Law Commons^™

Changemakers: Master Of Studies In Law: 'Law Isn't A Foreign Language Anymore', Roger Williams University School O Law

Life of the Law School (1993- )

No abstract provided.

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 …

Racialized, Judaized, Feminized: Identity-Based Attacks On The Press, Lili Levi

Articles

No abstract provided.

Overstepping: U.S. Immigration Judges And The Power To Develop The Record, Jayanth K. Krishnan

Articles by Maurer Faculty

In 1952, Congress established a new federal position to be filled by “special inquiry officers” charged with overseeing deportation cases. These immigration judges—as they eventually came to be called—were assigned to work within the executive branch, namely, the Department of Justice, and they were to be answerable ultimately to a political appointee, the attorney general. Importantly, they received specific statutory authority allowing them to “develop the record” during an immigration case. This power enabled immigration judges to assemble evidence and call, “interrogate, examine, and cross‑examine . . . any witnesses.”

Given that many immigrants who appear in immigration court do …

Facts Versus Discretion: The Debate Over Immigration Adjudication, Jayanth K. Krishnan

Articles by Maurer Faculty

Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, some immigrants looking to avoid deportation may apply for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available …

Virtually Incredible: Rethinking Deference To Demeanor When Assessing Credibility In Asylum Cases Conducted By Video Teleconference, Liz Bradley, Hillary Farber

All Faculty Scholarship

The COVID-19 pandemic forced courthouses around the country to shutter their doors to in-person hearings and embrace video teleconferencing (VTC), launching a technology proliferation within the U.S. legal system. Immigration courts have long been authorized to use VTC, but the pandemic prompted the Executive Office for Immigration Review (EOIR) to expand video capabilities and encourage the use of video “to the maximum extent practicable.” In this technology pivot, we must consider how VTC affects cases for international humanitarian protections, where an immigration judge’s ability to accurately gauge an applicant’s demeanor can have life-or-death consequences.

This Article takes a deep dive …

Why Judges Can't Save Democracy, Robert L. Tsai

Faculty Scholarship

In The Specter of Dictatorship,¹ David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …

Copyright Takes To The Streets: Protecting Graffiti Under The Visual Artists Rights Act, Michaela S. Morrissey

Law Student Publications

Artists who choose the streets as their canvas—whether to beautify neighborhoods, spark political protest, or merely mark their territory—are faced with uncertainties when it comes to questions of copyright protection for their work. Prior to Castillo v. G&M Realty L.P., the rights granted to street artists had generally been uncharted territory. However, a verdict that pitted the rights of street artists against the rights of property owners finally gave street art the credibility many felt it long deserved. In Castillo, the United States Court of Appeals for the Second Circuit recognized graffiti as a work of visual art, thus …

Nonpartisan Supreme Court Reform And The Biden Commission, Daniel Epps

Scholarship@WashULaw

Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars and lawyers, the Commission was charged with drafting a report that would describe and analyze historical and current debates about reforming the Court. The eventual report seemed to make few observers happy. It reached few firm conclusions on the legality of any reform proposals and even fewer conclusions on any …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

Articles

There are two things that everyone knows about the Ninth Circuit Court of Appeals: it is very large, and it is very liberal. But common knowledge is sometimes wrong. Is that the case here?

About the first point – the Ninth Circuit’s size – there can be no dispute. The Ninth Circuit Court of Appeals has 29 authorized judgeships, almost twice as many as the second-largest court. But what about the second point – the liberalism? Knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether …

Court Review: Journal Of The American Judges Association, Vol. 58, No. 1, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

The Road to a Federal Family Court; Jane M. Spinak

The Role of Information Sharing to Improve Case Management in Child Welfare; Sarah J. Beal, Paul DeMott, Rich Bowlen, and Mary V. Greiner

Timely Permanency for Children in Foster Care: Revisiting Core Assumptions about Children’s Options and Outcomes; Sarah A. Font and Lindsey Palmer

The Deportation of America’s Adoptees; DeLeith Duke Gossett

Editor’s Note; Eve Brank

President’s Column; Yvette Mansfield Alexander

Crossword; Vic Fleming

Thoughts from Canada: The Impact of Anti-Black Racism on the Sentencing of “Black Offenders” in Canada: What Is the Correct Approach?; Wayne K. Gorman

The Resource …

Court Review: Journal Of The American Judges Association, Vol. 58, No. 3, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Civil Cases in the Supreme Court’s October Term 2021; Thomas M. Fisher

Threats to Impartiality in Capital Jury Selection: Addressing Dead-Serious Falsifications; Richard Rogers, Eric Y. Drogin, and Sara E. Hartigan

Science-Based Recommendations for the Collection of Eyewitness Identification Evidence; Margaret Bull Kovera, Jacqueline Katzman, Jennifer M. Jones, and Melanie B. Fessinger

Editor’s Note; David J. Dreyer

President’s Column; Yvette Mansfield Alexander

Crossword; Vic Fleming

Thoughts from Canada: Assessing Credibility: The Impact of a Motive to Lie and the Embellishment of Evidence -- the Canadian Approach; Wayne K. Gorman

The Resource Page: Democracy's Last Line of Defense: A …

Court Review: Journal Of The American Judges Association, Vol. 58, No. 4, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Interview

