Courts Commons^™

Vol. 6, Issue 1 Table Of Contents

SAIPAR Case Review

No abstract provided.

Editorial Board

SAIPAR Case Review

No abstract provided.

Editorial Note, O'Brien Kaaba, Kafumu Kalyalya

SAIPAR Case Review

No abstract provided.

Mubita Mwananuka V Armaguard Security Caz Appeal No. 201/2021, O'Brien Kaaba

SAIPAR Case Review

The Court of Appeal of Zambia, in the case of Mubita Mwananuka v Armaguard Security CAZ Appeal No. 201/2021, delivered a Ruling on 3rd August 2022 to divest the High Court General List of jurisdiction over employment matters. I argue that this decision is in clear violation of the Constitution and demonstrates bewildering disregard of precedents by the Supreme Court and the Constitutional Court, which bind the Court of Appeal.

Guardall Security Group Limited V. Reinford Kabwe Caz Appeal No. 44/2019, Chanda Chungu

SAIPAR Case Review

The Court of Appeal dealt with a judgment of the Industrial Relations Division of the High Court which was passed more than one year after the matter was commenced. The Court of Appeal interpreted sections 85(3)(b) (ii) and 94 (1) of the Industrial and Labour Relations Act which prescribe that judgment should be within one (1) year of the filing of the complaint and sixty (60) days from close of trial.

Savenda Management Services Limited V Stanbic Bank Zambia Limited & Gregory Chifire (Alleged Contemnor) (Appeal No. 37/2017) [2018] Zmsc 11, Mwami Kabwabwa

SAIPAR Case Review

Adjudicators have a social responsibility. When the Judiciary/judges carry out their constitutional mandate of dispensing justice it is critical to bear in mind that judges carry a level of responsibility for the impact that their decisions have on society. For this reason, judges ought to be held responsible for every judgment they render either good or bad. Contempt is an exceedingly powerful instrument in the hands of the courts to tame the conduct and behaviour of lawyers and lay people who come into contact with judicial authority. Like any other power, the exercise of contempt power has to be checked. …

Mutembo Nchito V Attorney General 2016/Cc/0029 (27 October 2020), O'Brien Kaaba, Pamela Towela Sambo

SAIPAR Case Review

No abstract provided.

Recklessness, Intent, And War Crimes: Refining The Legal Standard And Clarifying The Role Of International Criminal Tribunals As A Source Of Customary International Law, Brian L. Cox

Cornell Law Faculty Publications

This Article explores the substantive and procedural aspects of the assertion that recklessness is included on the spectrum of mens rea for war crimes as a matter of customary international law. The substantive aspect of the inquiry, in Part I, engages in a critical assessment of the assertion that the jurisprudence of international criminal tribunals indicates that recklessness is sufficient to support a war crimes prosecution in general. The procedural aspect, in Part II, contests the prevailing “principal-agent” construct of describing the relationship between states and international criminal tribunals and the resulting role of tribunals in establishing customary international law. …

Daniel Mwale V Njolomole Mtonga And Another Appeal No.004 (2019), Dunia P. Zongwe

SAIPAR Case Review

This is a classic case of sour grapes. After failing to secure a favourable decision from the judges, the losing party accused them of prejudice. This happened in the Mwale v Mtonga matter, decided by the Supreme Court of Zambia in 2019. When his appeal failed, Daniel Mwale reacted by accusing that court and the entire judiciary of corruption.

The Mwale v Mtonga dispute brings up a number of themes: perceptions of corruption in the courts, unjustified public attacks against the judiciary, constraints on judges’ ability to respond to those attacks, the airing of corruption allegations in the wrong forum, …

Abedinego Kapeshi And Another V The People Scz Selected Judgment No. 35 Of 2017, Gift Sangende

SAIPAR Case Review

In 2017, the appellants, being dissatisfied with the judgment of the Kabwe High Court appealed to the Supreme Court. They contended among other things, that the trial court erred in law to convict the appellants of murder. They further stated that the court erred in law to sentence the appellants to life imprisonment, as the sentence was excessive.

