A Tale of Two Laws: The U.S. Congress Confronts Habeas Corpus Petitions and Section 1983 Lawsuits

Actions by state prisoners have comprised a large and growing body of litigation in the U.S. federal courts over the past thirty years. State prisoners can challenge the validity of their state trial court convictions (habeas corpus petitions) and the constitutionality of the conditions of their confinement to state prisons and jails (Section 1983 lawsuits). Currently, one out of every five civil cases filed in the federal system is brought by a jail or prison inmate. When in the past did these cases begin to arise? What is the present trend? What does the future hold concerning the number of cases likely to be filed? These questions are at the heart of the current research. Care is needed in addressing these queries because it is neither easy nor obvious to know what propels the volume of litigation. Moreover, the future is especially difficult to predict in light of recent legislation adopted by the United States Congress to limit the number of habeas corpus petitions and the number of Section 1983 lawsuits filed each year. The unique contribution of the current research is threefold. First, an improved methodology is used to describe past patterns and to forecast future trends. Simply stated, prisoner litigation is hypothesized to be related to the number of prisoners. As the number of prisoners increases, the volume of litigation increases proportionately. What is not obvious about this relationship is that it has persisted over the past decades despite substantial changes in legal doctrines designed to affect the filing of the litigation. Second, the effects of two major congressional actions passed in 1996 to limit prisoner litigation are examined and assessed for their success in achieving their intended objectives. The first of these, the Antiterrorism and Effective Death Penalty Act, which sought to restrict habeas corpus petitions, is judged to have virtually no impact. The second piece of legislation, the Prisoner Litigation Reform Act, which sought to curtail lawsuits against correctional officials, appears to have lowered the volume of litigation in the short‐term, but has not disrupted the underlying link between the number of prisoners and the number of lawsuits. Finally, estimates are made of the future volume of litigation and the corresponding number of federal judges needed to resolve prisoner litigation. These estimates have the advantage of being based on significant statistical relationships and accounting for the effects of recent congressional action.     

Felony and misdemeanor defendants filed in the u.s. district courts during fiscal years 1990–95: An analysis of the filings of each offense level

The number of criminal defendants in cases filed in the federal courts increased by fewer than 1,000 from 1990 to 1995. Separate analyses of filings of felony and misdemeanor defendants revealed that there are different factors that influence the magnitude of the caseload of each offense level. The number of federal felony filings is strongly linked to staffing levels within the ninety-four U.S. attorneys’ offices, while the types of filings are a reflection of prosecution priorities. As a result, the magnitude of the felony caseload in the federal courts does not mirror either local or national crime rates. Misdemeanor filings, on the other hand, are dependent on enforcement practices of local authorities at military bases and/or national parks, and are concentrated within a few federal courts. The number of misdemeanor filings and traffic violations, in particular, are susceptible to dramatic changes when these local authorities modify their enforcement procedures.     

Bankruptcy in divorce: The litigation tactic of the angry spouse

A matrimonial proceeding on its own is complex and can have far-reaching implications. Add in a spouse filing for bankruptcy in the midst of the proceeding, and the process becomes even further complicated and quite possibly hostile. This Note analyzes the bad-faith tactics of debtor spouses filing for bankruptcy in the middle of a divorce proceeding and proposes an amendment to the Bankruptcy Code that permits bankruptcy courts to dismiss bad faith petitions before they negatively impact divorce proceedings.     

Appellate and trial court caseload growth: A pooled time-series-cross-section analysis

This is an econometric study of factors behind filing growth since 1970 in state trial courts and, especially, appellate courts. The model posits two categories of variables: those affecting the supply of disputes and those affecting the costbenefit considerations of potential litigants. The study uses a pooled time-seriescross-section design and a fixed-effects regression procedure. The overall conclusion is that factors determining the supply of disputes overwhelm other factors entered in the model. At the trial level, economic conditions 2 years earlier strongly affect civil filings, and crime rates for the current and prior year have moderate impacts on criminal filings. The output capacity of trial courts, measured by the number of judges, has a strong impact on appeals. Economic conditions and trial court filings influence civil appeals in later years, and prison commitments influence criminal appeals. The great majority of cost-benefit factors, such as simplification of appellate procedure and interest-rate differentials, showed little or no impact on appeals.In view of the rising emphasis on replicability (Dewaldet al., 1986; Campbell, 1986; Cook and Zarkin, 1986), we stress that the data for this research are available from the Inter-Univarsity consortium for Political and Social Research, and we will provide copies of the computer printouts giving the programs (that apply SAS) and the results. In addition, Court Studies periodically updates the data set, and it will supply current data upon request.     

