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Lower Court Originalism, Ryan C. Williams 2022 Boston College Law School

Lower Court Originalism, Ryan C. Williams

Boston College Law School Faculty Papers

Originalism is among the most significant and contentious topics in all of constitutional law and has generated a massive literature addressing almost every aspect of the theory. But curiously absent from this literature is any sustained consideration of the distinctive role of lower courts as expositors of constitutional meaning and the particular challenges that such courts may confront in attempting to incorporate originalist interpretive methods into their own decisionmaking. Like most constitutional theories, originalism has tended to focus myopically on a select handful of decisionmakers—paradigmatically, the Justices of the Supreme Court—as the principal expositors of constitutional meaning. While ...


Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart 2022 Indiana University Maurer School of Law

Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart

Indiana Law Journal

Qualified immunity is a judicially created doctrine that shields government officials from personal liability for civil damages. Courts applying the doctrine, which is heavily dependent on the facts of the case, must determine whether the government officials’ conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. This inquiry is discretionary as judges must determine if the alleged violation was “clearly established,” a term that the Supreme Court has defined in conflicting ways. Moreover, when federal judges conduct the qualified immunity inquiry at the Rule 12(b)(6) motion to dismiss stage, their ...


A Reflection Of Canadian Society? An Analysis Of Federal Appointments To Provincial Superior Courts By The Liberal Government Of Justin Trudeau, Erin Crandall 2022 Acadia University

A Reflection Of Canadian Society? An Analysis Of Federal Appointments To Provincial Superior Courts By The Liberal Government Of Justin Trudeau, Erin Crandall

Dalhousie Law Journal

Recent reforms to Canada’s system of federal judicial appointments have sought to make the process more transparent and better able to produce a bench reflective of the society it serves. This paper reviews these reforms and using judicial appointment data (2016–2020), considers whether the Liberal government has met these objectives. The relationship between official bilingualism and representation on the bench is also considered. The paper finds that “diversity” on Canada’s federally appointed provincial courts remains unbalanced. While women have made up the majority of appointments since the Trudeau Liberals formed government in 2015, other equity-deserving groups, like ...


Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger 2022 University of Louisville

Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger

The Cardinal Edge

No abstract provided.


Public Access To Online Hearings, Jérémy Boulanger-Bonnelly 2022 University of Toronto Faculty of Law

Public Access To Online Hearings, Jérémy Boulanger-Bonnelly

Dalhousie Law Journal

The open court principle faced a significant challenge when courthouses closed their doors to limit the spread of COVID-19. The shift to online hearings in many jurisdictions generated new avenues for public access but also raised concerns for the privacy and security of individuals, and for the administration of justice. Building on existing principles and a review of the measures adopted by courts in Canada, the United Kingdom, the United States, and Australia during the pandemic, this paper seeks to identify best practices to preserve an appropriate balance between openness and competing interests in the online environment. It concludes that ...


If I Had More Time, Would I Have Written A Shorter And Faster Decision? An Empirical Examination Of The Evolution Of Trial Court Decisions, Jon Khan 2022 Osgoode Hall Law School

If I Had More Time, Would I Have Written A Shorter And Faster Decision? An Empirical Examination Of The Evolution Of Trial Court Decisions, Jon Khan

Dalhousie Law Journal

This article draws from my 2019 LLM thesis on Canadian judicial decisions, where I sought to understand two things: how current approaches to judicial decision-writing may impact access to justice and how might we make decisions a better source of data while also making them more timely, concise, accessible, and consistent. It presents the results and analysis of an original empirical study of the evolution of British Columbia trial decisions over 40 years (1980–2018). It argues that the current process for writing Canadian judicial decisions likely does not further the goals of access to justice and may even hinder ...


How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias 2022 University of Richmond School of Law

How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joe Biden speculated that the fifty-four talented, extremely conservative, and exceptionally young, appellate court judges whom then-President Donald Trump and two relatively similar Grand Old Party (GOP) Senate majorities appointed had left the federal appeals courts “out of whack.” Problematic were the many deleterious ways in which Trump and both of the upper chamber majorities in the 115th and 116th Senate undermined the courts of appeals, which are the courts of last resort for practically all lawsuits, because the United States Supreme Court hears so few appeals. The nomination and confirmation processes which Trump ...


