Law Commons^™

Toward A Better Criminal Legal System: Improving Prisons, Prosecution, And Criminal Defense, David A. Harris, Created And Presented Jointly By Students From State Correctional Institution - Greene, Waynesburg, Pa, And University Of Pittsburgh School Of Law, Chief Editor: David A. Harris

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During the Fall 2023 semester, 15 law (Outside) students from the University of Pittsburgh School of Law and 13 incarcerated (Inside) students from the State Correctional Institution – Greene, in Waynesburg, Pennsylvania, took a full semester class together called Issues in Criminal Justice and Law. The class, occurring each week at the prison, utilized the Inside-Out Prison Exchange pedagogy, and was facilitated by Professor David Harris. Subjects include the purposes of prison, addressing crime, the criminal legal system and race, and issues surrounding victims and survivors of crime. The course culminated in a Group Project; under the heading “improving the …

The Federal Question Jurisdiction Under Article Iii: “First In The Minds Of The Framers,” But Today, Perhaps, Falling Short Of The Framers’ Expectations, Arthur D. Hellman

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As Chief Justice Marshall explained, “the primary motive” for creating a “judicial department” for the new national government was “the desire of having a [national] tribunal for the decision of all national questions.” Thus, although Article III of the Constitution lists nine kinds of “Cases” and “Controversies” to which the “judicial Power” of the United States “shall extend,” “the objects which stood first in the minds of the framers” were the cases “arising under” the Constitution, laws, and treaties of the United States. Today we refer to this as the federal question jurisdiction.

Of all federal question cases, the Framers …

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes

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Commentary about the Supreme Court's 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision's seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board ("CRB") unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB's composition did not offend the Appointments Clause as long as Copyright Royalty Judges ("CRJs") were removable atwill. But when the Court invalidated the selection process for administrative patent judges on a …

Views Of The Irish Judiciary On Technology In Courts: Results Of A Survey, Brian M. Barry Dr, Rónán Kennedy Dr

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Technology continues to transform how judges perform their functions, both in Ireland and elsewhere. This article reports the results of a survey of Irish judges on their use of technology in their role, their attitudes towards technology, and their views on how it impacts on the judicial function. The survey, part of a global survey, found that Irish judges habitually used digital technologies, and were broadly satisfied with the technology available in chambers, but less so with what was provided in courtrooms. Although generally happy to embrace change, the majority of respondents were concerned with, and did not prefer, online …

The New Laboratories Of Democracy, Gerald S. Dickinson

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Nearly a century ago, Justice Louis D. Brandeis’s dissent in New State Ice Co. v. Liebman coined one of the most profound statements in American law: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis reminded us of our strong tradition of federalism, where the states, exercising their sovereign power, may choose to experiment with new legislation within their separate jurisdictions without the concern that such …

Creating A Better, Fairer Criminal Justice System, David A. Harris, Created And Presented Jointly By Students From State Correctional Institution - Greene, Waynesburg, Pa, And University Of Pittsburgh School Of Law, Chief Editor: David A. Harris

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In the Fall 2022 semester, 14 law (Outside) students from the University of Pittsburgh School of Law and 14 incarcerated (Inside) students at the State Correctional Institution at Greene, in Waynesburg, Pennsylvania, took a full-semester class together called "Issues in Criminal Justice and the Law." The class, taught and facilitated by Professor David Harris, utilized the Inside-Out Prison Exchange Program pedagogy, emphasizing dialogic learning and peer teaching. The semester culminated with a group project, with the topic selected by the students: "creating a better, fairer criminal justice system." Members of the class organized themselves into small groups, each working for …

Judges, Judging And Otherwise: Do We Ask Too Much Of State Court Judges - Or Not Enough?, Michael C. Pollack

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Ask the average person to imagine what a judge does, and the answer will most likely be something right out of a courtroom from Law & Order — or Legally Blonde, Just Mercy, My Cousin Vinny, Kramer vs. Kramer, or any of the myriad law-themed movies and television shows. A judge is faced with a dispute brought by some parties and their lawyers and is charged with resolving it, whether it be a breach of contract, a tort action, a competing claim over property, a disagreement about the meaning of a statute, some accusation that someone …

Judicial Impartiality In The Judicial Council Act 2019: Challenges And Opportunities, Brian M. Barry Dr

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The Judicial Council is tasked with promoting and maintaining high standards of judicial conduct. The Judicial Council Act 2019 identifies judicial impartiality as a principle of judicial conduct that Irish judges are required to uphold and exemplify. Despite its ubiquity, judicial impartiality is perhaps under-explained and under-examined.