Routinization of Divorce Law Practice in China: Institutional Constraints' Influence on Judicial Behaviour

Based on in-depth fieldwork investigations and extensive interviews,this article demonstrates that adjudication has replaced mediatedreconciliation and become the dominant way of handling seriouslycontested divorce petitions in contemporary China. Specifically,for first-time petitions, judges routinely render against divorce.But for second-time petitions, they routinely render adjudicateddivorce. This shift is closely linked to recent reforms in theChinese judiciary and especially the assessment criteria imposedon courts and judges. This article thus argues that the assessmentcriteria and the institutional constraints of Chinese courtsmore generally have overwhelmingly affected, if not dictated,the decision-making process of Chinese judges.     

A new test for evaluating Eighth Amendment challenges to lethal injections

An explosion of Eighth Amendment challenges to lethal injection protocols has struck the federal courts. The Supreme Court's recent decision in Hill v. McDonough,1 which empowered prisoners to bring challenges to lethal injection procedures under 42 U.S.C. para. 1983, has facilitated a flood of new lethal injection cases. In response, several courts have ordered states to alter their protocols, spurring other capital inmates to litigate such challenges. Distressingly, the courts evaluating these claims have almost no law to guide them. The last Supreme Court decision applying the Eighth Amendment to a method of execution was written in 1947; that case, Louisiana ex rel. Francis v. Resweber,2 occurred before the Eighth Amendment was applied to the states and resulted in a 4-1-4 split. Although lower courts have heard numerous challenges to execution methods, few have analyzed the constitutional validity of a method of execution in detail. Making matters worse, courts that find Eighth Amendment violations must craft equitable remedies that often amount to entirely new execution protocols. No clear precedent exists to guide courts in formulating such remedies. This Note proposes a legal standard for the administration of Eighth Amendment method-of-execution claims, focusing on lethal injection cases. Part I describes lethal injection procedures and summarizes recent litigation. Part II discusses the difficulty of evaluating lethal injection claims, analyzing both general difficulties in interpreting the Eighth Amendment and specific difficulties associated with lethal injection cases. Part III proposes a standard for addressing method-of-execution claims that attempts to balance a prisoner's interest in a painless execution with a state's interest in conducting executions efficiently. Part IV discusses remedies for unconstitutional procedures. Part V concludes.     

美国服刑人员诉诸司法之权利的宪法保护研究——以美国宪法判例为对象

在美国,服刑人员诉诸司法之权利是一项受宪法保护的基本权利。这一权利的基本权利性质并非来自于宪法文本的明文规定,而是由宪法判例加以确认的。从服刑人员诉诸司法之权利领域的案例法发展历程来看,美国联邦最高法院的司法判断决定了服刑人员诉诸司法之权利受到保护的层次、程度和范围,其中1977年的邦德斯案具有里程碑意义。虽然立法和行政对这一案例法的发展状况也产生了一定影响,但司法的独特功能是实现对服刑人员诉诸司法之权利进行宪法保护的根本保障。     

Medical restrictive covenants in Illinois: at the crossroads of Carter-Shields and Prairie Eye Center

This article examines the history, development and treatment by Illinois courts of medical restrictive covenants. The authors highlight two recent cases from Illinois, one from the Supreme Court and the other authored by an appellate court panel. The article concludes by providing not only a forecast of how such covenants should be treated by Illinois state courts in the future, but also a pathway for the expectations of health care practitioners who wish to use restrictive covenants in their employment relationships with their colleagues.     

Off the Grid: Vaccinations Among Homeschooled Children

To protect public health, states require that parents have their children immunized before they are permitted to attend public or private school. But for homeschooled children, the rules vary. With the spectacular growth in the number of homeschooled students, it is becoming more difficult to reach these youth to ensure that they are immunized at all. These children are frequently unvaccinated, leaving them open to infection with diseases that are all but stamped out in the United States with immunization requirements. States should encourage parents to get their homeschooled students vaccinated through enacting the same laws as those used for public school students. This could be done by enforcing current laws through neglect petitions or by requiring that children be immunized before participating in school sponsored programs. As most states require some filing to allow parents to homeschool their children, it would be easy to enact laws requiring that homeschooled children be immunized or exempted before completing registration.     

