TRIAL COURTS' RESPONSES TO SUPREME COURT POLICY CHANGES

This is an exploratory study focusing on the response of federal district courts to Supreme Court changes in three policy areas: economic regulation, civil liberties, and criminal justice. An analysis of federal district court opinions published in the Federal Supplement before and after the Supreme Court decisions announcing the policy changes indicated that opinion-writing patterns of federal district judges changed in a manner consistent with the Supreme Court's new direction. Further study of the federal district courts' role in the policy process is recommended and suggestions for such research are made.     

美国联邦法律中的迅速审判权

迅速审判权是美国宪法第6修正案规定的宪法性权利,也是联邦<迅速审判法>规定的重要诉讼权利.迅速审判的思想起源于英国,后传播至美国并经历了漫长的发展,被认为是"不同于其它宪法权利的基本权利".美国联邦<宪法>和联邦<迅速审判法>是保护迅速审判权的两大主要法源,分别规定了不同的迅速审判权期限要求、衡量审查标准和救济途径,在保护迅速审判权上形成了各具特色的保护模式.但总体来说,迅速审判权的实现并不容易,消除程序拖延目标的实现还需更多的努力.美国迅速审判的立法与司法保护模式对完善我国刑事诉讼立法具有诸多启示.     

Altered states: state health privacy laws and the impact of the Federal Health Privacy Rule

Although the Federal Health Privacy Rule has evened out some of the inconsistencies between states' health privacy laws, gaps in protection still remain. Furthermore, the Federal Rule contains some lax standards for the disclosure of health information. State laws can play a vital role in filling these gaps and strengthening the protections afforded health information. By enacting legislation that has higher privacy-protective standards than the Federal Health Privacy Rule, states can play three important roles. First, because they can directly regulate entities that are beyond HHS's mandate, states can afford their citizens a broader degree of privacy protection than the Federal Health Privacy Rule. Second, by having state health privacy laws, states can enforce privacy protections at the local level. Finally, action by the states can positively influence health privacy policies at the federal level by raising the standard as to what constitutes sufficient privacy protection. High privacy protections imposed by states may serve as the standard for comprehensive federal legislation, if and when Congress reconsiders the issue. So far, states' reactions to the Federal Privacy Rule have been mixed. Only time will tell whether states will assume the mantle of leadership on health privacy or relinquish their role as the primary protectors of health information.     

In Search of the Missing Link: Examining Contextual Variation in Federal Charge Bargains across U.S. District Courts

Abstract

Punishment scholars acknowledge the fundamental importance of both prosecutorial discretion and jurisdictional variation in punishment; yet, little is known about the extent to which charging practices vary across court contexts. This is especially true in the federal criminal justice system. This research investigates this issue by linking four years of charging data from the Administrative Office of the U.S. Courts (AOUSC) to corresponding data from the U.S. Sentencing Commission (USSC). It incorporates unique information on district court contexts from a variety of sources to investigate jurisdictional variation in charge reductions. Findings provide evidence that federal charging practices vary across district courts. In particular, several structural court characteristics are significantly related to the likelihood of charge reduction for similarly-situated defendants. Results from this study are interpreted through the lens of contemporary legal perspectives on court communities and suggest several fruitful directions for additional research on the social contexts of criminal prosecution.     

Regulation for the enforcement of federal health care provider conscience protection laws. Final rule

The Department of Health and Human Services issues this final rule which provides that enforcement of the federal statutory health care provider conscience protections will be handled by the Department's Office for Civil Rights, in conjunction with the Department's funding components. This Final Rule rescinds, in part, and revises, the December 19, 2008 Final Rule entitled "Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law" (the "2008 Final Rule"). Neither the 2008 final rule, nor this final rule, alters the statutory protections for individuals and health care entities under the federal health care provider conscience protection statutes, including the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment. These federal statutory health care provider conscience protections remain in effect.     

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.     

