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Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark 2022 S.J. Quinney College of Law, University of Utah

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Utah Law Faculty Scholarship

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power ...


How Biden Began Building Back Better The Federal Bench, Carl Tobias 2021 University of Richmond School of Law

How Biden Began Building Back Better The Federal Bench, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in ...


A Taxonomy On Constitutional Court Appointment Mechanisms In Federal Countries, Molly Madden 2021 Indiana University, Bloomington

A Taxonomy On Constitutional Court Appointment Mechanisms In Federal Countries, Molly Madden

Indiana Journal of Constitutional Design

This paper provides a taxonomy of how federal countries appoint judges to their highest courts. Appointment mechanisms involve (1) little or no meaningful input from state government, (2) the states acting in an indirect role, or (3) substantial state government input. Within-group one, countries that allow for little to no meaningful input from state governments, some countries require that one federal body check another federal body during the appointment process, such as the federal executive’s nominees are confirmed by the federal senate. I first evaluate which court or entity in each country answers federalism questions, whether that is a ...


Constitutional Court Landscape Post - Arab Spring: A Survey Of Design, Dane Kirchoff-Foster 2021 Indiana University, Bloomington

Constitutional Court Landscape Post - Arab Spring: A Survey Of Design, Dane Kirchoff-Foster

Indiana Journal of Constitutional Design

This is a case study seeking to survey the landscape of constitutional courts in the MENA region after the Arab Spring. To accomplish this, the case study identifies the traditional functions of constitutional courts, then analyzes the design features present in post-Arab Spring constitutional courts to determine how and to what extent these design features help – or hinder – each court in fulfilling its traditional functions. Analysis of design features will focus on (1) which (and how many) constitutional matters the court is empowered to decide (court jurisdiction), (2) the processes by which a court is presented a matter upon which ...


“Corruptly” Continues Consistently Confounding Courts: A New Look At “Corruptly Persuades” In 18 U.S.C. § 1512(B) Obstruction Of Justice, Connor Nelson 2021 University of Utah, S.J. Quinney College of Law

“Corruptly” Continues Consistently Confounding Courts: A New Look At “Corruptly Persuades” In 18 U.S.C. § 1512(B) Obstruction Of Justice, Connor Nelson

Utah Law Review

The word “corruptly” presents significant interpretation problems to courts construing the word in statutes. This word has created a circuit split between the Second and Third Circuits over 18 U.S.C. § 1512(b), which forbids corruptly persuading witnesses not to cooperate with federal authorities. The Second Circuit requires defendants to have an improper purpose for persuading a witness not to cooperate. The Third Circuit requires defendants to know they have a corrupt motive behind their persuasion. Rather than declare one approach superior to the other, this Note instead contends that both Circuits achieve the same outcome for two reasons ...


Court Rejects Web Designer’S Challenge To Colorado Anti-Discrimination Law, Arthur S. Leonard 2021 New York Law School

Court Rejects Web Designer’S Challenge To Colorado Anti-Discrimination Law, Arthur S. Leonard

Other Publications

No abstract provided.


Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner 2021 University of Georgia, Athens

Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner

Journal of Food Law & Policy

Under their police power, governments regulate nuisances and take actions in emergency situations. For protecting humans, animals, and plants from diseases and other pests (jointly referred to as diseases), governments order inoculations, quarantine items and people, and seize and destroy property.' With respect to plants and animals, the United States Secretary of Agriculture is authorized to prohibit the importation and movement of items than may be infested. The Secretary also has the authority to hold, treat, and destroy items to prevent the dissemination of plant and animal pests. State governments take additional actions to


President Biden's Executive Order On Promoting Competition: An Antitrust Analysis, Herbert J. Hovenkamp 2021 University of Pennsylvania Carey Law School

President Biden's Executive Order On Promoting Competition: An Antitrust Analysis, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing ...


Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor 2021 University of Pennsylvania Carey Law School

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor

Faculty Scholarship at Penn Law

The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this paper, we canvas the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication ...


Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb 2021 University of Pennsylvania Carey Law School

Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Law

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a ...


A Miser’S Rule Of Reason: Student Athlete Compensation And The Alston Antitrust Case, Herbert J. Hovenkamp 2021 University of Pennsylvania Carey Law School

A Miser’S Rule Of Reason: Student Athlete Compensation And The Alston Antitrust Case, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The unanimous Supreme Court decision in NCAA v. Alston is its most important probe of antitrust’s rule of reason in decades. The decision implicates several issues, including the role of antitrust in labor markets, how antitrust applies to institutions that have an educational mission as well as involvement in a large commercial enterprise, and how much leeway district courts should have in creating decrees that contemplate ongoing administration.

The Court accepted what has come to be the accepted framework: the plaintiff must make out a prima facie case of competitive harm. Then the burden shifts to the defendant to ...