Eviction Courts, Kathryn A. Sabbeth 2022 University of St. Thomas, Minnesota

Eviction Courts, Kathryn A. Sabbeth

University of St. Thomas Law Journal

No abstract provided.


Juvenile Protection Courts And The Pandemic: A View From Inside Out, Felice Batlan 2022 University of St. Thomas, Minnesota

Juvenile Protection Courts And The Pandemic: A View From Inside Out, Felice Batlan

University of St. Thomas Law Journal

No abstract provided.


Criminal Court System Failures During Covid-19: An Empirical Study, Cynthia Alkon 2022 Texas A&M University School of Law

Criminal Court System Failures During Covid-19: An Empirical Study, Cynthia Alkon

Faculty Scholarship

How did the criminal legal system respond to the early months of pandemic in 2020? This article reports the results of a unique national survey of judges, defense lawyers, and prosecutors that gives a snapshot of how the criminal legal system responded to the COVID-19 in the first five chaotic months. Criminal courts in the United States rely on in-person proceedings and formal and informal in-person communications to manage caseloads. The survey results detail, in ways not previously fully understood, how crucial these in-person communications are and how ill-prepared the criminal courts and legal professionals were to deal with the ...


The Principle Of Party Presentation, Jeffrey M. Anderson 2022 Samford University Cumberland School of Law

The Principle Of Party Presentation, Jeffrey M. Anderson

Buffalo Law Review

Our adversarial system of adjudication is characterized by active parties and (relatively) passive judges; the parties identify the issues in dispute, and the judge decides those issues. Sua sponte decision-making—whereby a judge raises and decides new issues not presented by the parties—undermines this adversarial system. For decades, courts and commentators have struggled to explain when sua sponte decision-making may be appropriate. That issue was particularly important to the late Justice Ruth Bader Ginsburg, who has been described as “The Great Proceduralist.” In a series of oral arguments and opinions during her tenure on the Supreme Court, Justice Ginsburg ...


Florida’S Judicial Ethics Rules: History, Text, And Use, Robert M. Jarvis 2022 Nova Southeastern University

Florida’S Judicial Ethics Rules: History, Text, And Use, Robert M. Jarvis

University of Miami Law Review

A handy summary of Florida’s federal and state judicial ethics codes does not exist. As a result, Florida attorneys and judges often must invest considerable time and effort when a question of judicial ethics arises. To assist such queries, this article provides a comprehensive description of both the Florida Code of Judicial Conduct and the Code of Conduct for United States Judges.


For The Right Reasons: The Rules Of The Game For Institutionalists, Rick Joslyn 2022 University of Connecticut

For The Right Reasons: The Rules Of The Game For Institutionalists, Rick Joslyn

Connecticut Law Review

The United States judiciary demonstrates better than any other constitutional institution the inherent fragility of American democracy. There is a reasonable debate to be had over when and exactly how the Supreme Court squandered the precious legitimacy on which its very existence rests. Yet, today, observers must confront with renewed urgency the impact crater of discontent that has been driven into the institution. The Court has been weaponized, politicized, and villainized; it has been lionized for its institutional heft. But increasingly loud voices have called for foundational reforms. There is a scramble for solutions to check the Court’s newly-emboldened ...


The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz 2022 College of William and Mary

The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz

Faculty Publications

Relying on a dataset I assembled of 130 doctors prosecuted for illegal opioid distribution between 2015 and 2019, this Article shows that judges rejected federal prosecutors’ sentencing recommendations over two-thirds of the time. Put differently, prosecutors lost much more often than they prevailed at sentencing. And judges often rejected the prosecutors’ sentencing positions by dramatic margins. In 23% of cases, judges imposed a sentence that was half or even less than half of what prosecutors recommended. In 45% of cases, judges imposed a sentence that was at least one-third lower than what prosecutors requested. In short, prosecutors lost most of ...


