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Full-Text Articles in Courts

The Impact Of H.B. 214: A Critical Analysis Of The Texas "Rape Insurance" Bill, Lucie Arvallo Apr 2019

The Impact Of H.B. 214: A Critical Analysis Of The Texas "Rape Insurance" Bill, Lucie Arvallo

St. Mary's Law Journal

Texas House Bill 214 (H.B. 214) is subject to challenge under the Supreme Court precedent protecting a woman’s right to choose. Passed in 2017, H.B. 214 regulates Texas insurance markets by prohibiting coverage for an elective abortion unless a woman affirmatively opts into such coverage through a separate contract and pays a separate premium. Similar restrictions on insurance coverage for elective abortion in other states have been met with mixed results in the courts. What sets H.B. 214 apart from other regulations of insurance coverage for abortion is that it does not include any exceptions for ...


Empiricism And The Misdemeanor Courts: Promoting Wider, Deeper, And Interdisciplinary Study, Alisa Smith Apr 2019

Empiricism And The Misdemeanor Courts: Promoting Wider, Deeper, And Interdisciplinary Study, Alisa Smith

Pace Law Review

Since 1956, there have been three waves of scholarly attention on the misdemeanor courts. Despite this attention, misdemeanor courts remain understudied and overlooked. The object of this paper is to summarize the empirical research conducted over the last sixty years and identify the scholarly work that should be undertaken on the processing of misdemeanor offenders in our courts. Buoyed by the current interest in studying the misdemeanor courts, scholars should widen and deepen their study by replicating the work of others in a variety of jurisdictions, observing court proceedings, interviewing defendants and the courtroom workgroup, and assessing whether constitutional ideals ...


Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson Apr 2019

Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson

Lauren Sudeall

Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.

To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a rich source ...


Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle Apr 2019

Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle

Owen Jones

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience ...


Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank Apr 2019

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

Faculty Scholarship at Penn Law

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as ...


Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V Apr 2019

Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V

Public Land & Resources Law Review

The Fourth Circuit Court of Appeals recently ruled in favor of several governmental agencies seeking to construct a new bridge in the Pamlico Sound adjacent to North Carolina’s Outer Banks. For years, state and federal agencies have put forth a massive coordinated effort to address the constant weather damage and erosion which occurs to a section of North Carolina Highway 12. The court found the agencies properly cleared NEPA’s environmental review requirements for the bridge’s construction. Additionally, the opponent-litigants’ efforts to add claims challenging the project, based on new information about a shipwreck in the bridge’s ...


Privatizing Criminal Procedure, John D. King Apr 2019

Privatizing Criminal Procedure, John D. King

John D. King

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology ...


Selective Hearing: Communication Barriers In The Court System For Deaf And Hard-Of-Hearing Victims Of Rape Or Sexual Assault, Lauren Oberheim Apr 2019

Selective Hearing: Communication Barriers In The Court System For Deaf And Hard-Of-Hearing Victims Of Rape Or Sexual Assault, Lauren Oberheim

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown Apr 2019

The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown

Pepperdine Law Review

The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the ...


Habeas Corpus In The Age Of Guantánamo, Cary Federman Apr 2019

Habeas Corpus In The Age Of Guantánamo, Cary Federman

Cary Federman

The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then ...


Felon Jurors In Vacationland, James M. Binnall Mar 2019

Felon Jurors In Vacationland, James M. Binnall

Maine Law Review

Maine is the only jurisdiction in the United States that places no limitations on a convicted felon’s juror eligibility. Instead, Maine screens prospective felon-jurors using their normal jury selection procedures. In recent years, scholars have suggested that meaningful community engagement can help facilitate former offenders’ reintegration and criminal desistance. From that theoretical posture, a number of empirical studies have explored the connection between participation in the electorate and the reentry of former offenders. Those studies suggest that voting has the potential to prompt pro-social changes among former offenders. Still, to date, no research has focused on jury service as ...


Prosecuting In The Shadow Of The Jury, Anna Offit Mar 2019

Prosecuting In The Shadow Of The Jury, Anna Offit

Northwestern University Law Review

This Article offers an unprecedented empirical window into prosecutorial discretion, drawing on research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make commonsense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants, and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that ...


