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Articles 1 - 26 of 26
Full-Text Articles in Courts
Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr.
Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr.
Cleveland State Law Review
A 1968 amendment to the Ohio Constitution granted the Supreme Court of Ohio the authority to promulgate “rules governing practice and procedure” for Ohio courts. The amendment also provided that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect” and that no rule may “abridge, enlarge, or modify any substantive right.”
Although the amendment was explicit about automatic repeal of existing laws, it says nothing about whether the General Assembly may legislate on a procedural matter after a court rule takes effect. That silence has caused enduring confusion. …
How Big Money Ruined Public Life In Wisconsin, Lynn Adelman
How Big Money Ruined Public Life In Wisconsin, Lynn Adelman
Cleveland State Law Review
This Article discusses how Wisconsin fell from grace. Once a model good government state that pioneered many democracy-enhancing laws, in a very short time, Wisconsin became a state where special interest money, most of which is undisclosed, dominates politics. This Article identifies several factors as being critical to Wisconsin’s descent. These include the state’s failure to nurture and build on the campaign finance reforms enacted in the 1970s and both the state’s and the United States Supreme Court’s failure to adequately regulate sham issue ads. As evidence of Wisconsin’s diminished status, this Article describes how several of the state’s most …
Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira
Cleveland State Law Review
Multiple mistrials following validly-prosecuted trials are becoming an increasingly harsh reality in today’s criminal justice system. Currently, the Ohio Supreme Court has not provided any guidelines to help its trial judges know when to make the crucial decision to dismiss an indictment with prejudice following a string of properly-declared mistrials, especially due to repeated hung juries. Despite multiple mistrials that continue to result in no conviction, criminal defendants often languish behind bars, suffering detrimental psychological harm and a loss of personal freedom as they remain in “legal limbo” waiting to retry their case. Furthermore, continuously retrying defendants cuts against fundamental …
United States V. Osage Wind, Llc, Summer Carmack
United States V. Osage Wind, Llc, Summer Carmack
Public Land & Resources Law Review
The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …
Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg
Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg
University of Michigan Journal of Law Reform
Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve …
Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn
Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn
Vanderbilt Law Review
By and large, judicial authority is a product of perceived validity. Judges lack an independent means of enforcement; they wield "no influence over either the sword or the purse," "neither force nor will." Rather, the judicial branch operates under the auspices of its legitimacy, "a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands." When the public sees the judiciary as legitimate, it accepts and adheres to its rulings even when it may perceive certain decisions to be ideologically …
Improving Access To Justice In State Courts With Platform Technology, J.J. Prescott
Improving Access To Justice In State Courts With Platform Technology, J.J. Prescott
Vanderbilt Law Review
Access to justice often equates to access to state courts, and for millions of Americans, using state courts to resolve their disputes-often with the government-is a real challenge. Reforms are regularly proposed in the hopes of improving the situation (e.g., better legal aid), but until recently a significant part of the problem has been structural. Using state courts today for all but the simplest of legal transactions entails at the very least traveling to a courthouse and meeting with a decision maker in person and in a one-on-one setting. Even minimally effective access, therefore, requires time, transportation, and very often …
Corpus Linguistics: Misfire Or More Ammo For The Ordinary - Meaning Canon?, John D. Ramer
Corpus Linguistics: Misfire Or More Ammo For The Ordinary - Meaning Canon?, John D. Ramer
Michigan Law Review
Scholars and judges have heralded corpus linguistics—the study of language through collections of spoken or written texts—as a novel tool for statutory interpretation that will help provide an answer in the occasionally ambiguous search for “ordinary meaning” using dictionaries. In the spring of 2016, the Michigan Supreme Court became the first to use corpus linguistics in a majority opinion. The dissent also used it, however, and the two opinions reached different conclusions. In the first true test for corpus linguistics, the answer seemed to be just as ambiguous as before.
This result calls into question the utility of corpus linguistics. …
Improving Access To Justice In State Courts With Platform Technology, J. J. Prescott
Improving Access To Justice In State Courts With Platform Technology, J. J. Prescott
Articles
Access to justice often equates to access to state courts, and for millions of Americans, using state courts to resolve their disputes—often with the government—is a real challenge. Reforms are regularly proposed in the hopes of improving the situation (e.g., better legal aid), but until recently a significant part of the problem has been structural. Using state courts today for all but the simplest of legal transactions entails at the very least traveling to a courthouse and meeting with a decision maker in person and in a one-on-one setting. Even minimally effective access, therefore, requires time, transportation, and very often …
The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock
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 merger.
The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman
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.
Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita
Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita
St. Mary's Journal on Legal Malpractice & Ethics
The use of electronic social communication has grown at a phenomenal rate. Facebook, the most popular social networking website, has over 1,968,000,000 users—a number that has exponentially grown since its inception in 2004. The number of judges accessing and using electronic social media (ESM) has also increased. However, unlike the general population, judges must consider constitutional, ethical, technical, and evidentiary implications when they use and access ESM. The First Amendment forbids “abridging the freedom of speech” and protects the expression of personal ideas, positions, and views. However, the American Bar Association’s Model Code of Judicial Conduct and the Texas Code …
Justice Blackmun And Preclusion In The State-Federal Context, Karen Nelson Moore
Justice Blackmun And Preclusion In The State-Federal Context, Karen Nelson Moore
Dickinson Law Review (2017-Present)
No abstract provided.
