Courts Commons^™

Law School News: The Honorable Edward C. Clifton: Doctor Of Laws, Honoris Causa 05-17-2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Shakespeare In The Courts, Douglas E. Abrams

Faculty Publications

This article continues the theme of recent “Writing It Right” articles in the Journal of the Missouri Bar. These articles describe how federal and state judges today frequently accent their opinions’ substantive or procedural rulings with references to cultural markers that can resonate with the advocates, parties, and judges who comprise the opinions’ readership. The courts’ broad array of cultural references demonstrates versatility. Some of my early articles in the Journal profiled judicial opinions that referenced terminologies, rules, and traditions of baseball, football, and other sports. Together these sports’ mass audiences help define American culture.

Later my Journal articles profiled …

Foreign Judgments: The Limits Of Transnational Issue Estoppel, Reciprocity, And Transnational Comity, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

In Merck Sharp & Dohme Corp v Merck KGaA [2021] SGCA 14, a full bench of the Singapore Court of Appeal addressed the limits of transnational issue estoppel in Singapore law, and flagged possible fundamental changes to the common law on the recognition and enforcement of foreign judgments in Singapore. The litigation involves multiple parties spread over different jurisdictions. The specific facts involved in the appeal are fairly straightforward, centring on what has been decided in a judgment from the English court, and whether it could be used to raise issue estoppel on the interpretation of a particular term of …

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Utah Law Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Supreme Court Fact-Finding And The Distortion Of American Democracy: Hearing Before The Subcommittee On Federal Courts, Oversight, Agency Action And Federal Rights Of The Committee On The Judiciary, Senate, One Hundred Seventeenth Congress, First Session, Allison Orr Larsen

Congressional Testimony

No abstract provided.

International Decision Commentary: Houngue Éric Noudehouenou V. Republic Of Benin, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The judgment in Houngue Éric Noudehouenou v. Republic of Benin adds to the growing body of human rights jurisprudence on national electoral processes in Africa’s international courts. The decision demonstrates the growing importance of Africa’s regional and sub-regional courts as an alternative venue for opposition politicians, activists, and citizens to mobilize and challenge election processes and constitutional amendment processes where the playing field in their state is uneven. In turn, it reinforces the pivotal role of the regional and sub-regional courts in consolidating democratic governance in Africa, and reveals the limits of assessing the performance of Africa’s international courts solely …

The Insights, Uses, And Ethics Of Social Neuroscience In Anti-Discrimination Law, Susan Carle

Articles in Law Reviews & Other Academic Journals

The article explores the uses in anti-discrimination law of social neuroscience—a broad interdisciplinary field that draws on the insights of brain science, medicine, epidemiology, social psychology, behavioral economics, moral cognitive neuroscience and many other experimentally based disciplines. It discusses the promising uses of social neuroscience findings from all these subfields on such matters as the irrational biases of “fast” thinking processes in general, and implicit biases against “out” groups more specifically, as well as group conformity, the black sheep effect, and more. The article traces a few of the ways these insights can help inform anti-discrimination law in both particular …

Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce …

Brief Of Amicus Curiae Professor Susan Carle In Support Of The Plaintiffs Arguing For Affirmance In Johnson And Tinker V. City Of Boston, Ma, Susan Carle

Amicus Briefs

This brief is being submitted by a law professor, Susan D. Carle, with more than 30 years of expertise in federal employment and antidiscrimination law, and especially the history and purposes of disparate impact law. She submits this brief to share her expertise with this Court. She is currently Professor of Law and Vice Dean of American University Washington College of Law (organizational affiliation is offered for identification purposes only).

Scientific Gerrymandering & Bifurcation, Katrina F. Kuh, Megan Edwards, Frederick A. Mcdonald

Elisabeth Haub School of Law Faculty Publications

Environmental litigation must often examine the propriety of corporate conduct in areas of scientific complexity. In the second generation of climate nuisance suits, for example, allegations of corporate participation in the climate disinformation campaign are woven into plaintiffs’ claims. Toxic tort suits, currently and most notably in the Roundup and PFAS litigation, present another area of environmental litigation grappling with the legal ramifications of alleged corporate deception about scientific information. Toxic tort suits often surface allegations, and in many cases disturbing evidence, of what we term corporate “scientific gerrymandering”— corporate efforts to finesse, slow, or even mislead scientific understanding of …

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

Faculty Articles

In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul S. Heaton

All Faculty Scholarship

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the …

What Is A “Case”?, Lynn M. Mather

Journal Articles

This article interrogates the concept of a “case” in court, in an effort to clarify underlying concerns in debates over whether there is “too much” or “too little” litigation. One perspective on litigation takes a bottom-up view, examining the considerations and motives of disputing parties who file civil claims. This perspective includes theories about litigation and social structure, economics, dispute transformation, political participation, and psychology. An alternative top-down view examines litigation from the perspective of government, including its interest in dispute resolution, social control, and institutional capacities of courts. The article reviews and critiques existing literature on these perspectives and …

Using Random Assignment To Measure Court Accessibility For Low-Income Divorce Seekers, James D. Greiner, Ellen L. Degnan, Thomas Ferriss, Roseanna Sommers

Articles

We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Law School News: Rwu Law Alumnae Will Address Ginsburg Legacy, Workplace Gender Equity 03-11-2021, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Brief For Council Of Islamic Schools In North America, Partnership For Inner-City Education, And Union Of Orthodox Jewish Congregations Of America As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett, Michael H. Mcginley

Court Briefs

No. 20-1088
David and Amy Carson v. A. Pender Makin

On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court should grant certiorari in order to clarify that any discrimination on the basis of religious status or religious use is subject to “the most exacting scrutiny.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017).