Indiana Civil Legal Needs Study And Legal Aid System Scan, Victor D. Quintanilla, Rachel Thelin Mar 2019

Indiana Civil Legal Needs Study And Legal Aid System Scan, Victor D. Quintanilla, Rachel Thelin

Books by Maurer Faculty

In 2017, the Indiana Coalition for Court Access entered into a partnership with Indiana University to conduct a statewide legal needs study. The IU Center for Law, Society & Culture and the IU Public Policy Institute submit this final report to the CCA. We designed this comprehensive study of legal needs to provide a relevant, reliable source of information with which the CCA, policymakers, and legal aid providers can make strategic decisions about where, when, and how to allocate resources for the effective, efficient delivery of civil legal services. We also designed this project to generate data and information that these ...


The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore Mar 2019

The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore

Michigan Law Review

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action ...


Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson Feb 2019

Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson

Faculty Scholarship at Penn Law

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering ...


The Interdependent Relationship Of A Free Press And An Independent Judiciary In A Constitutional Democracy, Robert J. Cordy Feb 2019

The Interdependent Relationship Of A Free Press And An Independent Judiciary In A Constitutional Democracy, Robert J. Cordy

Boston College Law Review

For nearly 240 years, we have recognized, at least constitutionally, that it is essential to the very existence of a constitutional democracy that there be an independent judiciary and a free press. What is not often appreciated is how dependent these two vital institutions are upon each other. Certainly, judges and journalists rarely think in such terms. But events occurring at home and around the world in fledgling and failing democracies should heighten our awareness and appreciation for their interdependence, and help us better understand the liberties and fundamental rights they protect.


Specialized Trial Courts In Patent Litigation: A Review Of The Patent Pilot Program's Impact On Appellate Reversal Rates At The Five-Year Mark, Amy Semet Feb 2019

Specialized Trial Courts In Patent Litigation: A Review Of The Patent Pilot Program's Impact On Appellate Reversal Rates At The Five-Year Mark, Amy Semet

Boston College Law Review

Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen select district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal of pilot judges by the Federal Circuit? This Article analyzes trial court patent cases filed from September 2011 through September 2016, focusing specifically on whether the appellate treatment of cases heard by district court judges participating ...


The Time Has Come For A Universal Water Tribunal, Tarek Majzoub, Fabienne Quilleré-Majzoub Feb 2019

The Time Has Come For A Universal Water Tribunal, Tarek Majzoub, Fabienne Quilleré-Majzoub

Pace Environmental Law Review

Since its inception in 1981, the International Water Tribunal has emerged as a non-governmental body with a multidisciplinary composition and a mandate based on conventional and customary international water law, which holds public hearings in order to address water-related complaints. This Article describes the historical background of the proposed Universal Water Tribunal (“UWT”) and significant difficulties on the horizon facing the proposed Tribunal (including political, practical, and legal-technical considerations). It then summarizes the key factors of such Tribunal and, finally, touches upon the proposed model based on an expanded concept of jurisdiction. The main underlying thesis is that, whereas the ...


The Thirteenth Amendment, Prison Labor Wages, And Interrupting The Intergenerational Cycle Of Subjugation, Josh Halladay Feb 2019

The Thirteenth Amendment, Prison Labor Wages, And Interrupting The Intergenerational Cycle Of Subjugation, Josh Halladay

Seattle University Law Review

This Comment argues that meager or no compensation for prisoners, who are disproportionately black and other persons of color, entraps them and their children in a cycle of subjugation that dates back to the days of slavery, and this Comment proposes to interrupt this cycle by setting a minimum wage for prisoners and creating college savings accounts for their children. As part of the cycle, when people enter prisons and the doors behind them close, so do their families’ bank accounts and the doors to their children’s schools. At the same time, the cells next to them open, ready ...


When A Tent Is Your Castle: Constitutional Protection Against Unreasonable Searches Of Makeshift Dwellings Of Unhoused Persons, Evanie Parr Feb 2019

When A Tent Is Your Castle: Constitutional Protection Against Unreasonable Searches Of Makeshift Dwellings Of Unhoused Persons, Evanie Parr

Seattle University Law Review

This Note will argue that all jurisdictions should follow the Washington State Court of Appeals, Division II in validating makeshift dwellings used by people experiencing homelessness as spaces protected from unwarranted police intrusions by shifting evaluations of “reasonable expectations of privacy” to a more equitable standard that appreciates the realities of economic disparity. This approach to constitutional protections against unreasonable searches and seizures is imperative to protect the rights of people experiencing homelessness, given that such individuals are regularly subjected to invasions of privacy and heightened exposure to the criminal justice system.


