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The Senate Blue-Slip Process As It Bears On Proposals To Split The Ninth Circuit, Wyatt Kozinski 2017 Notre Dame Law School

The Senate Blue-Slip Process As It Bears On Proposals To Split The Ninth Circuit, Wyatt Kozinski

Journal of Legislation

No abstract provided.


Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran 2017 University of Michigan Law School

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Articles

In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court ...


United States V. Osage Wind, Llc, Summer Carmack 2017 Alexander Blewett III School of Law at the University of Montana

United States V. Osage Wind, Llc, Summer Carmack

Public Land and 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 ...


One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl 2017 William & Mary Law School

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one ...


Justice Scalia's Other Standing Legacy, Tara Leigh Grove 2017 William & Mary Law School

Justice Scalia's Other Standing Legacy, Tara Leigh Grove

Faculty Publications

No abstract provided.


Introduction, Adeline CHONG 2017 Singapore Management University

Introduction, Adeline Chong

Research Collection School Of Law

The drive to harmonise the recognition and enforcement of foreign judgment rules has gained momentum in recent years. First, there is the revival of the Judgments Project by the Hague Conference on Private International Law. The Judgments Project aims to develop a broad ranging convention on the recognition and enforcement of judgments in civil and commercial matters.1 Secondly, the Hague Convention of 30 June 2005 on Choice of Court Agreements (“HCCCA”), which was concluded in 2005, came into force on 1 October 2015. The HCCCA was born out of work done at earlier negotiations on the Judgments Project. When ...


Who's Afraid Of Judicial Activism? Reconceptualizing A Traditional Paradigm In The Context Of Specialized Domestic Violence Court Programs, Jennifer L. Thompson 2017 University of Maine School of Law

Who's Afraid Of Judicial Activism? Reconceptualizing A Traditional Paradigm In The Context Of Specialized Domestic Violence Court Programs, Jennifer L. Thompson

Maine Law Review

The Specialized Domestic Violence Pilot Project (Pilot Project), implemented in York and Portland in July and August 2002, is the result of the collaborative efforts of the District Court system, law enforcement, prosecutors, members of the defense bar, and various community agencies offering services to victims and perpetrators. District court judges are largely responsible for overseeing the changes in court procedures and implementing the new protocols in domestic violence cases. The Pilot Project, and the changes it is making to the role that courts play in domestic violence cases, represents a significant departure from the procedures followed by traditional court ...


The False Idolarty Of Rules-Based Law, John C. Sheldon 2017 University of Maine School of Law

The False Idolarty Of Rules-Based Law, John C. Sheldon

Maine Law Review

When the Supreme Court outlawed segregation in public schools in 1954, it acknowledged this social truth: assigning separate public facilities to separate classes of people fosters inequality among those classes. Although Brown v. Board of Education of Topeka addressed only educational facilities, the Court quickly broadened the scope of its decision, applying it to racial discrimination in or at public beaches, buses, golf courses, parks, municipal airport restaurants and state courtrooms. And although Brown addressed only racial discrimination, it quickly became the basis for condemning many forms of discrimination, including race, religion, wealth, gender, age, and disability. What gave Brown ...


Improving Access To Justice In State Courts With Platform Technology, James J. Prescott 2017 University of Michigan Law School

Improving Access To Justice In State Courts With Platform Technology, James 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 ...


What Got Into The Court? What Happens Next?, Linda Greenhouse 2017 University of Maine School of Law

What Got Into The Court? What Happens Next?, Linda Greenhouse

Maine Law Review

We are now in the midst of an amazing Supreme Court term--more than half-way through on the calendar, far short of halfway through in terms of what has yet to be decided. It's been a roller-coaster term of sorts, beginning with the highly unusual early-September argument in the campaign finance case, followed by a rather quiet fall and winter, and then ending with an April sitting during which the Court will consider, in the context of the country's response to terrorism, cases that are likely to go quite far to define for the modern age the meaning of ...


Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner 2017 University of Maine School of Law

Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner

Maine Law Review

Sentencing is different from almost all functions of the government and surely different from the other functions of the judiciary. It is the moment when state power meets an individual directly. It necessarily involves issues that are distinct from those in other areas of the law. It requires a court to focus on the defendant, to craft a punishment proportionate to the offense and to the offender. It should come as no surprise that in countries across the world, common law and civil code, totalitarian and free, judges have been given great discretion in sentencing. To be sure, that power ...


Reflections On The Challenging Proliferation Of Mental Health Issues In The District Court And The Need For Judicial Education, Jessie B. Gunther 2017 University of Maine School of Law

Reflections On The Challenging Proliferation Of Mental Health Issues In The District Court And The Need For Judicial Education, Jessie B. Gunther

Maine Law Review

Maine's courts constantly deal with litigants with mental health issues. Historically, our decisions have relied on expert testimony addressing specific issues of responsibility, risk, and treatment. In recent years, by my observation, court involvement in the treatment process has increased, but the availability of expert evidence has decreased. Thus, we as judges have become the ultimate decision-makers regarding litigants' mental health treatment in both criminal and civil contexts, without supporting expert testimony. In the face of this development, three interconnected issues arise. The first issue is whether judges should even attempt to fill the void caused by lack of ...


