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Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French Jan 2022

Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French

Journal Articles

Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would …


Alleged Violations Of The 1955 Treaty Of Amity, Economic Relations, And Consular Rights (Iran V. U.S.) (Judgment On Preliminary Objections) (I.C.J.), Diane A. Desierto Jan 2022

Alleged Violations Of The 1955 Treaty Of Amity, Economic Relations, And Consular Rights (Iran V. U.S.) (Judgment On Preliminary Objections) (I.C.J.), Diane A. Desierto

Journal Articles

On February 3, 2021, the International Court of Justice delivered its judgment on preliminary objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America). The judgment rejected all of the United States’ preliminary objections, declared the admissibility of Iran's Application, and held that the Court has jurisdiction “on the basis of Article XXI, paragraph 2 of the Treaty of Amity, Economic Relations, and Consular Rights of 1955.”


The High Cost Of Eviction: Struggling To Contain A Growing Social Problem, Judith Fox Jan 2021

The High Cost Of Eviction: Struggling To Contain A Growing Social Problem, Judith Fox

Journal Articles

Matthew Desmond’s Pulitzer Prize winning book, focused public attention on the issue of eviction. As a result, scholars have begun to investigate and challenge some of the assumptions made in the book. Primarily, is eviction the cause of poverty or one of its consequences? This article explores several options in an attempt to explain the high number of evictions in America. These include, among others, the lack of affordable housing, failed governmental policies, the rise of institutional landlords and the role of courts. The article highlights some interventions that have begun to show progress in easing the burden of eviction. …


The Judicial Reforms Of 1937, Barry Cushman Jan 2020

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …


Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford Jan 2020

Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford

Journal Articles

This essay is the second in a two-part series focused on our nation’s invisible juvenile justice system—one that operates under the legal radar as part of the U.S. Constitution’s Article III federal district court system.1 The first publication, Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers, 2 examined the little-known practice of prosecuting children as adults in federal courts. This paper will look at the related phenomenon of juvenile delinquency matters that are filed and pursued in our nation’s federal court system.3 To date, most scholarship evaluating youth prosecution has focused on our country’s …


In The Room Where It Happens: Including The "Public's Will" In Judicial Review Of Agency Action, Twinette L. Johnson Jan 2019

In The Room Where It Happens: Including The "Public's Will" In Judicial Review Of Agency Action, Twinette L. Johnson

Journal Articles

In the context of higher education reform, the people need to be in the important rooms where the decisions are being made. One such room is the courtroom. This essay elaborates on this premise, previously written about in an article I wrote entitled, 50,000 Voices Can’t Be Wrong, But Courts Might Be: How Chevron’s Existence Contributes to Retrenching the Higher Education Act. That article was the second in a series of three articles on the retrenchment of the Higher Education Act of 1965 (“HEA”) using the William Eskridge and John Ferejohn statutory entrenchment model.


Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn Jan 2019

Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn

Journal Articles

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by paroleboards as executive branch agents, rather …


Fallen Woman Further (Re)Framed: Jewels And Travels, Tragedies And Secrets, Judge Hortense Norris, Mae Quinn Jan 2019

Fallen Woman Further (Re)Framed: Jewels And Travels, Tragedies And Secrets, Judge Hortense Norris, Mae Quinn

Journal Articles

No abstract provided.


Fallen Woman (Re) Frame: Judge Jean Hortense Norris, New York City - 1912-1955, Mae C. Quinn Jan 2019

Fallen Woman (Re) Frame: Judge Jean Hortense Norris, New York City - 1912-1955, Mae C. Quinn

Journal Articles

No abstract provided.


E-Notice, Christine P. Bartholomew Nov 2018

E-Notice, Christine P. Bartholomew

Journal Articles

Social media platforms and smartphone manufacturers face class action lawsuits, but how open are federal courts to using these very technologies to notify members of a class action? This Article details the results from an empirical analysis of over 2700 federal class notice decisions. It finds class notice changing, but very slowly. Supreme Court precedent demands a dynamic standard for class action notice. However, fears of change, technology, and imprecision keep courts tethered to twentieth-century modes of communication. This judicial fear encumbers E-Notice—at a cost to the utility of class action procedures.


