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Articles 1 - 30 of 2027

Full-Text Articles in Law

“Who Will Judge The Many When The Game Isthrough?”: Considering The Profound Differencesbetween Mental Health Courts And “Traditional”Involuntary Civil Commitment Courts, Michael L. Perlin Jun 2018

“Who Will Judge The Many When The Game Isthrough?”: Considering The Profound Differencesbetween Mental Health Courts And “Traditional”Involuntary Civil Commitment Courts, Michael L. Perlin

Seattle University Law Review

For forty years, we have known that involuntary civil commitment hearings are—in most jurisdictions—“charades.” When the Supreme Court noted, in Parham v. J.R., that the average length of a civil commitment hearing ranged from 3.8 to 9.2 minutes, the reaction of many who had done these cases was, “What? So long?!” The characterization of such hearings as being a “greased runway” to a state institution has never been disputed. Lawyers representing these individuals were bored or contemptuous; judges simply wanted to get cases moving; opposing counsel looked at their wrist watches to see when the ...


The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska May 2018

The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska

William & Mary Bill of Rights Journal

You, too, can sue Donald Trump under the Emoluments Clause!

Since Inauguration Day, several lawsuits have been filed against President Trump because of his refusal to divest certain assets. They assert that Trump’s business interests conflict with the Emoluments Clause of Article I. That arcane provision forbids certain federal officials from accepting any perquisite or gain from a foreign monarch or state. The suits contend, for example, that a foreign dignitary’s booking of a room at the Trump International Hotel in Washington, D.C. would constitute an unlawful emolument.

Most commentators quickly threw cold water on the prospect ...


Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang May 2018

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in ...


Report Of The Maine Commission On Gender, Justice, And The Courts, Maine Commission On Gender, Justice, And The Courts Mar 2018

Report Of The Maine Commission On Gender, Justice, And The Courts, Maine Commission On Gender, Justice, And The Courts

Maine Law Review

The Commission on Gender, Justice, and the Courts was established by the Maine Supreme Judicial Court in January 1993, pursuant to a resolution adopted by the Conference of Chief Justices in 1988 urging the creation of task forces to study gender bias and minority concerns within court systems. In recent years, forty-one states, the District of Columbia, and two federal circuits have established task forces on gender bias in the courts as part of a continuing effort to achieve equality for women and men in American society. These jurisdictions recognized that access to a neutral and unbiased court is essential ...


Newsroom: Have We Outgrown Brown? 02-06-2018, Michael M. Bowden Feb 2018

Newsroom: Have We Outgrown Brown? 02-06-2018, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


The Supreme "Courts" Of The Roman Empire, C.G. Bateman Jan 2018

The Supreme "Courts" Of The Roman Empire, C.G. Bateman

C.G. Bateman

Question
Why and how did Constantine go further than merely tolerating Christianity, and put himself at the head of their affairs and legislate Christian bishops into the position of Roman judges whose decisions were not subject to appeal? What effect did the rescript of 333 have on the meaning of the earlier edict of 318, and why is this important?[1]
 
Constantine, the Roman Emperor from 315-337, was a law-giver who first put the Christian Church in the place of primacy in the organization of the state that it only lost as recently as the seventeenth century; as such, he ...


One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller Jan 2018

One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller

Touro Law Review

No abstract provided.


Studying The "New" Civil Judges, Anna E. Carpenter Dec 2017

Studying The "New" Civil Judges, Anna E. Carpenter

Anna E. Carpenter

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 ...


A Comparative Examination Of Counter-Terrorism Law And Policy, Laurent Mayali, John Yoo Dec 2017

A Comparative Examination Of Counter-Terrorism Law And Policy, Laurent Mayali, John Yoo

Laurent Mayali

This article conducts a comparative analysis of U.S. and European counter-terrorism law and policy. Recent attacks vy ISIS in the U.S., France, and Germany have revealed important differences between American and European approaches. Before September 11, 2001, the United States responded to terrorism primarily with existing law enforcement authorities, though in isolated cases it pursued military measures abroad. In this respect, it lagged behind the approach of European nations, which had confronted internal terrorism inspired vy leftwing ideology or separatist goals. But after the 9-11 attacks, the United States adopted a preventive posture that aimed to pre-empt terrorist ...


Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis Nov 2017

Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis

Maine Law Review

The George W. Bush administration responded to the terrorist attacks of September 11th with far-reaching assertions of a vast commander-in-chief power that it has often insisted is substantially free of effective judicial or legislative checks. As Scott Shane wrote in the December 17, 2005 edition of the New York Times, "[f]rom the Government's detention of [American citizens with no or severely limited access to courts, and none to attorneys, families, or friends] as [alleged] 'enemy combatants' to the just disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of ...


Trending @ Rwu Law: Michael Bowden's Post: Celebrating Professor Tony Santoro 10-31-2017, Michael Bowden Oct 2017

Trending @ Rwu Law: Michael Bowden's Post: Celebrating Professor Tony Santoro 10-31-2017, Michael Bowden

Law School Blogs

No abstract provided.


The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock Oct 2017

The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock

Pace Law Review

In November 2017, voters in New York, for the first time in twenty years, will be asked to decide whether there “[s]hall be a convention to revise the constitution and amend the same?” If it is decided by the electorate to call a convention, “delegates will be elected in November 2018, and the convention will convene in April 2019.” One of the significant goals of a convention would be the achievement of court merger in the Empire State. The purpose of this perspective is to discuss the pros and cons of a constitutional convention with an emphasis on court ...


The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman Oct 2017

The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman

Pace Law Review

This article will focus on the judiciary reforms and access to justice—starting with reforms to the structure of the Unified Court System and discussing other ways that a constitutional convention might serve to improve the operation of the courts. The article will then explore the state’s deficiency in providing its low-income citizens access to justice in civil matters relating to housing, family safety and security, and subsistence income, and how a convention can highlight these issues.


Leach, Billy (Fa 1040), Manuscripts & Folklife Archives Aug 2017

Leach, Billy (Fa 1040), Manuscripts & Folklife Archives

FA Finding Aids

Finding aid only for Folklife Archives Project 1040. Paper titled "Folklore in the Kentucky Courtroom" in which Billy Leach challenges courtroom stereotypes by collecting anecdotal evidence from a local judge.


Courts And Arbitration: Reconciling The Public With The Private, Susan L. Karamanian Aug 2017

Courts And Arbitration: Reconciling The Public With The Private, Susan L. Karamanian

Arbitration Law Review

No abstract provided.


Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky Jun 2017

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Injustice Under Law: Perpetuating And Criminalizing Poverty Through The Courts, Judge Lisa Foster May 2017

Injustice Under Law: Perpetuating And Criminalizing Poverty Through The Courts, Judge Lisa Foster

Georgia State University Law Review

Money matters in the justice system. If you can afford to purchase your freedom pretrial, if you can afford to immediately pay fines and fees for minor traffic offenses and municipal code violations, if you can afford to hire an attorney, your experience of the justice system both procedurally and substantively will be qualitatively different than the experience of someone who is poor. More disturbingly, through a variety of policies and practices—some of them blatantly unconstitutional—our courts are perpetuating and criminalizing poverty. And when we talk about poverty in the United States, we are still talking about race ...


Proportionality Review In Administrative Law, Jud Mathews Mar 2017

Proportionality Review In Administrative Law, Jud Mathews

Jud Mathews

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences ...