This article considers the nature and scope of judicial impartiality in contemporary Irish judging. It argues that the Judicial Council ought to take a proactive, multi-faceted approach to promote and maintain judicial impartiality, to address contemporary challenges that the Irish judiciary face including increasingly sophisticated empirical research into judicial performance, the proliferation of …

The Supreme Court’S Chief Justice Of Intellectual Property Law, Bob Gomulkiewicz

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Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

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There are two things that everyone knows about the Ninth Circuit Court of Appeals: it is very large, and it is very liberal. But common knowledge is sometimes wrong. Is that the case here?

About the first point – the Ninth Circuit’s size – there can be no dispute. The Ninth Circuit Court of Appeals has 29 authorized judgeships, almost twice as many as the second-largest court. But what about the second point – the liberalism? Knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether …

Nazi Stolen Art: Uses And Misuses Of The Foreign Sovereign Immunities Act, Vivian Grosswald Curran

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U.S. courts in Foreign Sovereign Immunities Act (“FSIA”) cases must interpret a comprehensive statute which has been said to stand or fall on its terms. At the same time, in Nazi-looted art cases, they do not ignore entirely the backdrop of the U.S.’ adoption of international principles and declarations promising to ensure the return of such art. To some extent, such an undertaking has been incorporated into a statutory amendment of the FSIA. The years 2021 and 2022 have seen major developments in the FSIA both at the U.S. Supreme Court and in the D.C. Circuit Court of Appeals in …

A Quiet Revolution: How Judicial Discipline Essentially Eliminated Foster Care And Nearly Went Unnoticed., Melissa Carter, Christopher Church, Vivek Sankaran

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This Article argues that juvenile court judges can safely reduce the number of children entering foster care by faithfully and rigorously applying the law. Judges often fail to perform this core functon when a state child welfare agency separates a child from their family. Judges must perform their role as impartial gatekeeper despite the temptation to be "omnipotent moral busybodies".

Racialized, Judaized, Feminized: Identity-Based Attacks On The Press, Lili Levi

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No abstract provided.

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

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This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

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In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran

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This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than of human rights, should …

Domestic Courts And The Generation Of Norms In International Law, Charles T. Kotoby Jr.

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International law in the form of treaty and custom is primarily shaped by national executives and legislatures. To be sure, “judicial decisions” are deemed a “subsidiary means for the determination of [international] law,” but that still does not give domestic courts an everyday role in the generation of universal norms and international law. This article proposes a more dynamic reality which elevates the importance of municipal courts in the generation and creation of international law. The truth is that domestic courts interact regularly to announce and create important universal norms—by, for instance, adjudicating expropriation claims, passing on the recognition and …

Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison

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The soccer referee stands in for a judge. Soccer’s Video Assistant Referee (“VAR”) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.

Jack Weinstein: Reimagining The Role Of The District Court Judge, Jessica A. Roth

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This essay, for a symposium issue of the Federal Sentencing Reporter dedicated to the impact of Judge Jack Weinstein on the occasion of his retirement from the federal bench, highlights how Judge Weinstein has re-imagined the role of the district court judge. Through his judicial opinions, extrajudicial writings and speeches, and his innovative use of the court’s supervisory authority, Judge Weinstein has challenged, and in some cases altered, the status quo in the realm of criminal sentencing. In doing so, he has established a forceful example of how district court judges can use their position to advocate for and effect …

Majestic Law And The Subjective Stop, Kyron J. Huigens

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Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …

On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah

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This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.

