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Full-Text Articles in Law

The Adjudication Business, Pamela K. Bookman Jan 2020

The Adjudication Business, Pamela K. Bookman

Faculty Scholarship

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts also challenges the traditional accounts of the competitive relationship between and among courts and arbitral tribunals for this business. London and New York have long been considered the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond.

The emerging scholarship addressing these new courts tends ...


Packing And Unpacking State Courts, Marin K. Levy Jan 2020

Packing And Unpacking State Courts, Marin K. Levy

Faculty Scholarship

When it comes to court packing, questions of “should” and “can” are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and Congress simply cannot do. Even though the Constitution’s text does not directly prohibit expanding or contracting the size of courts for political gain, many have argued that there is a longstanding norm against doing so, stemming from a commitment to judicial independence and separation of powers. And so (the argument goes), even though the political branches might otherwise be tempted to add or subtract seats to change the Court’s ...


Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas Jan 2020

Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas

Faculty Scholarship

Seventeen decisions in nine U.S. district courts from 2006 through 2019 have taken a demonstrably misgrounded starting point for Rooker–Feldman analysis. The cases have read language from a 2006 Supreme Court opinion, in which the Court quoted criteria stated by the lower court, as their guideline. But the Court summarily vacated the lower court’s judgment, and it had previously articulated, and has repeated, different criteria for federal courts to follow. The district-court decisions all appear to have reached correct results, but the mistake about criteria should be recognized and avoided as soon as possible before it creates ...


Covid, Crisis And Courts, Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg, Anna E. Carpenter Jan 2020

Covid, Crisis And Courts, Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg, Anna E. Carpenter

Faculty Scholarship

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of ...


Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak Jan 2020

Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak

Faculty Scholarship

The COVID-19 pandemic has already wrecked greater havoc in poor neighborhoods of color, where pre-existing conditions exacerbate the disease’s spread. Crowded housing and homelessness, less access to health care and insurance, and underlying health conditions are all factors that worsen the chances of remaining healthy.Workers desperate for income continue to work without sufficient protective measures, moving in and out of these neighborhoods, putting themselves and their families at risk. During periods of greater disruption, tensions are heightened and violence more prevalent. Already some experts are warning of an onslaught of child maltreatment cases, citing earlier examples of spikes ...


Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney Jan 2020

Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney

Faculty Scholarship

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the ...


How Courts In Criminal Cases Respond To Childhood Trauma, Deborah W. Denno Jan 2019

How Courts In Criminal Cases Respond To Childhood Trauma, Deborah W. Denno

Faculty Scholarship

Neurobiological and epidemiological research suggests that abuse and adverse events experienced as a child can increase an adult’s risk of brain dysfunction associated with disorders related to criminality and violence. Much of this research is predictive, based on psychological evaluations of children; few studies have focused on whether or how criminal proceedings against adult defendants consider indicators of childhood trauma. This Article analyzes a subset of criminal cases pulled from an 800-case database created as part of an original, large-scale, empirical research project known as the Neuroscience Study. The 266 relevant cases are assessed to determine the extent to ...


Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter Jan 2019

Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter

Faculty Scholarship

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the ...


Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson Jan 2019

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial ...


Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter Jan 2019

Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter

Faculty Scholarship

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the ...


Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark Jan 2018

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices ...


Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss Jan 2018

Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss

Faculty Scholarship

Writing about separation of powers with particular attention to the contrasting American and British views at the time of Trump and Brexit has been challenging and illuminating. The essay takes as its third framework the constrained parliamentarianism Prof. Bruce Ackerman celebrated in his essay, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000), and briefly considers its relative success in Australia, France, and Germany, and failure in Hungary and Poland, in achieving “separation of powers” universally understood ends, the prevention of autocracy and preservation of human freedoms. That courts and judges would not be political actors, that governments ...


Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark Jan 2018

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices ...


Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew Jan 2018

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional ...


Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel Jan 2017

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and ...


Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel Jan 2017

Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal ...


Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati Jan 2017

Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati

Faculty Scholarship

One of the most heated debates of the last two decades in U.S. legal academia focuses on customary international law’s domestic status after Erie Railroad v. Tompkins. At one end, champions of the “modern position” support customary international law’s (“CIL”) wholesale incorporation into post-Erie federal common law. At the other end, “revisionists” argue that federal courts cannot apply CIL as federal law absent federal legislative authorization. Scholars on both sides of the Erie debate also make claims about the sources judges reference when discerning CIL. They then use these claims to support their arguments regarding CIL’s ...