This case accorded the Supreme Court a great opportunity to discuss the belief in witchcraft and the offending conduct premised on that belief, as well as the multiple violations that are coupled with the same belief. Remarkably, the Court moved away from …

Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow

Cornell Law Faculty Publications

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized …

The Six-Month List And The Unintended Consequences Of Judicial Accountibility, Miguel F. P. De Figueiredo, Alexandra D. Lahav, Peter Siegelman

Cornell Law Review

A little-known mechanism instituted to improve judicial accountability and speed up the work of the federal judiciary has led to unintended consequences, many of them unfortunate. Federal district court judges are subject to a soft deadline known as the Six-Month List (the List). By law, every judge's backlog (cases older than three years and motions pending more than six months) is made public twice a year. Because judges have life tenure and fixed salaries, a mere reporting requirement should not influence their behavior. But it does. Using the complete record of all federal civil cases between 1980 and 2017 and …

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Cornell Law Review

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …

Abstention At The Border, Maggie Gardner

Cornell Law Faculty Publications

The lower federal courts have been invoking “international comity abstention” to solve a range of problems in cross-border cases, using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s recent reemphasis on the federal judiciary’s obligation to exercise congressionally granted jurisdiction. Indeed, loose applications of “international comity abstention” risk undermining not only the expressed preferences of …

Congressional Power To Strip State Courts Of Jurisdiction, Michael C. Dorf

Cornell Law Faculty Publications

The very substantial literature on the scope of congressional power to strip courts of jurisdiction contains a gap: it does not discuss the source of the affirmative power of Congress to strip state courts of their jurisdiction. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise of the power to ordain and establish lower federal courts, but what power does Congress exercise when it strips both state and federal courts of jurisdiction? The answer depends on the nature of the case. In stripping all courts of the power to hear federal …

Making State Civil Procedure, Zachary D. Clopton

Cornell Law Review

State courts matter. Not only do state courts handle more than sixty times the number of civil cases as federal courts, but they also represent an important bulwark against the effects of federal procedural retrenchment. Yet state courts and state procedure are notably absent from the scholarly discourse.

In order to evaluate state procedure—and in order to understand the states’ relationship to federal procedural retrenchment— this Article presents the first comprehensive study of who makes state civil procedure. This project begins with a systematic review of the formal processes by which states make their rules of procedure. Many of the …

A Jury Of Your [Redacted]: The Rise And Implications Of Anonymous Juries, Leonardo Mangat

Cornell Law Review

Since their relatively recent beginnings in 1977, anonymous juries have been used across a litany of cases: organized crime, terrorism, murder, sports scandals, police killings, and even political corruption. And their use is on the rise. An anonymous jury is a type of jury that a court may empanel in a criminal trial; if one is used, then information that might otherwise identify jurors is withheld from the parties, the public, or some combination thereof, for varying lengths of time.

Though not without its benefits, anonymous juries raise questions regarding a defendant’s presumption of innocence, the public’s right to an …

Procedural Retrenchment And The States, Zachary D. Clopton

Cornell Law Faculty Publications

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.

While I have much sympathy for the Court's critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court's decisions to limit court access-and despairing further developments in the age of Trump-we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are …

Degrees Of Deference: Applying Vs. Adopting Another Sovereign's Law, Kevin M. Clermont

Cornell Law Review

Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of federal law’s constraint on state actors, but also in the horizontal choice-of-law setting and even in connection with the status of international law. Application and adoption are different avenues by which to approach a pluralist world. Application involves the recognition of the other sovereign’s law …

Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy

Cornell Law Review

It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews …

Comity And International Courts And Tribunals, Thomas Schultz, Niccolo Ridi

Cornell International Law Journal

This study seeks to clarify the importance, current and potential, of the use of comity by international courts and tribunals. Our findings support the idea that comity might be an emerging principle of procedural law, though agreement on its exact meaning— or unequivocal choices among its many connotations— still tends to be uncommon. We submit that, as long as other solutions are not in place, the principle can be successfully employed to assist international courts and tribunals in mediating jurisdictional conflicts between themselves by balancing coordination efforts and the demands of justice in the individual cases.