Mapping The Iceberg: The Impact Of Data Sources On The Study Of District Courts, Christina L. Boyd, Pauline T. Kim, Margo Schlanger

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Three decades ago, Siegelman and Donohue aptly characterized research about courts and litigation that relied only on published opinions as “studying the iceberg from its tip.” They implored researchers to view published district court opinions “with greater sensitivity to the ways in which such cases are unrepresentative of all cases”. The dynamic, multistage nature of trial court litigation makes a focus solely on published opinions particularly ill-suited to the study of federal district courts. Expanded electronic access to court documents now allows more pre-cise analysis of the ways in which published cases are unrepresentative and what differences that makes for …

Scandalizing The Judiciary: An Analysis Of The Uneven Response Of The Supreme Court Of India To Sexual Harassment Allegations Against Judges, Sanjay Jain, Saranya Mishra

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The Supreme Court of India (SC) pronounced a momentous judgment in Vishaka v. State of Rajasthan in 1997, categorically recognizing the menace of sexual harassment (SH) at workplace and constitutionally rendering it as being in violation of fundamental rights guaranteed by Articles 15, 19, and 21 of the Constitution of India 1950. The Court also provided a mechanism for redressal against SH, which was ultimately reinforced by Parliament with the enactment of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). However, when it comes to allegations of SH against judges in the SC and High Courts …

Examining The Case For Socialized Law, Myriam E. Gilles, Gary Friedman

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Most people would agree with Frederick Wilmot-Smith that the rich have no greater claim to justice than the poor. And yet, as Wilmot-Smith points out in his provocative book, Equal Justice: Fair Legal Systems in an Unfair World, our laissez-faire legal-services markets ensure sharply unequal justice for rich and poor. The prescription at the heart of Equal Justice is the deprivatization of markets for legal services. To realize the ideal of equal justice, Wilmot-Smith would equalize the legal talent available to all and replace the market system with a centralized regime loosely analogous to socialized medicine.

Wilmot-Smith’s bold ideas …

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

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In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

Muted Justice, Leah Litman

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The Chief Justice of the United States possesses significant power. His position as the senior most Justice on the U.S. Supreme Court allows him to assign opinions to other Justices and to coordinate scheduling the Court’s cases for argument. And after Justice Kennedy retired in June 2018, Chief Justice Roberts was the median Justice on the Court, whose vote often determined the outcome in a case. Even after Justice Barrett’s confirmation changed that state of affairs, the Chief remains an important Justice to watch.

Rediscovering The Issue Class In Mass Tort Mdls, Myriam E. Gilles, Gary Friedman

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For the past twenty-plus years, MDL transferee judges have essentially regarded the class device as unavailable as they struggle to organize masses of tort actions sent their way by the JPML. Even the badges and incidents of class practice, in the form of common-fund-based approaches to attorney compensation and lead-counsel structures for case organization, have come under attack from commentators who insist that mass-tort MDLs should not be treated as “quasi-class actions,” and that Rule 23 does not present a “grab bag” from which MDL judges may pick and choose the most convenient implements. Leading lights of the complex litigation …

Dignity And Civility, Reconsidered, Leah Litman

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People often talk about the Chief Justice, Justice Kagan, and Justice Breyer as the institutionalists on the modern Supreme Court. And that’s true, they are. Those Justices care about the Court as an institution and the Court’s reputation. They do not want people to look at the Court as a set of politicians in robes; and they do not want people to see judges as having ideological or partisan agendas. That is how they think of themselves, and they are willing to make compromises to maintain that image of the Court, and to set aside their personal beliefs in order …

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Anthony C. Infanti, Bridget J. Crawford

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In this essay, the authors discuss the intellectual foundations for their co-edited book, Feminist Judgments: Rewritten Tax Opinions (2017), the first in a series of subject-matter specific volumes published in the U.S. Feminist Judgments Series by Cambridge University Press. Using only the facts and precedents in existence at the time of the original opinion, the contributors to this and other feminist judgments projects around the globe seek to show how application of feminist perspectives could impact, or even change, the holding or reasoning of judicial decisions. Underlying Feminist Judgments: Rewritten Tax Opinions is the belief that the study of taxation …

An Unfinished Dialogue: Congress, The Judiciary, And The Rules For Federal Judicial Misconduct Proceedings, Arthur D. Hellman

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Federal judges can be impeached and removed from office for “high crimes and misdemeanors,” but what can be done to investigate and remedy less serious misconduct? Congress gave its answer 40 years ago when it passed the Judicial Conduct and Disability Act of 1980. The Act emerged from a series of complex interactions between Congress and the judiciary that could hardly be replicated today. Initially there was strong support, particularly in the Senate, for a centralized, “strictly adjudicatory” system, including a provision for removal of judges without impeachment. Over the course of several years, however, the judiciary persuaded Congress to …