Derecho Constitucional [2016-2017 Puerto Rico Supreme Court Term Analysis: Constitutional Law], Jorge M. Farinacci Fernós Jan 2018

Derecho Constitucional [2016-2017 Puerto Rico Supreme Court Term Analysis: Constitutional Law], Jorge M. Farinacci Fernós

Journal Articles

El profesor Jorge Farinacci Fernós analiza las decisiones del Tribunal Supremo de Puerto Rico en materia de Derecho Constitucional emitidas entre octubre de 2016 y julio de 2017. En particular, el artículo discute (1) el límite a los donativos a candidatos en las primarias y la elección general; (2) el voto adelantado de las personas encamadas y los requisitos aplicables; (3) la aplicación de la veda electoral a los procesos plebiscitarios; (4) la representación de las minorías en la Asamblea Legislativa; (5) la sustitución de un alcalde electo que renuncia antes de tomar posesión; (6) la doctrina de campo ocupado …


Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark Jan 2018

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …


Before Interpretation, Anya Bernstein Apr 2017

Before Interpretation, Anya Bernstein

Journal Articles

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to …


Vote Fluidity On The Hughes Court: The Critical Terms, 1934-1936, Barry Cushman Jan 2017

Vote Fluidity On The Hughes Court: The Critical Terms, 1934-1936, Barry Cushman

Journal Articles

This article makes four principal claims. The first is that the justices of the Hughes Court often changed their positions in major cases between the time that they cast their votes in conference and their final votes on the merits. The second is that the Court achieved comparatively high rates of unanimity even during its most turbulent Terms because justices who had served on earlier Courts had internalized a norm counseling those who lost at the conference vote to acquiesce in the judgment of the majority. The third is that the justices who most frequently did so in this period’s …


Inside The 'Constitutional Revolution' Of 1937, Barry Cushman Jan 2017

Inside The 'Constitutional Revolution' Of 1937, Barry Cushman

Journal Articles

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number …


Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray Jan 2017

Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray

Journal Articles

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts.

This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor …


Derecho Constitucional [2015-2016 Puerto Rico Supreme Court Term Analysis: Constitutional Law], Jorge M. Farinacci Fernós Jan 2017

Derecho Constitucional [2015-2016 Puerto Rico Supreme Court Term Analysis: Constitutional Law], Jorge M. Farinacci Fernós

Journal Articles

Este Término fue muy variado en temas constitucionales. (1) Por medio de un caso de derecho a la lactancia en el empleo, el derecho a la intimidad adquirió “forma operativa” y se concretizo como arma de litigio constitucional. (2) Se aclaró que el poder de nombramiento de la figura del o de la Juez(a) Presidente(a) del Tribunal Supremo de Puerto Rico recae en el Gobernador. (3) Ocurrió un cambio importante en la doctrina de la legitimación activa: la ausencia de legitimación activa no tiene como consecuencia inmediata la desestimación de la demanda por falta de jurisdicción. (4) En relación a …


The English Fire Courts And The American Right To Civil Jury Trial, Jay Tidmarsh Oct 2016

The English Fire Courts And The American Right To Civil Jury Trial, Jay Tidmarsh

Journal Articles

This Article uncovers the history of a long-forgotten English court system, the “fire courts,” which Parliament established to resolve dispute between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts’ remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment’s right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation.

Parliament enacted fire-courts legislation on eight occasions …


The Call And The Response: The Call, The 1991 Open Letter From Federal Judge A. Leon Higginbotham, Jr., And The 25 Years Of Response From Justice Clarence Thomas, Angela Mae Kupenda Jan 2016

The Call And The Response: The Call, The 1991 Open Letter From Federal Judge A. Leon Higginbotham, Jr., And The 25 Years Of Response From Justice Clarence Thomas, Angela Mae Kupenda

Journal Articles

In 1991, Clarence Thomas was confirmed as the first Black radical conservative Justice, in spite of opposition including credible allegations of sexual harassment lodged against him. His unprecedented confirmation evoked unprecedented reactions, including written ones. One such written action is the basis for this article. Our nation is now fast approaching the anniversary, not only of Thomas’ 25 ceremonial years on the Court, but also of almost 25 years since an unprecedented, published, pointed, open, publicly and widely circulated correspondence was sent to the newly confirmed Justice Thomas by another Black judge. Esteemed Federal Judge A. Leon Higginbotham, Jr., penned …


In Loco Juvenile Justice: Minors In Munis, Cash From Kids, And Adolescent Pro Se Advocacy - Ferguson And Beyond, Mae Quinn Jan 2016

In Loco Juvenile Justice: Minors In Munis, Cash From Kids, And Adolescent Pro Se Advocacy - Ferguson And Beyond, Mae Quinn

Journal Articles

No abstract provided.