Judged By The (Digital) Company You Keep: Maintaining Judicial Ethics In An Age Of Likes, Shares, And Follows, John Browning 2022 St. Mary's University

Judged By The (Digital) Company You Keep: Maintaining Judicial Ethics In An Age Of Likes, Shares, And Follows, John Browning

St. Mary's Journal on Legal Malpractice & Ethics

Just like lawyers, judicial use of social media can present ethical pitfalls. And while most scholarly attention has focused on either active social media conduct by judges (such as posting or tweeting) or on social media “friendships” between judges and others, this Article analyses the ethical dimensions of seemingly benign judicial conduct on social media platforms, such as following a third party or “liking,” sharing, or retweeting the online posts of others. Using real-world examples, this Article analyses how even such ostensibly benign conduct can create the appearance of impropriety and undermine public confidence in the integrity and impartiality of ...


Judgments V Reasons In Federal Court Refugee Claim Judicial Reviews: A Bad Precedent, Sean Rehaag, Pierre-André Thériault 2022 Osgoode Hall Law School

Judgments V Reasons In Federal Court Refugee Claim Judicial Reviews: A Bad Precedent, Sean Rehaag, Pierre-André Thériault

Dalhousie Law Journal

This article offers an empirical examination of policies on the publication of refugee law decisions in Canada’s Federal Court. In 2015, the Court issued a notice describing the Court’s general practice of publishing written reasons in cases that the deciding judge considers as having precedential value and of issuing unpublished judgments in cases that the deciding judge does not view as precedential. In 2018, the Court reversed course and issued a new notice. This time, the Court indicated that all final decisions on the merits will be published.

Drawing on data obtained via automated data scraping processes from ...


Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly 2022 Brigham Young University Law School

Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly

BYU Law Review

Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court ...


An Exploration Of The Wide-Reaching Effects Of The Repeal Of Roe V. Wade On Women's Access To Abortion, Mitchell J. Foster 2022 Portland State University

An Exploration Of The Wide-Reaching Effects Of The Repeal Of Roe V. Wade On Women's Access To Abortion, Mitchell J. Foster

University Honors Theses

Since 1973, the federal government, through the Supreme Court of the United States, has acted to protect, the rights of women in their ability to choose to have an abortion without excessive governmental restriction. This thesis analyzes how and why access to abortion will shift in the face of the Supreme Court's overturning of Roe v. Wade (1973), likely to occur this June. This thesis begins with an in-depth description of how and why abortion became illegal, how and why abortion became legal, and how the opposition has developed against legal abortion. Through the last few decades, though especially ...


Entombed Writs' Effective Renaissance: Surveying And Sealing Federal Rule Of Civil Procedure 60(B)'S Interpretive Gaps, Amir Shachmurove 2022 Cleveland State University

Entombed Writs' Effective Renaissance: Surveying And Sealing Federal Rule Of Civil Procedure 60(B)'S Interpretive Gaps, Amir Shachmurove

Cleveland State Law Review

For centuries, the hoary principle of finality and the Latin-denominated writs devised so as to mollify its obduracy cast fearsome shadows, unchallenged within the courts of the British Isles. In the United States, these expatiated doctrines stalked with equal aplomb from the time of Chief Justice John James Marshall to the advent of the Federal Rules of Civil Procedure. For nearly 150 years, therefore, federal procedural law recognized only the skimpiest opportunities for renewed introspection afforded by these increasingly anachronistic constructs, ones nonetheless imbued with more and more of antiquity’s nearly sacerdotal sheen with each passing year.

In time ...


Massachusetts Needs More Ex-Public Defenders As Judges, Sadiq Reza 2022 Boston University School of Law

Massachusetts Needs More Ex-Public Defenders As Judges, Sadiq Reza

Shorter Faculty Works

Four to one.

That is the ratio of former prosecutors to public defenders who sit on the seven-person Supreme Judicial Court, our highest state court.

On our 25-member Appeals Court, which sits one level below the SJC and is the final word in the vast majority of criminal cases, the count is worse: 16 to three. But two of those former public defenders also worked as prosecutors before reaching the bench; and two other appellate judges, while never formal prosecutors, worked in the Attorney General's Office (i.e., in other law enforcement roles).

This staggering imbalance of experience and ...


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