价值视角的转变与正义模式的演绎——评美国1998年《ADR 法》

经过联邦法院对 ADR 的十几年的探索实验,美国国会最终通过了1998年《ADR 法》,为 ADR 措施的开展发放了“绿卡”。该法要求所有的美国联邦法院实施“当事人服务型”的 ADR 措施,并允许法院强制当事人参加 ADR 程序。联邦法院 ADR 部门要想成功有效的实施该法,对各种 ADR 措施进行选择,以使其与现有的法院体系相兼容,同时为当事人提供便利,首先要协调好 ADR 措施所内涵的正义模式与一直引导着法院的传统的判决型的正义模式的关系。     

Cross-Classified Multilevel Models: An Application to the Criminal Case Processing of Indicted Terrorists

This study provides an application of cross-classified multilevel models to the study of early case processing outcomes for suspected terrorists in U.S. federal district courts. Because suspected terrorists are simultaneously nested within terrorist organizations and criminal court environments, they are characterized by overlapping data hierarchies that involve cross-nested ecological contexts. Cross-classified models provide a useful but underutilized approach for analyzing such data. Using the American Terrorism Study (ATS), this research examines case dismissals, trial adjudications and criminal convictions for a sample of 574 terrorist suspects. Findings indicate that diverse factors affect case processing outcomes, including legal factors such as the number of counts, number of co-defendants, and statute of indictment, extralegal factors such as the ethnicity of the offender, and incident characteristics such as the type of terrorism target. Case processing outcomes also vary significantly across both terrorist groups and criminal courts and are partially explained by select group and court characteristics including the type of terrorist organization and the terrorism trial rate of the court. Results are discussed vis-à-vis contemporary research on terrorism punishments and future directions are suggested for additional applications of cross-classified models in criminological research.     

The class certification of medical monitoring claims

The tort claim of medical monitoring has produced a disarrayed set of state and federal court opinions. The procedural dimensions of this claim are as vexing as the related substantive issues with which courts and commentators have long been grappling. Ordinarily, mass tort actions, typically involving claims for money damages, are certified under Rule 23(b)(3), which class category requires the right to notice and to opt out of a proceeding, and the fulfillment of "predominance" and "superiority" requirements. Such features are absent in Rule 23's mandatory classes. Nevertheless, this Note argues that it is appropriate for claims exclusively for medical monitoring to be certified as a mandatory class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure or its state law counterparts. Given that a medical monitoring fund is an equitable remedy, nonpreclusive of a future damages claim, and groupwide in nature, the (b)(2) class category adequately protects the due process rights of class plaintiffs.     

The Effect of Pretrial Detention on Sentencing in Two Federal Districts

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.     

Referring Discovery Tasks to Special Masters: Is Rule 53 a Source of Authority and Restrictions?

The author concludes that federal judges who want to appoint special masters to perform duties related to civil discovery may not look to the Federal Rules of Civil Procedure for authority to do so. By examining the historical backdrop against which the original rules were written, as well as the minutes of the proceedings of the first Advisory Committee, Brazil demonstrates that neither Rule 53 nor any other rule was designed to grant federal trial courts power to assign pretrial discovery tasks to special masters. In fact, the evidence the author marshalls shows that the original Advisory Committee explicitly rejected the idea that the Federal Rules should authorize even a limited role for special masters in connection with discovery depositions.
Finding no authority for such appointments in the Federal Rules, the author turns to the judiciary's "inherent power." Drawing principles from the seminal Supreme Court opinion in this area, Brazil infers that in some circumstances the courts' inherent authority is a sufficient premise for delegating discovery tasks to special masters. Noting that the reported cases contain no clear guidelines about when or how federal judges should use this authority in making pretrial appointments, Brazil concludes by calling for a new federal rule covering this important subject.     

Fleeting fame under the Trademark Dilution Revision Act of 2006

Legal context: When Congress enacted the Federal Trademark Dilution Act in1996, it intended to create a uniform federal cause of actionfor trade mark dilution. Unfortunately, the statutory languageselected by Congress created certain ambiguities, includinghow famous a trade mark had to be to merit dilution protectionunder the statute. Confusion developed as to whether a markmerely needed renown in a limited geographic area or industry—aconcept that became known as ‘niche fame’—orwhether it needed national renown to qualify as a ‘famousmark’. Key points: In 2006, Congress enacted the Trademark Dilution Revision Actand therein provided a concrete definition for a famous markthat ostensibly removed the ability to qualify for dilutionrelief where the mark was famous only within a particular niche.It was uncertain how courts that had previously favoured theniche fame theory would apply Congress's new definition. However,a district court in the Ninth Circuit, one of the strongestproponents of niche fame, recently held that niche fame is nolonger a viable theory under the Lanham Act or California statelaw as a result of the 2006 amendment. Practical significance: This decision portends that courts will fall in line with Congress'samendment and will deny dilution relief under federal law toparties whose marks are famous only in a particular geographicarea or industry. Additionally, the decision provides some guidanceand predictability as to how states may interpret the viabilityof niche fame under their respective dilution statutes in lightof Congress's 2006 amendment.     