Chaining Kids To The Ever Turning Wheel: Other Contemporary Costs Of Juvenile Court Involvement, Candace Johnson, Mae Quinn Jan 2016

Chaining Kids To The Ever Turning Wheel: Other Contemporary Costs Of Juvenile Court Involvement, Candace Johnson, Mae Quinn

Journal Articles

In this essay, Candace Johnson and Mae Quinn respond to Tamar Birckhead’s important article The New Peonage, based, in part, on their work and experience representing youth in St. Louis, Missouri. They concur with Professor Birckhead’s conclusions about the unfortunate state of affairs in 21st century America— that we use fines, fees, and other prosecution practices to continue to unjustly punish poverty and oppressively regulate racial minorities. Such contemporary processes are far too reminiscent of historic convict leasing and Jim Crow era efforts intended to perpetuate second-class citizenship for persons of color. Johnson and Quinn add to Professor Birckhead’s critique …


Inside The Taft Court: Lessons From The Docket Books, Barry Cushman Jan 2016

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …


Resurrecting Trial By Statistics, Jay Tidmarsh Apr 2015

Resurrecting Trial By Statistics, Jay Tidmarsh

Journal Articles

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …


Anna Moscowitz Kross And The Home Term Part: A Second Look At The Nation's First Criminal Domestic Violence Court, Mae C. Quinn Jan 2015

Anna Moscowitz Kross And The Home Term Part: A Second Look At The Nation's First Criminal Domestic Violence Court, Mae C. Quinn

Journal Articles

No abstract provided.


Cualquier Persona: La Facultad Plenaria De La Asamblea Legislativa Para Otorgar Legitimación Activa Por La Vía Estatutaria [Any Person: The Legislative Assembly’S Plenary Power To Grant Statutory Standing], Jorge M. Farinacci Fernós Jan 2015

Cualquier Persona: La Facultad Plenaria De La Asamblea Legislativa Para Otorgar Legitimación Activa Por La Vía Estatutaria [Any Person: The Legislative Assembly’S Plenary Power To Grant Statutory Standing], Jorge M. Farinacci Fernós

Journal Articles

No abstract provided.


(Re-)Grasping The Opportunity Interest: Lehr V. Robertson And The Terminated Parent, Lashanda Taylor Adams Jan 2015

(Re-)Grasping The Opportunity Interest: Lehr V. Robertson And The Terminated Parent, Lashanda Taylor Adams

Journal Articles

In 1997, an Ohio court terminated Peggy Fugate’s parental rights to her sixyear-old daughter, Selina. At the time, Ms. Fugate, an incarcerated drug abuser, did not fight the order, believing her daughter would be adopted into a clean, stable home.1 However, Selina was never adopted. For the next seven years, Selina had trouble with the police and ran away from her foster home numerous times. While Selina’s life was going downhill in many respects, her mother was rehabilitating. She entered recovery, married, obtained full-time employment and was living in stable housing with enough room for her daughter. Recognizing the strides …


Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith Nov 2014

Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith

Journal Articles

In Yates v. United States, the Supreme Court will decide whether tossing undersized fish overboard can be prosecuted under the Sarbanes–Oxley Act of 2002, a law aimed at preventing massive frauds of the sort that led to the collapse of Enron and sent shock waves throughout the economy. Although the legal issue is narrow, the case has far-reaching significance. The Yates prosecution is a case study in the dangers posed by “overcriminalization”: the existence of multitudinous, often overlapping criminal laws that are so poorly defined that they sweep within their ambit conduct far afield from their intended target.

The …


The Scope Of Precedent, Randy J. Kozel Nov 2014

The Scope Of Precedent, Randy J. Kozel

Journal Articles

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial …


Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua Jan 2014

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially …


The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman Jan 2014

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Journal Articles

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that doctrinal development. Part …