Trial Courts: An Economic Perspective, Robert D. Cooter, Daniel L. Rubinfeld Feb 2017

Trial Courts: An Economic Perspective, Robert D. Cooter, Daniel L. Rubinfeld

Daniel L. Rubinfeld

This article describes economic research on models of legal disputes. Concepts such as rational choice and static equilibrium are often used inaccurately in the noneconomic research presented in this issue. This article critiques the longitudinal studies, illustrating a number of problems of conceptualization and data analysis. Finally, the authors consider normative models of dispute resolution and the evolution and effects of judge-made law.


Introduction (Unequal: How America's Courts Undermine Discrimination Law), Sandra F. Sperino, Suja A. Thomas Jan 2017

Introduction (Unequal: How America's Courts Undermine Discrimination Law), Sandra F. Sperino, Suja A. Thomas

Faculty Articles and Other Publications

This is chapter 1 of Sandra F. Sperino and Suja A. Thomas, Unequal: How America's Courts Undermine Discrimination Law (2017)


Finally, A True Elements Test: Mathis V.United States And The Categorical Approach, Rebecca Sharpless Jan 2017

Finally, A True Elements Test: Mathis V.United States And The Categorical Approach, Rebecca Sharpless

Articles

No abstract provided.


Judicial Federalism In The European Union, Michael Wells Jan 2017

Judicial Federalism In The European Union, Michael Wells

Scholarly Works

This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples ...


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 ...


Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky Jan 2017

Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key ...


The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr. Jan 2017

The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr.

Faculty Scholarship

In less than a decade, Delaware’s legislature has overruled its courts and reshaped Delaware corporate law on two different occasions, with proxy access bylaws in 2009 and with shareholder litigation bylaws in 2015. Having two dramatic interventions in quick succession would be puzzling under any circumstances. The interventions are doubly puzzling because with proxy access, Delaware’s legislature authorized the use of bylaws or charter provisions that Delaware’s courts had banned; while with shareholder litigation, it banned bylaws or charter provisions that the courts had authorized. This Article attempts to unravel the puzzle.

I start with corporate law ...


Informal, Inquisitorial, And Accurate: An Empirical Look At A Problem-Solving Housing Court, Jessica K. Steinberg Jan 2017

Informal, Inquisitorial, And Accurate: An Empirical Look At A Problem-Solving Housing Court, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

Substantive justice is often seen as elusive in courts dominated by low-income individuals. Complex court rules, coupled with pervasive lack of counsel, can make it difficult for the traditional adversary process to identify and redress legitimate grievances. This Article takes on the social problem of substandard housing and examines whether inquisitorial procedure has the potential to produce accurate outcomes in a tribunal dominated by the unrepresented.

Relying on in-court observations of nearly 300 hearings, and a longitudinal review of nearly 75 cases, this Article surfaces the regularized procedures utilized by a purported “problem-solving” housing court, and theorizes that the inquisitorial ...


The History Of The Florida Supreme Court, M C. Mirow Jan 2017

The History Of The Florida Supreme Court, M C. Mirow

Faculty Publications

This article describes the challenges to writing the history of Florida's colonial courts in the Spanish and British periods from 1513 to 1821. These courts are an important yet understudied aspect of Florida legal history.


Proportionality Review In Administrative Law, Jud Mathews Jan 2017

Proportionality Review In Administrative Law, Jud Mathews

Contributions to Books

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences ...


Rethinking Federal Diversion: The Rise Of Specialized Criminal Courts, Christine S. Scott-Hayward Jan 2017

Rethinking Federal Diversion: The Rise Of Specialized Criminal Courts, Christine S. Scott-Hayward

Berkeley Journal of Criminal Law

Specialized criminal courts have now become the focus of innovation at the front-end of the federal criminal justice system and appear to be the dominant form of diversion. These courts now exist in at least 21 federal districts. Their rapid proliferation is notable, given that over the same time period, the use of pretrial detention has increased, the use of existing federal diversion has declined significantly, and the imposition of alternative to incarceration sentences by judges has continued to decrease. Specialized criminal courts now appear to be the predominant response to continuing concerns among judges and other stakeholders about the ...


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 ...