Stresses of the Job in Modern Times: Coaching Resilience in Judges, Peer-to-Peer, an Interview with Jan Bouch; David Prince

Articles

Prosecutorial Misconduct: Assessment of Perspectives from the Bench, Saul M. Kassin, Stephanie A. Cardenas, Vanessa Meterko, and Faith Barksdale

Limiting Access to Remedies: Select Criminal Law and Procedure Cases from the Supreme Court’s 2021-22 Term, Eve Brensike Primus and Justin Hill

You Can Change Judging and Justice, Thomas R. French

The Online Courtroom: Leveraging Remote Technology in Litigation American Bar Association, Tort, Trial, and Insurance Practice Section, J. Gary Hastings

Departments

Editor’s Note, Eve Brank, David Dreyer, and David …

Court Review: Journal Of The American Judges Association, Vol. 58, No. 2, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

The Military Divorce: An Overview; Joseph A. DeWoskin, Mark E. Sullivan and Dan Wiley

The American Psychological Association’s Guidelines for Child Custody Evaluations in Family Law Proceedings: Implications for the Courts; Helen T. Brantley, Eric Y. Drogin, and Jemour A. Maddux

Uncovering the Secrets of Statistics as Evidence in Business Valuations; Christopher C. Melcher

Judicial Accommodation of Pro Se Parties; Michael Roundy

Editor’s Note; David M. Johnson

President’s Column; Yvette Mansfield Alexander

Canon Conversations; Access, Flexibility, and Practice; Cynthia Gray

Crossword; Vic Fleming

Thoughts from Canada: Strip Searches in Canada and the Constitutional Right to be Free from Unreasonable …

L’Utilité Du Droit Comparé (The Utility Of Comparative Law), Vivian Grosswald Curran

Book Chapters

French Abstract: Cette contribution était le discours d’ouverture à la Conférence des 100 ans de l’Institut Édouard Lambert à l’Université de Lyon. Elle discute de l’utilité du droit comparé dans le monde actuel d’une perspective technique dans le cadre d’une situation aux États-Unis et d’une perspective plus politique dans le cadre d’un arrêt de la CJUE.

English Abstract: This essay was delivered as a keynote address to the conference to celebrate the 100th anniversary of the Institut Édouard Lambert at the University of Lyon. It argues for the usefulness of comparative law in today’s world from a technical angle in …

The Long Shadow Of United States V. Rosenberg: A Biographical Perspective On The Hon. Irving Robert Kaufman, Rodger D. Citron

Scholarly Works

No abstract provided.

Judicial Minimalism In Lower Courts, Thomas P. Schmidt

Faculty Scholarship

Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should judge. This Article considers judicial minimalism as an approach for lower courts, which have become conspicuous and powerful actors on the public law scene. It begins by offering a framework that disentangles the three basic meanings of the term “judicial minimalism”: decisional minimalism, which counsels judges to decide cases on narrow and shallow grounds; prudential minimalism, which …

Judicial Consensus: Why The Supreme Court Should Decide Its Cases Unanimously, David Orentlicher

Scholarly Works

Like Congress and other deliberative bodies, the Supreme Court decides its cases by majority vote. If at least five of the nine Justices come to an agreement, their view prevails. But why is that the case? Majority voting for the Court is not spelled out in the Constitution, a federal statute, or Supreme Court rules.

Nor it is obvious that the Court should decide by a majority vote. When the public votes on a ballot measure, it typically makes sense to follow the majority. The general will of the electorate ought to govern. But judicial decisions are not supposed to …

Political Ideology And Judicial Administration: Evidence From The Covid-19 Pandemic, Kyle Rozema, Adam Chilton, Christopher Anthony Cotropia, David L. Schwartz

Scholarship@WashULaw

We study the effect of political ideology on the administration of the judiciary by investigating how the chief judges of federal district courts set courthouse policies in response to the COVID-19 pandemic. To do so, we use novel data on the geographic boundaries of federal courts and on the contents of pandemic orders. We account for state and local conditions and policies by leveraging district courts in states that have multiple judicial districts and that have courthouses in multiple counties, and we isolate the effect of chief ideology by using simulations that difference out unobserved district-level effects. We find no …

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

Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.

Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – …

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

A Quiet Revolution: How Judicial Discipline Essentially Eliminated Foster Care And Nearly Went Unnoticed., Melissa Carter, Christopher Church, Vivek Sankaran

Articles

This Article argues that juvenile court judges can safely reduce the number of children entering foster care by faithfully and rigorously applying the law. Judges often fail to perform this core functon when a state child welfare agency separates a child from their family. Judges must perform their role as impartial gatekeeper despite the temptation to be "omnipotent moral busybodies".

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James Blumstein

Vanderbilt Law School Faculty Publications

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But …

Statutory Interpretation From The Outside, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional …

“If Rules They Can Be Called”, Amy J. Griffin

Georgetown Law Faculty Publications and Other Works

Who gets to decide what counts as law? The weight of authority in the U.S. legal system is governed almost entirely by unwritten rules—social norms that establish which sources have weight (and how much weight they have). In 2016, Bryan A. Garner and twelve judges published a treatise essentially codifying unwritten rules related to the operation of precedent. That book, The Law of Judicial Precedent, has itself become a source of authority (on legal authority), cited by judges across jurisdictions. In this essay, I question whether the judicial norms governing the operation of precedent are appropriately presented as definitive blackletter …