Courts Of Good And Ill Repute: Garoupa And Ginsburg’S Judicial Reputation: A Comparative Theory, Tracey E. George, G. Mitu Gulati Jan 2016

Courts Of Good And Ill Repute: Garoupa And Ginsburg’S Judicial Reputation: A Comparative Theory, Tracey E. George, G. Mitu Gulati

Faculty Scholarship

Nuno Garoupa and Tom Ginsburg have published an ambitious book that seeks to account for the great diversity of judicial systems based, in part, on how courts are designed to marshal the power of a high public opinion of the judiciary. Judges, the book posits, care deeply about their reputations both inside and outside the courts. Courts are designed to capitalize on judges’ desire to maximize their reputation, and judges’ existing stock of reputation can affect the design of the courts which they serve. We find much to like in this book, ranging from its intriguing and ambitious positive claims ...


Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young Jan 2016

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

Faculty Scholarship

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring and ...


Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo Jan 2016

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the ...


Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young Jan 2016

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.


Supremes, Jennifer L. Behrens Jan 2015

Supremes, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.


A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner Jan 2014

A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of ...


Judging Justice On Appeal, Marin K. Levy Jan 2014

Judging Justice On Appeal, Marin K. Levy

Faculty Scholarship

No abstract provided.


Trusting The Courts: Redressing The State Court Funding Crisis, Michael J. Graetz Jan 2014

Trusting The Courts: Redressing The State Court Funding Crisis, Michael J. Graetz

Faculty Scholarship

In recent years, state courts have suffered serious funding reductions that have threatened their ability to resolve criminal and civil cases in a timely fashion. Proposals for addressing this state court funding crisis have emphasized public education and the creation of coalitions to influence state legislatures. These strategies are unlikely to succeed, however, and new institutional arrangements are necessary. Dedicated state trust funds using specific state revenue sources to fund courts offer the most promise for adequate and stable state court funding.


Trusting The Courts: Redressing The State Court Funding Crisis, Michael J. Graetz Jan 2014

Trusting The Courts: Redressing The State Court Funding Crisis, Michael J. Graetz

Faculty Scholarship

In recent years, state courts have suffered serious funding reductions that have threatened their ability to resolve criminal and civil cases in a timely fashion. Proposals for addressing this state court funding crisis have emphasized public education and the creation of coalitions to influence state legislatures. These strategies are unlikely to succeed, however, and new institutional arrangements are necessary. Dedicated state trust funds using specific state revenue sources to fund courts offer the most promise for adequate and stable state court funding.


Can The Law Meet The Demands Made On It?, George C. Christie Jan 2014

Can The Law Meet The Demands Made On It?, George C. Christie

Faculty Scholarship

This is my contribution to a festscrift in honor of Professor Don Wallace on his retirement from the Georgetown University School of Law. My essay points out the problems and dangers of the increasing delegation to international and domestic courts, in broad and vague value-laden language, the responsibility of making basic moral and policy decisions for society. It saddles courts with a task that they are not particularly suited to perform and it is certainly not the way a democratic society should function.


Legitimacy And Lawmaking: A Tale Of Three International Courts, Laurence R. Helfer, Karen J. Alter Jan 2013

Legitimacy And Lawmaking: A Tale Of Three International Courts, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

This article explores the relationship between the legitimacy of international courts and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the European Court of Justice (ECJ), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The ECJ is the most activist, but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more ...


Judicial Attention As A Scarce Resource: A Preliminary Defense Of How Judges Allocate Time Across Cases In The Federal Courts Of Appeals, Marin K. Levy Jan 2013

Judicial Attention As A Scarce Resource: A Preliminary Defense Of How Judges Allocate Time Across Cases In The Federal Courts Of Appeals, Marin K. Levy

Faculty Scholarship

Federal appellate judges no longer have the time to hear argument and draft opinions in all of their cases. The average annual filing per active judgeship now stands at 330 filed cases per year — more than four times what it was sixty years ago. In response, judges have adopted case management strategies that effectively involve spending significantly less time on certain classes of cases than on others. Various scholars have decried this state of affairs, suggesting that the courts have created a “bifurcated” system of justice with “separate and unequal tracks.” These reformers propose altering the relevant constraints of the ...


Judging The Flood Of Litigation, Marin K. Levy Jan 2013

Judging The Flood Of Litigation, Marin K. Levy

Faculty Scholarship

The Supreme Court has increasingly considered a particular kind of argument: that it should avoid reaching decisions that would “open the floodgates of litigation.” Despite its frequent invocation, there has been little scholarly exploration of what a floodgates argument truly means, and even less discussion of its normative basis. This Article addresses both subjects, demonstrating for the first time the scope and surprising variation of floodgates arguments, as well as uncovering their sometimes-shaky foundations. Relying on in-depth case studies from a wide array of issue areas, the Article shows that floodgates arguments primarily have been used to protect three institutions ...