Santa Fe Reporter Interviews Maryam Ahranjani: Change Of Venue, District Court Judge To Consider Defense’S Argument That A Fair Trial In The Slaying Of Basketball Star Is Impossible In Santa Fe, Maryam Ahranjani, Katherine Lewin

Faculty Scholarship

Maryam Ahranjani, a criminal law professor at the University of New Mexico, concedes that the "accessibility" of information is much different now than when the Founding Fathers ratified the Sixth Amendment (the right to a speedy and public trial by an impartial jury), but that the original idea of that section of the Constitution stemmed from the belief trials are best held in the community in which they occurred.

"Certainly judges are willing to change venues sometimes, consistent with that original idea that the local community is what defines the crime and so they're the ones who should determine whether …

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Essay offers an unconventional approach to deterring prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is …

The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow

Articles

Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. Yet our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating them to the roles of witness or bystander—even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their wrongs. Although …

Antitrust Antitextualism, Daniel A. Crane

Articles

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …

The Constitution And Democracy In Troubled Times, John M. Greabe

Law Faculty Scholarship

Does textualism and originalism approach positively impact democracy?

A Rule-Based Solution To The Appellate Body Crisis And Why The Mpia Would Not Work, Henry Gao

Research Collection Yong Pung How School Of Law

Over the past three years, the United States have been persistently blocking the appointment of members to the WTO Appellate Body, citing various concerns with its alleged “failure to follow the agreed rules”. The US blockage has resulted in an unprecedented crisis of the WTO dispute settlement system, which finally led to the paralysis of the Appellate Body in December 2019 when its member was reduced to the last one.

Initially focusing on the minor procedural errors of specific Appellate Body members, the US criticisms on the Appellate Body has morphed into broader attacks on the substantive jurisprudence and judicial …

California V. Texas: The Role Of Congressional Procedure In Severability Doctrine, Mary Leto Pareja

Faculty Scholarship

The United States Supreme Court is once again considering a case that challenges the constitutionality of the Affordable Care Act (“ACA”). In this round of litigation, plaintiffs argue that because Congress lowered the individual mandate tax penalty to zero in the 2017 Tax Act that makes the individual mandate itself unconstitutional and that, furthermore, the individual mandate cannot be severed from the rest of the ACA. The District Court agreed with the plaintiffs and struck down the entire ACA, and the Supreme Court granted cert to hear this momentous question. A decision is expected by summer of 2021.

The ACA …

Blowing Hot And Cold In Litigation: Abuse Of Process, Election Or Approbation And Reprobation? Bwg V Bwf [2020] Sgca 36, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This note analyses the Singapore Court of Appeal’s decision in BWG v BWF which allowed the adoption of inconsistent positions across related court proceedings against different parties. The decision raises crucial questions on the limits to be imposed on a party’s freedom to pursue opposing rights in litigation, and how the doctrines of abuse of process, election by waiver, and approbation and reprobation should be applied. It is argued that the court’s application of the abuse of process doctrine obscured the central exercise of assessing all the relevant interests and circumstances. The differing rationales underlying the common law doctrine of …

Designing Legal Experiences, Maximilian A. Bulinski, J.J. Prescott

Book Chapters

Technological advancements are improving how courts operate by changing the way they handle proceedings and interact with litigants. Court Innovations is a socially minded software startup that enables citizens, law enforcement, and courts to resolve legal matters through Matterhorn, an online communication and dispute resolution platform. Matterhorn was conceived at the University of Michigan Law School and successfully piloted in two Michigan district courts beginning in 2014. The platform now operates in over 40 courts and in at least eight states, and it has facilitated the resolution of more than 40,000 cases to date. These numbers will continue to grow …

The Reality Of Class-Action Appeals, Christine P. Bartholomew

Book Reviews

Reviewing Bryan Lammon, An Empirical Study of Class-Action Appeals (2020).

Law School News: Professor Gonzalez Is 2020 Rhode Island Lawyer Of The Year 01/11/21, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

“Born Under My Heart”: Adoptive Parents’ Use Of Metaphors To Make Sense Of Their Past, Present, And Future, Lucas Hackenburg, Toni Morgan, Eve Brank

Center on Children, Families, and the Law: Faculty Publications

Metaphors provide the opportunity to make sense of our experiences and share them with others. The current research qualitatively examined interviews with adoptive parents who had adopted through intercountry or private adoptions. Throughout their interviews, each participant used at least one metaphor in describing their experiences of adopting and raising their child. Overarchingly, the metaphor of “Adoption is a journey” encapsulated parents’ experiences. To demonstrate the journey, parents used metaphors to describe the past, present, and future. Metaphors of the past focused on their child’s trauma and the origin of how the child came to join their family. Metaphors used …