Guilty plea hearings and judicial supervision: Some differences between federal and state judges regarding Rule 11 and a defendant’s right to due process

Samples of 120 district court judges from six randomly selected circuit court jurisdictions were compared with 62 circuit and criminal court judges in Tennessee concerning their compliance with Rule 11 of the Federal Rules of Criminal Procedure (U.S.C.A., 1986) governing guilty plea hearings. Among other things, Rule 11 provides that judges will inquire of defendants in open court about the voluntariness of their guilty pleas, whether they understand that they are waiving several important constitutional rights, whether there is a factual basis for the guilty plea, whether they realize they have a right to an attorney, and whether they understand the nature and consequences of the charges against them. It was found that federal judges are substantially in compliance with these provisions of Rule 11, although full compliance was not observed for all issue areas. By comparison, Tennessee trial judges adhered to these provisions (duplicated in the Tennessee Rules of Criminal Procedure verbatim) much less frequently. Various reasons for these discrepancies are discussed, as are some implications for defendant’s access to due process and certain constitutional guarantees.     

The false claims act and the eroding scienter in healthcare fraud litigation

This article addresses the federal government's expansive methods in tackling healthcare fraud, particularly in misapplying the False Claims Act. Although tasked with the obligation to curtail the fraudulent submission of Medicare & Medicaid claims, the U.S. government must rein in the current trend to utilize the False Claims Act against smaller medical providers. As the Act's original focus has ebbed in significance, the government has increasingly applied the False Claims Act to circumstances that do not evince actual fraud. In doing so, federal courts have effectively eroded the statute's critical scienter requirement. The federal common-law doctrines of "payment by mistake" and "unjust enrichment" adequately address the payment of non-fraudulent, albeit false, Medicare & Medicaid claims. Yet the federal government pursues these appropriate remedies only rarely and in the alternative, essentially when the government fails under the False Claims Act. Thus, this article argues for reform, calling for a clearer delineation between remedial and punitive measures. In cases involving smaller medical providers, courts should strictly limit the False Claims Act to those instances where fraud is clearly manifest.     

Gender,Critical Mass,and Judicial Decision Making

We examine the role of gender in legal decision making by applying critical mass theory to the U.S. federal district courts. We analyze whether behavioral differences manifest themselves in the decision‐making proclivities of male and female judges, contingent on the existence of a critical mass of female judges at a court point (i.e., each city in which a district court is located). Our results indicate that women jurists exhibit distinctive behavior in certain cases when there is a critical mass of women at a court point. These differences are most significant in criminal justice cases; modest differences between men and women are also identified in civil rights and liberties cases. Gender is not significant in labor and economic regulation cases. These findings suggest that the increasing presence of women on the federal bench could have substantial policy ramifications in the American polity.     

SOCIAL CLASS AS A FACTOR AFFECTING JUDICIAL DISPOSITION Defendants Charged with Criminal Homosexual Acts

This article examines the proposition that criminal defendants from lower social classes receive more severe judicial disposition than do criminal defendants from hgher social classes Evidence from cases involving prosecution for felonious homosexual acts does not lend much support to the proposition that there is social class bias in judicial disposition of criminal cases. Several models are discussed which might be used to orient future research into how courts handle criminal cases.     

Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts

The role of the prosecutor in criminal punishments remains a fervent topic of criminal justice discourse, yet it has received limited empirical attention, particularly for U.S. Attorneys in federal district courts. The present study examines charging and sentencing outcomes in federal courts by combining charging data from the Administrative Office of the U.S. Courts with sentencing data from the U.S. Sentencing Commission. The merger of these data sources overcomes limitations of each and provides for an investigation of the causes and consequences of federal prosecutorial charging decisions. Our investigation focuses on the subtle but important influences that extralegal offender characteristics exert in this process. Results indicate that some extralegal characteristics are intricately tied to the likelihood of charge reductions. Moreover, these effects sometimes interact to produce compound disadvantages for some groups of offenders. Our analyses are guided by contemporary theoretical perspectives on courtroom decision‐making.     

Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Questions regarding Brown v. Board of Education 's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.