Abuse Of Discretion: Maine's Application Of A Malleable Appellate Standard, Andrew M. Mead 2017 University of Maine School of Law

Abuse Of Discretion: Maine's Application Of A Malleable Appellate Standard, Andrew M. Mead

Maine Law Review

It is not unusual for an appellate court to simply announce: “In the circumstances of this case, the trial justice did not abuse his discretion ....” No further clarification or elaboration is offered by the learned justices of the court. The parties are left with a final judgment, but little understanding of the appellate court's review process. Although the objective of finality is satisfied, the objective of clarity is ignored. When litigants and counsel are faced with similar factual or legal circumstances in the future, they remain without guidance or insight into the factors that the appellate court deemed to ...


Judges, Racism, And The Problem Of Actual Innocence, Stephen J. Fortunato Jr. 2017 University of Maine School of Law

Judges, Racism, And The Problem Of Actual Innocence, Stephen J. Fortunato Jr.

Maine Law Review

The facts and data are in and the conclusion they compel is bleak: the American criminal justice system and its showpiece, the criminal trial, harbor at their core a systemic racism. For decades, criminologists, law professors, sociologists, government statisticians, and others have been collecting and collating data on crime, punishment, and incarceration in the United States. These intrepid scholars have looked at crime, criminals, and the justice system from all angles—the race of defendants and victims; the relationship of poverty to criminality; severity of crime; severity of punishment; incarceration rates for different racial groups; sentencing and sentence disparities; and ...


Witness For The Client: A Judge's Role In Increasing Awareness In The Defendant, Joyce Wheeler 2017 University of Maine School of Law

Witness For The Client: A Judge's Role In Increasing Awareness In The Defendant, Joyce Wheeler

Maine Law Review

My participation in a new drug treatment court over the last few years signifies a transformation of this judge's application of herself in the courtroom. I have moved from the traditional role of judge to a more fluid role in which I begin from the stance as witness for the client and, when necessary, move to the more traditional decision-making responsibility of a judge. Awareness of the change occurred over time, but became most apparent in the context of an adult drug treatment court that integrates drug and alcohol treatment into the criminal justice system. A number of factors ...


When The Court Speaks: Effective Communication As A Part Of Judging, Daniel E. Wathen 2017 University of Maine School of Law

When The Court Speaks: Effective Communication As A Part Of Judging, Daniel E. Wathen

Maine Law Review

One of my early judicial role models, Justice James L. Reid of the Maine Superior Court, was sentencing a defendant for a murder committed within the confines of the Maine State Prison. The defendant was already serving a life sentence for another murder at the time the offense was committed. Because Maine has no parole or capital punishment, the sentencing options were limited and ultimately meaningless. As Jim imposed a life sentence consecutive to the existing life sentence, the defendant rose in his manacles and uttered an early Anglo-Saxon version of “screw you.” Jim, rising from the bench and moving ...


Some Reflections On Dissenting, Kermit V. Lipez 2017 University of Maine School of Law

Some Reflections On Dissenting, Kermit V. Lipez

Maine Law Review

In the collegial world of appellate judging, where the dominant impulse is consensus, dissents depart from the norm. If their language is sharp, the dissents may offend colleagues and worry court watchers who expect consensus. These self-assigned opinions also add to the pressures of the work. Given these implications, the choice to dissent should never be a casual one. You must weigh the institutional and personal costs and benefits, understand the purpose of the dissent and the audiences for it, and always be attentive to style and tone. In a haphazard sort of way, I consider these issues when I ...


Inside The Arbitrator's Mind, Susan D. Franck, Anne van Aaken, James Freda, Chris Guthrie, Jeffrey J. Rachlinski 2017 American University, Washington College of Law

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

Jeffrey J. Rachlinski

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 ...


Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis 2017 University of Maine School of Law

Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis

Maine Law Review

The George W. Bush administration responded to the terrorist attacks of September 11th with far-reaching assertions of a vast commander-in-chief power that it has often insisted is substantially free of effective judicial or legislative checks. As Scott Shane wrote in the December 17, 2005 edition of the New York Times, "[f]rom the Government's detention of [American citizens with no or severely limited access to courts, and none to attorneys, families, or friends] as [alleged] 'enemy combatants' to the just disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of ...


Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn 2017 University of Maine School of Law

Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn

Maine Law Review

The Copyright Act establishes protection for original, creative works of authorship as a means of providing ex ante incentives for creativity. But how real is that protection? Imagine that you have written a script and managed to have your play produced in a local community theater. A few years later, you find that a major Hollywood studio has taken your script, adapted it slightly, and made it into the next summer blockbuster, raking in millions without ever obtaining a license from you. Of course, you can sue them for infringement. But how much will that litigation cost and what are ...


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