Temporary alien workers seeking H classification for the purpose of obtaining graduate medical education or training--INS. Final rule

After consideration of comments filed and the relevant issues, the Immigration and Naturalization Service (Service) has decided not to implement one of the changes previously proposed, to preclude the use of the H-1B non-immigrant classification for graduates of foreign medical schools pursuing medical residencies in the United States. However, this rule amends the Service's regulations in other respects by modifying the filing procedures for certain H nonimmigrant petitions involving multiple beneficiaries. The rule allows a petitioner to file a single petition even when the beneficiaries listed on the petition will be applying for nonimmigrant visas at different consulates or for entry into the United States at different Ports-of-Entry, provided that the aliens will be performing the same service or receiving the same training, for the same period of time, and in the same location. This rule further amends the Service's regulations by clearly differentiating between an H-3 alien trainee and an H-3 special education trainee with respect to the time limitations on admission for these types of classifications. This rule will ease the burden on the public when filing H petitions involving multiple beneficiaries and will correct a regulatory inconsistency regarding the limitations on stay for H-3 nonimmigrant aliens.     

Women prisoners and the law: Which way will the pendulum swing?

Women prisoners have had avenues to legal assistance open to them for several years. Even though it has been possible for them to seek recourse in the courts, many barriers to this help remain in place. This article focuses on how women prisoners and women's prisons can change through litigation.     

Quiescence in women's prisons litigation: Some exploratory issues

Despite the increase in prisoner civil rights litigation in the past decades, we know relatively little about the bases of such suits, let alone the differences between male and female litigants. Judging from existing literature, we would expect women to join male litigants in challenging the conditions of their confinement. But it seems that there has been a remarkable quiescence among women prisoners in civil rights litigation. Despite such factors as poor living conditions, overcrowding, internal disciplinary problems, lack of job training programs, and unbalanced racial composition (all positively associated with high civil rights litigation rates), it would seem that women are filing proportionally far fewer suits than their male counterparts. Further, women sue for somewhat different reasons. Using data from one federal district in Illinois and two Illinois prisons, we will argue that, compared to their male counterparts, women do not choose litigation for problem resolution, and we will suggest that gender and organizational constraints may account for much of this quiescence.     

PARENTS IN DISTRESS

State legislatures and courts continue to struggle with the issue of providing reunification services to mentally ill parents. Recent case law highlights the lack of uniformity among the states and the courts in establishing a standard for a state's duty to provide reunification services to mentally ill parents. This article examines how inconsistencies among the courts work against mentally ill parents in their pursuit of family reunification. Furthermore, the article discusses the inadequacies of servcies offered to mentally ill parents. The author argues that society and mentally ill parents benefit from imposing a duty on provide reunification services to mentally ill parents.     

“I'll Make Them Shoot Me”: Accounts of Death Row Prisoners Advocating for Execution

About 11% of death‐sentenced prisoners executed in the United States hastened executions by abandoning their appeals. How do these prisoners persuade courts to allow them to abandon their appeals? Further, how do legal structures and processes organize these explanations, and what do they conceal? An analysis of Texas cases suggests that prisoners marshal explanations for their desires to hasten execution that echo prevailing cultural beliefs about punishment and the death penalty. The coherence of these accounts is amplified by a non‐adversarial, unreliable legal process. This article contributes to our understanding of legal narratives, and expands their analysis to include not only hegemonic stories and legal rules, but also the legal process that generates them.     

Ruling on Prisoners' Grievances

In this article, the author describes his experience as an active participant on a central review board designed to hear appeals by prisoners front adverse decisions made by local prison grievance and disciplinary boards. The invitation to serve as "citizen member" on this appellate board came to the author as a result of his earlier work on inmate grievance procedures, reported in a previous Journal article. The present article gives a close-up account of the types of inmates and inmate problems encountered while serving on such a board and of the difficult role conflicts that the board members face in trying to make decisions that are both fair and realistic. The article also gives a first-hand impression of the flavor of prison life.     

