Courts Commons^™

Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms

Brooklyn Law Review

The Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues …

Social Norms In Fourth Amendment Law, Matthew Tokson, Ari Ezra Waldman

Michigan Law Review

Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.

Courts assessing social norms generally adopt what we call the closure principle, or the idea that …

Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes

Washington and Lee Law Review

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might …

A Firm Pillar Of Local Justice: The Failures Of The New York Town And Village Justice Courts Supporting Statewide Adoption Of The District Court Model, Noah Sexton

Journal of Law and Policy

Town and village justice courts have been the center of municipal law, both civil and criminal, since the mid-nineteenth century. However, in the modern world, they have become corrupt, poorly managed institutions, creating issues involving procedural integrity and civil rights. In order to remedy these failures and modernize the New York State Unified Court System, state legislators must look to the district court model as it currently exists in Nassau and Eastern Suffolk Counties. The district court model offers several benefits, including the imposition of educational and experiential requirements for judges, the creation of internal and external oversight institutions, the …

Benevolent Exclusion, Anna Offit

Washington Law Review

The American jury system holds the promise of bringing common sense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the …

House Bill 3: An Iou Texas Public Schools And Communities Of Color Cannot Afford, Candace L. Castillo

The Scholar: St. Mary's Law Review on Race and Social Justice

A history of school finance litigation and legislation shows there are inherent and structural problems in Texas’s education finance system. Like many government and social structures, the Texas school finance system is built to benefit school districts that have greater access to wealth to begin with and creates inequalities between rich and poor populations as well as between people of color and Caucasians. House Bill 3 went into effect in 2019 and promises improvements to “recapture” calculations, increases in certain allotments, as well as salary increases for some Texas teachers. Some changes to education finance were sorely needed such as …

The Termination Of Parental Rights In Texas: The Long Run Cut Short For Parents In Bexar County, Gabriel A. Narvaez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Environmental Justice Class Action Rises Above The Rubbish: The Third Circuit Revives Common-Law Nuisance Remedies In Baptiste V. Bethlehem Landfill Co., Kyra G. Bradley

Villanova Environmental Law Journal

No abstract provided.

How The Conflict Between Anti-Boycott Legislation And The Expressive Rights Of Business Endangers Civil Rights And Antidiscrimination Laws, Debbie Kaminer, David Rosenberg

University of Richmond Law Review

This Article examines how opponents of anti-BDS laws may extend First Amendment rights in the business context to a point at which they actually threaten the validity of much antidiscrimination legislation. Part I discusses the BDS movement and state-based initiatives that attempt to penalize businesses that actively engage in a boycott of Israel. It examines the handful of cases in which federal courts have addressed the constitutionality of laws that require state contractors to affirm that they are not actively boycotting that country. Part II transitions to a discussion of the ways the Supreme Court has historically resolved conflicts between …

Increasing Substantive Fairness And Mitigating Social Costs In Eviction Proceedings: Instituting A Civil Right To Counsel For Indigent Tenants In Pennsylvania, Robin M. White

Dickinson Law Review (2017-Present)

The U.S. Constitution provides criminal defendants the right to a court-appointed attorney but gives no similar protection to civil litigants. Although federal law does not supply any categorical rights to counsel for civil litigants, all 50 states have instituted the right in at least one category of civil law that substantially impacts individuals’ rights. Since 2017, several U.S. cities have enacted such a right for tenants facing eviction. In so doing, these cities responded to American families’ increasing rent burden, the recent publication of nationwide eviction data, the sociological research concerning the impact of eviction, and the lack of procedural …

“We” The Jury: The Problem Of Peremptory Strikes As Illustrated By Flowers V. Mississippi, Kayley A. Viteo

St. Mary's Law Journal

Abstract forthcoming.

The Shifting Sands Of Cost Shifting, Andrew M. Pardieck

Cleveland State Law Review

The cost-shifting analysis employed by the federal courts in ruling on discovery disputes is flawed. There is tremendous variability in how courts interpret the factors guiding the analysis. There is tremendous variability in the information courts rely on in deciding whether to preclude the discovery or shift its costs. The result is waste for the litigants, courts, and society as a whole. This Article argues that there is a better way: mandate cooperation before cost shifting. The courts should condition proportionality and cost-shifting rulings on cooperation. The cooperation should be substantive: require disclosure of objective information about the disputed discovery …

Religious Exemptions As Rational Social Policy, Justin W. Aimonetti, M. Christian Talley