After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne 2021 University of Pennsylvania Carey Law School

After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne

Faculty Scholarship at Penn Law

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of ...


Constitutional Remedies As Constitutional Law, Martin H. Redish 2021 Northwestern University Pritzker School of Law

Constitutional Remedies As Constitutional Law, Martin H. Redish

Boston College Law Review

Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the countermajoritarian Constitution’s provisions. Absent judicial review, the fundamental speed bumps to tyranny that the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the ...


Recent Developments, Clinton T. Summers 2021 University of Arkansas, Fayetteville

Recent Developments, Clinton T. Summers

Arkansas Law Review

In a free speech and free exercise case involving the Business Leaders in Christ at the University of Iowa, the Eighth Circuit Court of Appeals reversed the Southern District of Iowa by holding that University officials should not be granted qualified immunity based on the student organization’s free speech claim.


Law School News: Nava Wins Inaugural Judicial Fellowship 06/23/2021, Michael M. Bowden 2021 Roger Williams University School of Law

Law School News: Nava Wins Inaugural Judicial Fellowship 06/23/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


The Chancellors Are Alright: Nationwide Injunctions And An Abstention Doctrine To Salve What Ails Us, Ezra Ishmael Young 2021 Cornell Law School

The Chancellors Are Alright: Nationwide Injunctions And An Abstention Doctrine To Salve What Ails Us, Ezra Ishmael Young

Cleveland State Law Review

This Article endeavors to reclaim the nationwide injunction as a valid exercise of federal equity power within the jurisdictional limits set by Article III. It posits that federal equity is expansive—it extends as far as necessary to provide a remedy where there is no adequate one at law. Historical and doctrinal context and critique are deployed to demonstrate that nationwide injunctions are not constitutionally ultra vires. This Article also posits that despite having expansive equity jurisdiction and powers, federal courts can and should in many cases exercise their constitutional discretion when sitting in equity to abstain in certain nationwide ...


The Role Of Atrocity Actors In Transitional Justice Processes In Sierra Leone, Nicoleta Mirza 2021 University of North Georgia

The Role Of Atrocity Actors In Transitional Justice Processes In Sierra Leone, Nicoleta Mirza

International Journal of Security Studies

The article observes the role of atrocity actors and mainly the victim, perpetrator, and bystander in the transitional Justice Processes in the country of Sierra Leone. The article examines such mechanisms as truth commissions, trials, and cultural practice. It seeks to identify if and how did the transitional justice mechanisms help the atrocity actors in the case of Sierra Leone. Nonetheless, before approaching the transitional justice processes in the presented case study, the research shortly defines the atrocity actors: victim, perpetrator, bystander. Moreover, the paper goes beyond simply observing the transitional Justice Processes in the chosen case studies. Therefore, in ...


Article Iii Standing, The Sword And The Shield: Resolving A Circuit Split In Favor Of Data Breach Plaintiffs, R. Andrew Grindstaff 2021 William & Mary Law School

Article Iii Standing, The Sword And The Shield: Resolving A Circuit Split In Favor Of Data Breach Plaintiffs, R. Andrew Grindstaff

William & Mary Bill of Rights Journal

The recent proliferation of data breaches is one such event requiring a rethreading of standing doctrine. The Courts of Appeal are currently split on whether to allow or deny standing for data breach plaintiffs—those persons seeking recourse from the entities that fell victim to the breach and therein lost plaintiffs’ data to an unknown third party. Standing requires plaintiffs to show some injury, and how courts approach the concept of injury in these data breach cases determines whether plaintiffs will survive the standing analysis. Despite the disparate treatment of litigants across the circuits, the Supreme Court has repeatedly punted ...


Christian Faith-Based Organizations As Third Party Interveners At The European Court Of Human Rights, Eugenia Relaño Pastor 2021 Brigham Young University Law School

Christian Faith-Based Organizations As Third Party Interveners At The European Court Of Human Rights, Eugenia Relaño Pastor

BYU Law Review

No abstract provided.


The Challenges And Aspirations Of The Digital Transformation Of The State Council Of Egypt, Moustafa Ahmad Kamal Mahmoud Ahmad 2021 American University in Cairo

The Challenges And Aspirations Of The Digital Transformation Of The State Council Of Egypt, Moustafa Ahmad Kamal Mahmoud Ahmad

Theses and Dissertations

The use of modern technology to support the transformation of governmental public operations and services including judicial ones, with the aim of increasing efficiency, efficacy, and transparency, has spread all over the world, especially in the last four decades. This trend has existed in Egypt since the 1980s but without substantive efforts until the middle of the first decade of the current millennium. Since then, there have been several discussions, plans, and promises regarding the use of modern technology to enhance the effectiveness of judicial operations and services, especially in light of the increasing severe criticism directed towards the Egyptian ...


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