The Role of French Environmental Associations in Civil Liability for Environmental Harm: Courtesy of Erika

Last January, the Tribunal Correctionnel de Paris, in its decisionconcerning the Erika oil spill, clearly recognised the rightof environmental associations to claim compensation for damagedone to the environment per se. Taking the judgment as a startingpoint, this article gives a brief insight into the French regimeof civil liability for environmental harm, with a special focuson the role, as provided in the regime and further developedin the case-law, of French environmental associations. The latterare formally recognised, under certain conditions, as "guardians"of the collective interest to environmental protection. As aresult, they are entitled to bring civil party petitions beforecriminal courts in case of -largely defined- "environmentalcrimes". These procedural rights have been broadly interpretedby (criminal, as well as civil) courts and effectively usedby associations to ensure that the "polluter pays" and thatcivil damages reflect, to the extent possible, the reality ofenvironmental harm, while serving the interests of general prevention.     

Procedural justice at German courts as seen by defendants and juvenile prisoners

The article summarizes German research on procedural and distributive justice at criminal courts. The first German field studies addressing these topics are presented. Procedural justice characteristics like neutrality, courtesy, equal consideration of evidence, voice, and fairness of procedural rules are relevant for Germans. A study on juvenile prisoners shows no support for equity theory and some for the Group Value model. Lay assessors receive positive evaluations by juvenile prisoners.     

Not Ozzie and Harriet: Postwar Divorce and the American Liberal Welfare State

This article analyzes divorce as a technology of governance in twentieth-century America in order to examine the emergence of a rights-based liberal welfare-state regime during the postwar era. The author offers an interpretation of the post–World War II "divorce boom" that challenges prevailing notions of postwar domestic tranquillity and highlights the legal formalization of family relations and the administration of the developing welfare state. The article posits an important shift in postwar public policy regarding divorce from the policing of public morality through family preservation to the regulation of public welfare through family structures. The legal consequences of this shift are explored at the local level by focusing on the "problem" of the Chicago divorce courts and the frustrated attempts of postwar reformers in Illinois to employ the traditional methods and rhetoric of Progressive Era reform. At the national level, the author examines the formulation of new governmental objectives and individual rights in the liberal welfare-state regime through an analysis of the United States Supreme Court's'decisions regarding migratory divorce.     

Implementing the Key Components of Specialized Drug Treatment Courts: Practice and Policy Considerations

The perceived need for specialized drug courts emerged from the most recent "war on drugs." Courts were no longer able to handle such cases effectively because of an overwhelming volume of drug arrests and prosecutions. The increased emphasis on drug enforcement also revealed that many of the most serious criminally involved drug‐using offenders were undeterred by threats of incarceration, but were amenable to substance abuse treatment. Drug court professionals have identified several "key components" that must be in place for these courts to achieve their goals of reducing drug use and crime. Through the lens of these key drug court components, we examine the development and initiation of specialized drug treatment courts in Cook County (Chicago), Illinois. By exploring and documenting Cook County's experiences, we elucidate several of the basic policy and organizational issues surrounding the implementation and operations of specialized drug treatment courts in the United States.     

Serving the creditors after insolvency filings: from value creation to value distribution

This paper provides original empirical evidence on the financial outcome of insolvency filings in Europe. We adopt a cross-country analysis of the determinants of recovery rates isolating three types of creditors (junior, senior, and new money claims). We investigate the structure of recoveries on a unique hand-collected sample of bankrupt firms in France, Germany, and the UK. We initially question value maximization, and study to which extent the legal provisions prevailing after insolvency filing can influence creditors’ overall recoveries. Three procedures differ significantly from our benchmark (UK liquidations). French continuation and UK receivership exert a positive influence onto total repayments, while such influence becomes negative under French liquidation. We relate this finding to the ability of the two former procedures to improve coordination among the creditors, monitoring of the debtor, and/or incentives to file early. We then analyze value distribution by examining competition between the categories of creditors. We show that the insolvency systems do not converge. Junior and senior creditors are better served under the German and the French continuation procedures than in any other bankruptcy path. At the opposite, the UK liquidation procedures fail to satisfactorily serve the junior/senior creditors. Still, nearly all the insolvency procedures support fresh financing by protecting quite well new money claims. Overall, we do not confirm any superiority of one family of insolvency system over another, but rather stress the importance of an appropriate design of the procedures, especially regarding the incentives they create before and after insolvency filing.