Comity may serve as …

Trial By Numbers, Rebecca K. Helm, Valerie P. Hans, Valerie F. Reyna

Cornell Journal of Law and Public Policy

Legal cases often require jurors to use numerical information. They may need to evaluate the meaning of specific numbers, such as the probability of match between a suspect and a DNA sample, or they may need to arrive at a sound numerical judgment, such as a money damage award. Thus, it is important to know how jurors understand numerical information, and what steps can be taken to increase juror comprehension and appropriate application of numerical evidence. In this Article, we examine two types of juror decisions involving numbers--decisions in which jurors must convert numbers into meaning (such as by understanding …

Signing Statements And Presidentializing Legislative History, John M. De Figueiredo, Edward H. Stiglitz

Cornell Law Faculty Publications

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decisionmaking since the 1980s—as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive empirical examination of …

Inside The Arbitrator's Mind, Susan D. Franck, Anne Van Aaken, James Freda, Chris Guthrie, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

Legal Interpreter For The Jury: The Role Of The Clerk Of The Court In Spain, Mar Jimeno-Bulnes, Valerie P. Hans

Cornell Law Faculty Publications

The Clerk of the Court (secretario judicial) in Spanish provincial courts is an important legal actor in the proceedings of the modern Spanish jury, introduced in 1995. In contrast to the general verdicts of traditional common-law juries, Spanish juries must answer an often lengthy list of specific questions, and must provide the reasoning supporting these responses. Early on, many Spanish juries found the task of providing legally acceptable responses and reasons challenging. Because the law permits the clerk to enter the deliberation room to assist the jury in its writing of the verdict, the clerk has come to act as …

Plaintiphobia In State Courts Redux? An Empirical Study Of State Court Trials On Appeal, Theodore Eisenberg, Michael Heise

Cornell Law Faculty Publications

Prior federal and state civil appeals studies show that appeals courts overturn jury verdicts more than bench decisions and that defendants fare better than plaintiffs on appeal. Attitudinal and selection effect hypotheses may help explain an appellate court tilt that favors defendants. This study builds on and extends our prior work on state civil appeals and examines a comprehensive state court civil appeals data set to test leading theories on appellate outcomes as well as to explore the relation between plaintiff success at trial and on appeal. Using data from 40 different states and 141 counties on 8,872 completed civil …

Introduction To Juries And Lay Participation: American Perspectives And Global Trends, Nancy S. Marder, Valerie P. Hans

Cornell Law Faculty Publications

The jury in the United States is fraught with paradoxes. Even though the number of jury trials in the United States continues to decline, jury trials play a prominent role in American culture and continue to occupy headlines in newspapers and top stories on television. Americans might not always agree with the verdict that any given jury renders, but they continue to express their support for the jury system in poll after poll. This Symposium of the Chicago-Kent Law Review presents new theories and research, with a focus on the contemporary American jury. The Introduction begins by connecting discussions at …

Governing And Deciding Who Governs, Josh Chafetz

Cornell Law Faculty Publications

In McCutcheon v. Federal Election Commission, Chief Justice Roberts wrote that, "Campaign finance restrictions that pursue other objectives [than eradicating quid pro quo corruption or its appearance], we have explained, impermissibly inject the Government 'into the debate over who should govern.' And those who govern should be the last people to help decide who should govern."

This passage sounds great — after all, who could object to an attempt to purge official self-dealing, especially in the election-law context? And therein lies its insidiousness: this rousing language masks a programmatic attempt by Roberts and his colleagues to distance themselves rhetorically …

Courtroom Technology, Jessica Moyeda

Cornell Law School J.D. Student Research Papers

Courtroom technology, like all technology, will continue to change and, hopefully, improve. Technology can be an amazingly helpful resource, but it is only a tool. As lawyers develop and adapt to changes in technology, they must also remember to make efficient and effective use of these tools, to acquire the necessary training, and remember their obligation to the client.

Videoconference Technology And The Confrontation Clause, Russell Kostelak

Cornell Law School J.D. Student Research Papers

No abstract provided.