University of Richmond Law Review

In its 1963 decision Sherbert v. Verner, the Supreme Court interpreted the Free Exercise Clause to permit religious exemptions from general laws that incidentally burdened religious practice. Sherbert, in theory, provided stringent protections for religious freedom. But those protections came at a price. Religious adherents could secure exemptions even if they had no evidence the laws they challenged unfairly targeted their religious conduct. And they could thereby undermine the policy objectives those laws sought to achieve. Because of such policy concerns, the Court progressively restricted the availability of religious exemptions. In its 1990 decision Employment Division v. Smith …

The Bivens "Special Factors" And Qualified Immunity: Duplicative Barriers To The Vindication Of Constitutional Rights, Amelia G. Collins

University of Richmond Law Review

Part I of this note traces the history of the Bivens cause of action and analyzes the original “special factors” that concerned the Supreme Court. Part I also outlines the purpose behind implying a Bivens cause of action for plaintiffs bringing constitutional claims. Part II includes the same analysis of the qualified immunity defense, both to its history and purpose. Part III demonstrates how the Supreme Court has incorporated the concerns addressed by qualified immunity into the “special factors” analysis, rather than acknowledging the mitigating nature of immunity defenses when examining if any “special factors” exist. Finally, Part IV argues …

In Memoriam, Marvin Schick, Pioneer In The Study Of Courts, Jeffrey B. Morris

Touro Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

The Confusion Of Mcdonnell Douglas: A Path Forward For Reverse Discrimination Claims, Christian Joshua Myers

Seattle University Law Review

It is no secret that Title VII of the Civil Rights Act of 1964 is one of the most significant pieces of legislation ever passed by the United States Congress. Fiercely debated and enacted during the Civil Rights Movement of the 1960s, Title VII prohibits employers from engaging in various forms of discrimination within the workplace. For instance, employers may not unlawfully consider race, color, religion, sex, or national origin in employment decisions. Given Bostock v. Clayton County’s recent extension of Title VII’s protections to lesbian, gay, bisexual, transgender, and queer workers, this Article posits that evaluating Caucasian workers’ “reverse …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

Systemic Racism And Immigration Detention, Carrie L. Rosenbaum

Seattle University Law Review

The denouement of the Trump presidency was a white supremacist coup attempt against a backdrop of public reawakening to the persistence of institutionalized racism. Though the United States has entered a new administration with a leader that expresses his commitment to ending institutionalized racism, the United States continues to imprison Central American and Mexican immigrants at the southern border. If the majority of the people in immigration jails at the border are Latinx, does immigration law disparately impact them, and do they have a right to equal protection? If they do, would equal protection protect them? This Article explores whether …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

No, The Firing Squad Is Not Better Than Lethal Injection: A Response To Stephanie Moran’S A Modest Proposal, Michael Conklin

Seattle University Law Review

In the article A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, Stephanie Moran argues that the firing squad is the only execution method that meets the requirements of the Eighth Amendment. In order to make her case, Moran unjustifiably overstates the negative aspects of lethal injection while understating the negative aspects of firing squads. The entire piece is predicated upon assumptions that are not only unsupported by the evidence but often directly refuted by the evidence. This Essay critically analyzes Moran’s claims regarding the alleged advantages of the firing squad over …

Foreword, Seattle University Law Review

Seattle University Law Review

Foreword.

Introductory Remarks, Michael Rogers, Hannah Hamley, Rayshaun D. Williams

Seattle University Law Review

Introductory Remarks.

The Deans' Roundtable, Dean Angela Onwuachi-Willig, Dean Danielle Conway, Dean Tamara Lawson, Dean Mario Barnes, Dean L. Song Richardson

Seattle University Law Review

The Deans' Roundtable.

Marissa Jackson Sow’S “Whiteness As Contract”, Marissa Jackson Sow

Seattle University Law Review

Marissa Jackson Sow’s “Whiteness as Contract.”

Closing Remarks, Dontay Proctor-Mills

Seattle University Law Review

Closing Remarks.

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

Property Owners Look Out: The Train Is Coming, Natalie Crane

Seattle University Law Review

Over 4 million people currently live in the Puget Sound area in Washington state, and about 6 million people are expected to reside in the area by 2050. Additionally, Seattle renters faced a 71.2% increase in rent prices from 2010 to 2019. This data supports the need for much of the congested Seattle population to move outward and commute into the city for work. The implementation of a 116-mile system and other efforts to increase public transportation makes this need achievable and affordable.

This Comment focuses on the issue of just compensation in eminent domain; specifically, unique questions of compensation …