Courts Commons^™

Taking Courthouse Discrimination Seriously: The Role Of Judges As Ethical Leaders, Susan Saab Fortney

Faculty Scholarship

Sexual misconduct allegations against Alex Kozinski, a once powerful judge in the U.S. Court of Appeals for the 9^th Circuit, spotlighted concerns related to sexual harassment in the judiciary. Following news reports related to the alleged misconduct, Chief Justice John G. Roberts, Jr. charged a working group with examining safeguards to deal with inappropriate conduct in the judicial workplace. Based on recommendations made in the Report of the Federal Judiciary Workplace Conduct Working Group, the Judicial Conference approved a number of reforms and improvements related to workplace conduct in the federal judiciary. The reforms included revising the Code of …

Selling And Abandoning Legal Rights, Keith N. Hylton

Faculty Scholarship

Legal rights impose concomitant legal burdens. This paper considers the valuation and disposition of legal rights, and legal burdens, when courts cannot be relied upon to perfectly enforce rights. Because courts do not perfectly enforce rights, victims suffer some loss in the value of their rights depending on the degree of underenforcement. The welfare implications of trading away and abandoning rights are examined. Victims do not necessarily trade away rights when and only when such trade is socially desirable. Relatively pessimistic victims (who believe
their rights are weaker than injurers do) trade away rights too cheaply. Extremely pessimistic victims abandon …

The Future Of Facts: The Politics Of Public Health And Medicine In Abortion Law, Aziza Ahmed, Jason Jackson

Faculty Scholarship

While a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.[1] Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries make decisions between competing sets of public health and medical claims and second, courts …

Avoiding Judicial Discipline, Veronica Root Martinez

Faculty Scholarship

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and the rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into …

Assigned Counsel Mentoring Programs: Results And Lessons From Two Pilot Projects, Susan Saab Fortney

Faculty Scholarship

Working with a team of three subject matter experts, the National Legal Aid and Defender Association implemented and evaluated two pilot mentoring projects aimed at helping lawyers who serve as assigned counsel. This report discusses the program design, evaluation outcomes, and offers guidance through lessons learned for other jurisdictions interested in introducing assigned counsel mentoring programs. The author of the report was the principal investigator who evaluated the programs.

This project was supported by grant number 2015-AJ-BX-K043 awarded by the Bureau of Justice Assistance, Office of Justice Programs to the National Legal Aid and Defender Association. The opinions, findings, and …

Chief Justice William Howard Taft's Conception Of Judicial Integrity: The Legal History Of Tumey V. Ohio, Joshua E. Kastenberg

Faculty Scholarship

In 1927, Chief Justice William Howard Taft led a unanimous Court to determine that, at minimum, the right to an impartial and independent judiciary meant that the judge had to lack a personal interest in the outcome of the trial. While the decision, Tumey v. Ohio, was based on a judge’s pecuniary interest, it was also part of Taft’s efforts to ensure that the nation’s judges, from the municipal courts to the Supreme Court had the public’s confidence in their integrity. Tumey, therefore, is not simply a decision on pecuniary interests. It can, and should, be applied to …

Family Defense And The Disappearing Problem-Solving Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts began to flourish in the early 1990s with the creation of criminal drug courts as alternatives to standard criminal court practices. In the drug courts, defendants would receive treatment rather than incarceration and be monitored closely within the court. Family Court Treatment Parts (FCTPs) were developed in the late 1990s in New York State, fully embracing the three key components of the problem-solving drug court model: (1) an activist judge who helps to fashion, and then closely monitor, dispositions; (2) a team of lawyers, social workers, and court personnel who try to identify and then work toward commons …

The Rise And Fall Of Bad Judge: Lady Justice Is No Tramp, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Stacy Caplow, Lisa Griffin

Faculty Scholarship

No abstract provided.

In Defense Of Appearances: What Caperton V. Massey Should Have Said, Jed Handelsman Shugerman

Faculty Scholarship

In June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a $50 million jury verdict. While appealing this verdict, the company's CEO, Don Blankenship, spent $3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that …

Client Responsibility For Lawyer Conduct: Examining The Agency Nature Of The Lawyer-Client Relationship., Grace M. Giesel

Faculty Scholarship

In the 1962 decision of Link v. Wabash Railroad Co., the United States Supreme Court reviewed a district court's sua sponte dismissal of a diversity negligence action. Six years after the plaintiff filed the matter, the district court scheduled a pretrial conference and gave counsel two weeks notice of the scheduled conference. On the day of the conference, plaintiffs counsel called the court to say that he would be unable to attend the conference, giving the impolitic reason that he was busy preparing some documents for the state supreme court. The attorney did not attend the conference, and the district …

Do You See What I See - Reflections On How Bias Infiltrates The New York City Family Court - The Case Of The Court Ordered Investigation, Leah A. Hill

Faculty Scholarship

That the Family Court is ill-equipped to address the needs of the hundreds of thousands of cases handled therein is not news. Exploding caseloads, complex problems, and minimal resources are just a few of the ingredients that combine to undermine the Court's ability to fulfill its promise. What has been given less attention until very recently is the extent to which the Family Court's failures disproportionately impact low-income families of color. Any analysis of the Court's impact or efficacy must consider the context I have described in my observations of the Court- the images of black and brown litigants hurrying …

Federal Court Self-Preservation And Terri Schiavo, Jack M. Beermann

Faculty Scholarship

If the federal court in Florida had granted preliminary relief to allow itself more time to consider the constitutional claims that Terri Schiavo's parents brought on her behalf, and if, as expected, those claims were ultimately rejected, the federal court would have been placed in the unenviable position of having to be the institution that made the final decision to terminate Terri Schiavo's feeding and other treatment. Although I have no way of knowing whether this fact, which has not been noted in the commentary,' actually entered into the mind of any of the federal judges who considered the case, …

Unpublished Opinions And No Citation Rules In The Trial Courts, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

"Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel

Faculty Scholarship

Presumptions and burdens of proof are used, among other purposes, to maintain legal stability and at the same time effect change. By imposing the burden of proof on the party asserting a certain outcome, courts can calibrate burdens of proof and substantive rules until experience points to rule retention or amendment. As agents of change, presumptions and burdens of proof are far more flexible and less brittle than rules.¹

This Article tells the story of presumptions and burdens of proof in litigation between corporate shareholders and managements. This litigation is replete with volatile presumptions and innovative burdens of proof, …

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

Faculty Scholarship

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …

Specifying Grounds For Judicial Disqualification In Federal Courts., Leslie W. Abramson

Faculty Scholarship

One essential component of equal justice under the law is a neutral and detached judge to preside over the court proceedings. Public confidence in the legal system is maintained when a judge has no interest in the parties, attorneys or subject matter of the litigation. Sua sponte or by motion of a party, a federal judge is subject to disqualification for conflicts of interest on both constitutional and statutory grounds

Greenmail, The Control Premium And Shareholder Duty, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

Faculty Scholarship

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann

Faculty Scholarship

This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.¹ In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. ² Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, ³ thus settling a controversial …