Courts Commons^™

Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

University of Michigan Journal of Law Reform

First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed. Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of “adequacy …

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Tennessee Law Review

No abstract provided.

Simple Audits For Simple Tax Partnerships, Andrew L. Lawson

Tennessee Law Review

New rules targeting sophisticated tax partnerships unnecessarily burden small, unsophisticated taxpayers. This is a familiar narrative in partnership tax. This time, the story takes place in the rules that prescribe the process by which the IRS audits and collects tax from partnerships and partners. Designed to limit abuse, the rules are highly complex and needlessly saddle small, simple businesses with increased compliance costs and potentially excessive tax liability. Ironically, at the same time, the rules leave loopholes for sophisticated organizations able to exploit them. This Article explains these disparate consequences and suggests solutions to both limit the loopholes for large …

The Future Of Roe V. Wade: Do Abortion Rights End When A Human's Life Begins?, Steven Andrew Jacobs

Tennessee Law Review

While legal scholars and Supreme Court Justices on both sides of the national abortion controversy argue that Roe v. Wade was incorrectly decided, this Article accepts the Court's decision as a provisional holding that was based on the relevant societal, scientific, and legal records available to the Court in 1973. However, the stare decisis analysis outlined by the Court in Planned Parenthood v. Casey dictates that precedent can be overturned when a change in relevant facts robs a ruling of its original justification. If the Court agrees to hear a challenge to Roe, it will likely assess whether the relevant …

Feminist Action Against Pornography In Japan: Unexpected Success In An Unlikely Place, Caroline Norma, Seiya Morita

Dignity: A Journal of Analysis of Exploitation and Violence

In late 2016 a feminist movement against problems of commercial sexual exploitation, and especially issues of coerced pornography filming, arose in Japan. This article describes the history of this movement as it mobilized to combat human rights violations perpetrated by the country’s pornographers. The movement’s success came not spontaneously or haphazardly; in fact, it was orchestrated earlier over a full decade-and-a-half by activists who persevered in researching and highlighting pornography’s harms in a civil environment of hostility, isolation and social derision, even among progressive groups and individuals. The Anti-Pornography and Prostitution Research Group (APP) was particularly prominent in this history. …

The Meaning Of A Misdemeanor In A Post-Ferguson World: Evaluating The Reliability Of Prior Conviction Evidence, John D. King

Georgia Law Review

Despite evidence that America’s low-level courts are
overburdened, unreliable, and structurally biased,
sentencing judges continue to uncritically consider a
defendant’s criminal history in fashioning an
appropriate punishment. Misdemeanor courts lack
many of the procedural safeguards that are thought to
ensure accuracy and reliability. As with other stages of
the criminal justice system, people of color and poor
people are disproportionately burdened with the
inaccuracies of the misdemeanor system.
This Article examines instances in which sentencing
courts have looked behind the mere fact of a prior
conviction and assessed whether that prior conviction
offered any meaningful insight for the subsequent
sentence. …

Symbolism And The Thirteenth Amendment: The Injury Of Exposure To Governmentally Endorsed Symbols Of Racial Superiority, Edward H. Kyle

Michigan Journal of Race and Law

One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state …

Keep The Federal Courts Great, Carl Tobias

Law Faculty Publications

Ever since Donald Trump began running for President, he has incessantly vowed to “make the federal judiciary great again” by deliberately seating conservative, young, and capable judicial nominees, a project which Republican senators and their leader, Mitch McConnell (R-KY), have decidedly embraced and now vigorously implement. The chief executive and McConnell now constantly remind the American people of their monumental success in nominating and confirming aspirants to the federal courts. The Senate has expeditiously and aggressively confirmed two very conservative, young, and competent Supreme Court Justices and fifty-three analogous circuit jurists, all of whom Trump nominated and vigorously supported throughout …

The Meaning Of Life: A Study Of The Use Of Parole Ineligibility For Murder Sentencing, Isabel Grant, Crystal Choi, Debra Parkes

All Faculty Publications

A number of legal developments in recent years suggest that murder sentencing may be becoming increasingly punitive. This study examines two aspects of setting parole ineligibility. First, using cases from three two-year time periods spanning the past three decades, the authors explore whether judicial calculations of parole ineligibility for second degree murder have changed over time. Second, the authors examine changes enacted in 2011 to allow parole ineligibility to be imposed consecutively for those who commit more than one murder. The study finds a national trend towards reduced reliance on the minimum 10-year period of parole ineligibility, a slight increase …

Retroactive Adjudication, Samuel Beswick

All Faculty Publications

This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a …

A Colonial Castle: Defence Of Property In R V Stanley, Alexandra Flynn, Estair Van Wagner

All Faculty Publications

In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered his farm. Boushie died instantly. Stanley relied on the defence of accident and was found not guilty be an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime), much of which was of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass shaped the trial, yet were not tested by the jury through a formal invocation of the defence of property.

The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.

With Gratitute From Our Daughters: Reflecting On Justice Ginsburg And United States V. Virginia, Meredith Johnson Harbach

Law Faculty Publications

“What enabled me to take part in the effort to free our daughters and sons to achieve whatever their talents equipped them to accomplish, with no artificial barriers blocking their way?”

—Ruth Bader Ginsburg

On September 18, 2020, we mourned the loss of Justice Ruth Bader Ginsburg, whom many considered not just a cultural icon, but a national treasure. Among many other things, Justice Ginsburg became a later-in-life feminist “rock star,” celebrated for her rousing and impassioned dissents, her fearless defense of equality and autonomy rights, her championing of civil rights, and her persistent determination in the face of injustice. …

Concepts, Not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions And Precedent, Howard Wasserman

Faculty Publications

Battle lines are drawn on the permissibility and validity of injunctions in federal constitutional litigation purporting to halt government enforcement of a challenged law against all possible targets of that law and to protect all rights holders against enforcement. Courts, members of the Supreme Court, and legal scholars are divided — some supporting and others rejecting them as impermissible.; I have staked my position in the latter camp.

From that starting point, this paper considers three subsidiary issues: 1) the proper label for these injunctions, arguing that “universal” or “non-particularized” is a more accurate term than the prevailing “nationwide”; 2) …

Boldly Marching Through Closed Doors: The Experiences Of The Earliest Female Attorneys In Their Own Words, Nicole P. Dyszlewski

Roger Williams University Law Review

No abstract provided.

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 …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Tailoring Copyright To Protect Artists: Why The United States Needs More Elasticity In Its Protection For Fashion Designs, Robin M. Nagel

University of Richmond Law Review

For as long as copyright protection has existed in the United States, protection has never expressly extended to fashion designs because copyright law categorizes fashion designs as “useful articles” that do not receive any protection. In the eighteenth century, this policy perhaps made sense—most clothing was generic, non-decorative, and required little creativity for many of the everyday garments people wore. Clothing in the eighteenth century was commonly made up of useful articles that served very little purpose outside of their utility. However, in today’s society, fashion has transformed into an industry that prizes creativity, ingenuity, innovation, and something more than …