Teaching Rule Synthesis with Real Cases

Rule synthesis is the process of integrating a rule or principle from several cases. It is a skill attorneys and judges use on a daily basis to formulate effective arguments, develop jurisprudence, and anticipate future problems. Teaching new law students how to synthesize rules is a critical component in training them to think like lawyers. This article suggests how rule synthesis might be taught in one classroom session using real cases. It advocates a three-part approach. First, explain the nature of rule synthesis to the students. Second, do a whimsical exercise with them to show how rule synthesis works. Finally, break into small groups and synthesize a rule from real cases for a hypothetical problem. Massachusetts judges have written a number of very short opinions regarding banana peel litigation. Accordingly, the hypothetical problem suggested involves a banana peel slip-and-fall case set in Boston. Because these opinions are so short, students will have time in class to read them and synthesize a rule from them. In working through the exercise students will see that different rules can be synthesized from the same set of cases

Perceptual Differences in the Conversational Performance of People with Severe Expressive Aphasia Using Three Types of Visual Screen Displays on Speech Generating Devices

A multiple single-subject randomized design experimental study measured the perceptions of three persons with aphasia and their communication partners without aphasia when communicating across three conditions: Condition A--speech generating device (SGD) with No Display; Condition B--SGD with visual scene display (VSD); and Condition C--SGD with traditional grid display (TGD). Quantitative data were collected in the forms of preference choice of display type, a forced-choice ranking of experimental sessions, and 7-pt Likert rating scales. All participants rated the dependent variables of communicative success, ease, independence, and naturalness across conditions. Qualitative data were collected in the form of open-ended interviews conducted at the end of each experimental session and at the close of the study. Each participant dyad completed six experimental sessions consisting of a conversational interaction in which the person with aphasia shared a personally relevant story. Quantitative analyses revealed that 2 of 3 persons with aphasia preferred Condition B (VSD) over the other experimental conditions. All three persons with aphasia chose sessions using VSD as their best or top-ranked sessions in the forced-choice ranking task. Qualitative analysis revealed that peer communication partners and participants with aphasia had both favorable perceptions and criticism of the VSD

The Judgment Fund: America\u27s Deepest Pocket & Its Susceptibility to Executive Branch Misuse

Over the last thirty-five years, the United States government has paid out billions of dollars in settlements that have had no fiscal consequences for the agencies whose actions caused the claims. It has done so through the Judgment Fund, a relatively unknown permanent, indefinite appropriation originally created by Congress almost half a century ago to pay certain types of judgments entered against the United States. Congress struggled for nearly two hundred years to find a way to exercise its Appropriations Clause authority over claims payments that did not drown its members in procedural detail. The article surveys that history. Through statutes such as the Tucker Act and the Federal Tort Claims Act, Congress gave the courts authority to decide claims. By enacting the Judgment Fund, it gave the Executive Branch authority to pay judgments and settlements without congressional review or involvement. In a series of statutes aimed at paperwork reduction, Congress eventually ended most requirements for the disclosure of such government payments. The open-ended grant of authority coupled with the lack of disclosure have left the Fund vulnerable to misuse, potentially allowing the Executive to use it to settle claims for political reasons rather than litigative risk. Such settlements would bypass Congress’ power under the Appropriations Clause to control government spending. This article examines the possible political abuse of the Judgment Fund and argues that, although the Fund works well in most regards, the lack of disclosure surrounding disbursement of its payments demands attention. It also recommends that Congress consider limiting the Executive’s authority to use the Judgment Fund to finance new claims programs created without legislation, congressional input, or judicial supervision, such as the Hispanic or Female Farmer’s Claims Process established by the Obama Administration in 2011

In Defense of Feres: An Unfairly Maligned Opinion

The Supreme Court’s 1950 Feres v. United States decision held that when it enacted the Federal Tort Claims Act Congress did not intend to waive sovereign immunity for injuries to members of the military arising out of activity incident to their service. The Court’s decision was influenced by the long history of efforts to enact a general tort claims bill that would free Congress from the burden of processing claims against the government, as well as the case law, statutes, and procedures pertaining to service-members’ injuries prior to enactment of the Federal Tort Claims Act. This Article examines those influences and the early cases that analyzed the incident to service issue under the Act, including the Court’s Brooks decision that allowed service-member suits for injuries that did not arise incident to service. The Article reviews the lower courts’ decisions in the three cases that were consolidated in Feres and the parties’ briefing in the Supreme Court. The Article addresses arguments that have been raised against Feres’ reasoning, arguments that independently attack its holding, and various characterizations of the opinion. Because of the language of the Federal Tort Claims Act, the historical backdrop to the Court’s decision, and the absence of any indication that Congress intended to waive sovereign immunity for injuries suffered incident to service, Feres correctly decided that the Federal Tort Claims Act did not encompass such injuries

Ethical Intersections & the Federal Tort Claims Act: An Approach for Government Attorneys

This article suggests an ethical approach for government attorneys to follow when making decisions in the special context of the Federal Tort Claims Act. It reviews the history and purpose of the FTCA, the Judgment Fund, and the Westfall Act. It examines the swirl of competing interests that arise from the structure of the FTCA, the many defenses it provides, the deep pocket it grants successful claimants, the complete immunity it grants some tortfeasors, and the methods Congress chose for paying its settlements and judgments. It touches on the ethical obligations of government attorneys. It suggests that government attorneys responsible for administering the FTCA should affirmatively help claims enter the FTCA’s adjudicatory system and then treat each claim equally by raising every reasonable defense in every case

Understanding the Federal Tort Claims Act: A Different Metaphor

When it enacted the Federal Tort Claims Act Congress waived the United States’ sovereign immunity for certain torts of the federal government. That waiver is subject to exclusions, exceptions, and limitations that may seem puzzling or counterintuitive. This essay explains the structure and operation of the Federal Tort Claims Act by comparing it to “a traversable bridge across the moat of sovereign immunity” (a metaphor used by Judge Max Rosenn in a slightly different context). The essay examines why Congress enacted the FTCA, the jurisdictional grant that allows some tort claims but not others, the pre-requisites to bringing suit, the exceptions Congress wrote into the FTCA, and other statutes that limit tort suits against the United States