Procedural Due Process Claims, Erwin Chemerinsky
Procedural Due Process Claims, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Timely Permanency Or Unnecessary Removal?: Tips For Advocates For Children Who Spend Less Than 30 Days In Foster Care, Christopher Church, Monique Mitchell, Vivek Sankaran
Timely Permanency Or Unnecessary Removal?: Tips For Advocates For Children Who Spend Less Than 30 Days In Foster Care, Christopher Church, Monique Mitchell, Vivek Sankaran
Articles
Removal and placement in foster care is child welfare’s most severe intervention, contemplated as “a last resort rather than the first.” Federal law, with an overarching goal of preventing unnecessary removals, bolsters this principle by requiring juvenile and family courts to carefully oversee the removal of children to foster care. Expansive research reminds the field that removal, while often necessary, is not a benign intervention. Physically, legally, and emotionally separating children from their parent(s) can traumatize children in lasting ways. Yet review of federal data concerning children in foster care reveal a troubling narrative: each year, tens of thousands of …
A Promise Unfulfilled: Challenges To Georgia’S Death Penalty Statute Post-Furman, William Cody Newsome
A Promise Unfulfilled: Challenges To Georgia’S Death Penalty Statute Post-Furman, William Cody Newsome
Georgia State University Law Review
In Furman v. Georgia, the U.S. Supreme Court agreed with Furman’s counsel. Three Justices agreed that Georgia law, as applied, was arbitrary and potentially discriminatory. Moreover, one Justice challenged the value of the death penalty and doubted it served any of the alleged purposes for which it was employed.
Although many challenges subsequent to Furman have been raised and arguably resolved by the Court, the underlying challenges raised by Furman appear to remain prevalent with the Court. Justice Breyer recently echoed the concurring opinions of Furman in his dissenting opinion from Glossip v. Gross, when he stated: “In …
Newsroom: Goldstein & Horwitz On 38 Studios Records 04-13-2017, Roger Williams University School Of Law
Newsroom: Goldstein & Horwitz On 38 Studios Records 04-13-2017, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Lessons From Ferguson On Individual Defense Representation As A Tool Of Systemic Reform, Beth A. Colgan
Lessons From Ferguson On Individual Defense Representation As A Tool Of Systemic Reform, Beth A. Colgan
William & Mary Law Review
This Article investigates the relationship between the decisions by lawmakers to use municipal and criminal systems to generate revenue and the lack of access to individual defense representation by using the Ferguson, Missouri, municipal court as a case study. The Article chronicles the myriad constitutional rights that were violated on a systemic basis in Ferguson’s municipal court and how those violations made the city’s reliance on the court for revenue generation possible. The Article also documents how the introduction of individual defense representation, even on a piecemeal basis, played a role in altering Ferguson’s system of governance. Using this case …
Contesting Victimhood: A Linguistic And Legal Anthropological Analysis Of Defendant Experiences In New York’S Human Trafficking Intervention Courts, Mark T. Romig
Dissertations, Theses, and Capstone Projects
Human Trafficking Intervention Courts (HTICs) have been operating in New York City in an effort to connect victims of human trafficking to treatment programs. Unfortunately, the net that the courts cast was too wide and people who did not identify as victims of human trafficking were coerced into treatment programs that they did not need or want. Through textual discourse analysis and ethnographic observation, this paper explores the contestation of victimhood in HTICs by focusing on the experiences of defendants and how they are perceived by the police, judges, and other agents of the HTICs. Before entering the HTICs, defendants …
Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati
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 domestic status. Interestingly, neither …
Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin
Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming.
The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr.
The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr.
All 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 doctrine, and find …
The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman
The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman
The Scholar: St. Mary's Law Review on Race and Social Justice
This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …
Second-Tier Certiorari: Adverse Precedential Effect As A Predicate For Finding A “Miscarriage Of Justice” In Government Appeals, John A. Greco
Second-Tier Certiorari: Adverse Precedential Effect As A Predicate For Finding A “Miscarriage Of Justice” In Government Appeals, John A. Greco
FIU Law Review
No abstract provided.
Without Explanation: Judicial Restraint, Per Curiam Affirmances, And The Written Opinion Rule, Craig E. Leen
Without Explanation: Judicial Restraint, Per Curiam Affirmances, And The Written Opinion Rule, Craig E. Leen
FIU Law Review
No abstract provided.
A Cure For “Acute Motion Sickness”: A Practitioner’S Guide To Motion Practice In Florida’S Appellate Courts, Kimberly Kanoff Berman
A Cure For “Acute Motion Sickness”: A Practitioner’S Guide To Motion Practice In Florida’S Appellate Courts, Kimberly Kanoff Berman
FIU Law Review
No abstract provided.