal Magistrates Act, explores constitutional and other challenges that have arisen under the Act and how the courts have resolved them, and reviews the unique nature of § 2255 motions. Professor Robbins argues against referral of § 2255 motions to magistrate judges for final disposition, and concludes with recommendations of other ways to deal with these motions without overloading the judicial system

Best Practices on Best Practices : Legal Education and Beyond

“Best practices” has become one of the most common research and development techniques in the United States and throughout the international community. Originally employed in industry, the con-cept sought to identify superior means to achieve a goal through “benchmarking,” thereby allowing companies to obtain a competitive advantage in the marketplace. In recent decades, the use of best prac-tices has become widely popularized, and is frequently utilized in the areas of administrative regulation, corporate governance, and academia. As the term has grown in popularity, however, so too has room for its abuse. In many instances, the term has been invoked to claim unsupported superiority in a given field. This article examines the history behind the emergence of best practices, summarizes the prevailing models of the concept, surveys the worst practices on best practices, and proposes a working defini-tion. It then applies that definition to the Clinical Legal Education Association publication, Best Practices for Legal Education. While there are contexts in which identifying and applying best practices may be appropriate, the article concludes that using best practices when thinking and writing about legal education is misleading and inappropriate

Lessons from Hurricane Katrina: Prison Emergency Preparedness as a Constitutional Imperative

Hurricane Katrina was one of the worst natural disasters ever to strike the United States, in terms of casualties, suffering, and financial cost. Often overlooked among Katrina s victims are the 8,000 inmates who were incarcerated at Orleans Parish Prison (OPP) when Katrina struck. Despite a mandatory evacuation of New Orleans, these men and women, some of whom had been held on charges as insignificant as public intoxication, remained in the jail as the hurricane hit, and endured days of rising, toxic waters, a lack of food and drinking water, and a complete breakdown of order within OPP Wien the inmates were finally evacuated from OPP, they suffered further harm, waiting for days on a highway overpass before being placed in other correctional institutions, where prisoners withstood exposure to the late-summer Louisiana heat and beatings at the hands of guards and other inmates. Finally, even as the prison situation settled down, inmates from the New Orleans criminal justice system were marooned in correctional institutions throughout the state, as the judicial system in New Orleans ceased to function. The resulting effects were both tragic and unconstitutional, as the suffering at OPP could have been prevented. This Article asserts that prison administrators have a constitutional duty to plan for emergencies, and argues that the failures of New Orleans officials to do so violated prisoners\u27 Sixth and Eighth Amendment rights, as well as internationally recognized human rights standards. With the wealth of training and planning materials available to prison officials and the knowledge of possible emergencies, it is unconscionable for prisons to have nonexistent or inadequate plans. Assessing change through litigation and legislation, this Article advocates a mixed approach, using judicial and legislative remedies for the abhorrent violations of well-established prisoners\u27 rights. The Article recommends that states develop mechanisms, such as emergency courts, to enable the administration of justice to resume promptly following serious natural or man-made disasters. Prisons and courts should internalize the lessons of Hurricane Katrina, which demonstrated the consequences of inadequate preparation and planning for prisoners\u27 safety during and after a major emergency

Beyond Freedom and Dignity: Aleksandr Solzhenitsyn and the American Gulag

A review of The Gulag Archipelago 1918-1956: An Experiment in Literary Investigation. Volume III by Aleksandr I. Solzhenitsy

The Obsolescence of Blue Laws in the 21st Century

Depending on where in the United States one is located on any given Sunday or Christian holiday, it is against the law to buy a beer or a car, go shopping, hunt, or even play Bingo. This prohibition is a direct result of Blue Laws, alternatively called Sunday Closing Laws or Lord’s Day Acts. Blue Laws frustrate commerce and recreational activities. While at one time they might have aligned with societal values or served a practical secular purpose, such as providing workers with a day of rest, modern society renders Blue Laws obsolete and nonsensical. Due to rapid change in societal opinion regarding religion and liquor, many states have already repealed and chipped away at liquor Blue Laws over the last decade. Modern developments in technology have also changed the way consumers shop. Consequently, Sunday Closing Laws do not effectively curb Sunday commerce, but instead assure that brick-and-mortar shops and automobile lots unfairly bear the burden of these restrictions. While Blue Laws have previously survived First and Fourteenth Amendment challenges, they have become increasingly constitutionally suspect, as they are riddled with exceptions urged by special interest groups. Moreover, federal regulatory schemes more effectively accomplish the secular goals of Blue Laws. The doctrine of desuetude further complicates the issue, given the conspicuous lack of enforcement. Due to the legally suspect basis, the development of societal mores and technology in the twenty-first century, the benefits to legislators and the judiciary in time saved, the benefits to consumers and retailers in convenience and additional profit, and the benefit to the state in increased economic activity and tax revenue, states should repeal Blue Laws across the board