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Hushing Contracts, David A. Hoffman, Eric Lampmann Feb 2019

Hushing Contracts, David A. Hoffman, Eric Lampmann

Faculty Scholarship at Penn Law

The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, has attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy ...


Serial, Season Three: From Feeling To Structure, Jason Loviglio Jan 2019

Serial, Season Three: From Feeling To Structure, Jason Loviglio

RadioDoc Review

From the start, host and reporter Sarah Koenig presents the 2018 season of Serial as a corrective to the universe-in-a-grain-of-sand approach typical of earlier seasons and much of the work of This American Life, from which Serial spun off. In a thematic departure, Koenig sets out to tell the story of structures, rather than merely structure a story. The first character is a “cluster of concrete towers” in downtown Cleveland, called the Justice Center, a name we’ll quickly come to understand as ironic, if not Orwellian. Host Sarah Koenig describes the structure as “hideous but practical”. Koenig and company ...


Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law Jan 2019

Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law

School of Law Public Interest Auction

No abstract provided.


Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan Jan 2019

Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan

Ocean and Coastal Law Journal

In maritime personal injury cases, courts have traditionally seen prejudgment interest as part of the compensation due to a prevailing plaintiff. The goal of ensuring the fullest compensation possible has long been recognized as a basic principle of admiralty law. However, federal appellate courts are split over whether to award prejudgment interest on a mixed claim under general maritime law and the Jones Act. This Note explores this issue in Nevor v. Moneypenny Holdings, LLC, which was the first time the question had been raised in the First Circuit. The Fifth and Sixth Circuits have held that because prejudgment interest ...


The Disappointing History Of Science In The Courtroom: Frye, Daubert, And The Ongoing Crisis Of “Junk Science” In Criminal Trials, Jim Hilbert Jan 2019

The Disappointing History Of Science In The Courtroom: Frye, Daubert, And The Ongoing Crisis Of “Junk Science” In Criminal Trials, Jim Hilbert

Oklahoma Law Review

No abstract provided.


Down The Final Stretch: State Societal Settlements’ Res Judicata Repercussions, Ángel R. Oquendo Jan 2019

Down The Final Stretch: State Societal Settlements’ Res Judicata Repercussions, Ángel R. Oquendo

Washington University Global Studies Law Review

Like the chorus in Shakespeare’s Henry the Fifth, those who proceed on behalf of society at large should have both the first and last word. They should possess the capacity to undertake this act of representation, whether in or out of court, with forcefulness and finality. Indeed, a genuine representative should not have to run the risk of others thereafter embarking upon the matter anew and standing in for whomever she is representing, as well as casting aside her effort as irrelevant, insufficient, or illegitimate.

Therefore, a societal settlement, particularly when negotiated by the authorities, may have not only ...


The Failure Of Soft Law To Provide An Equitable Framework For Restitution Of Nazi-Looted Art, Michael J. Birnkrant Jan 2019

The Failure Of Soft Law To Provide An Equitable Framework For Restitution Of Nazi-Looted Art, Michael J. Birnkrant

Washington University Global Studies Law Review

It is estimated that over 20% of the art in Europe was looted by the Nazi regime during World War II. Many pieces were taken by force from Jewish art dealers, and much of the property taken during this period of Nazi spoliation was never returned. Heirs of looted art are still filing claims for restitution in various courts, but the current global patchwork of statutes of limitations and the availability of the “good faith purchaser defense” in many jurisdictions can render proceedings confusing and unjust.

This note explores the current state of the law regarding repatriation of Nazi-looted art ...


Measuring Norms And Normative Contestation: The Case Of International Criminal Law, Beth A. Simmons, Hyeran Jo Jan 2019

Measuring Norms And Normative Contestation: The Case Of International Criminal Law, Beth A. Simmons, Hyeran Jo

Faculty Scholarship at Penn Law

One way to tell if an international norm is robust is to assess the breadth of its support from a wide variety of important actors. We argue that to assess norm robustness, we should look at the general beliefs, rhetorical support, and actions of both primary and secondary norm addressees (states and non-state actors) at various levels: international, regional, domestic and local. By way of example, we evaluate the robustness of international criminal law (ICL) norms by looking at the rhetoric and actions of a diverse set of international actors, including not only states and intergovernmental organizations but also ordinary ...


Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich Jan 2019

Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich

Notre Dame Law Review

Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aversion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are ...