Law Commons^™

The Common Law As Statutory Backdrop, Anita S. Krishnakumar

Georgetown Law Faculty Publications and Other Works

Amidst the whirl of commentary about how the U.S. Supreme Court has become increasingly textualist and what precise shape modern textualism should take, the Court’s continued reliance on one decidedly atextual interpretive tool has gone largely unnoticed — the common law. Indeed, the common law has played an underappreciated, often dispositive, gap-filling role in statutory interpretation for decades, even as the textualist revolution has sidelined other non-text-focused interpretive tools. But despite the persistent role that the common law has played in statutory interpretation cases, the use of common law rules and definitions as an interpretive resource is surprisingly understudied and …

Justice For All: Demanding Accessibility For Underrepresented Communities In The Law: A Roger Williams University Law Review, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Social Media Harms And The Common Law, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

This article finds fault with the judiciaries' failure to create a set of common law norms for social media wrongs. In cases concerning social media harms, the Supreme Court and lower courts have consistently adhered to traditional pre-social media principles, failing to use the power of the common law to create a kind of Internet Justice.

Part I of this article reviews social media history and explores how judicial decisions created a fertile bed for social media harm to blossom. Part II illustrates social media harms across several doctrinal disciplines and highlights judicial reluctance to embrace the realities of social …

How And Why Do Judges Cite Academics? Evidence From The Singapore High Court, Jerrold Soh, Yihan Goh

Research Collection Yong Pung How School Of Law

Legal academics were once thought to be parasitic on the work of judges, so much so that citing academic work was said to weaken a judgment’s authority. Recent times have however seen prominent academics appointed to the highest courts, and judicial engagement with academic materials appears to have increased. In this light, this article empirically studies academic citation practices in the Singapore High Court. Using a dataset of 2,772 High Court judgments, we show that citation counts have indeed increased over time, even in this first-instance court. This increase was distributed across most legal areas, and was not limited to, …

Judges, Judging And Otherwise: Do We Ask Too Much Of State Court Judges - Or Not Enough?, Michael C. Pollack

Articles

Ask the average person to imagine what a judge does, and the answer will most likely be something right out of a courtroom from Law & Order — or Legally Blonde, Just Mercy, My Cousin Vinny, Kramer vs. Kramer, or any of the myriad law-themed movies and television shows. A judge is faced with a dispute brought by some parties and their lawyers and is charged with resolving it, whether it be a breach of contract, a tort action, a competing claim over property, a disagreement about the meaning of a statute, some accusation that someone …

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 outlook is …

The Character Of Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as legitimate grounds for excusal from jury service. This follows from an understanding of juror bias that assumes that people with negative experiences with legal actors—police and prosecutors, for example—will be less likely to trust and more likely to discount the contributions of those actors within the context of the jury …

Law School News: Welcome, Professor Bernard Freamon 04-20-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Judicial Impartiality In The Judicial Council Act 2019: Challenges And Opportunities, Brian M. Barry Dr

Articles

The Judicial Council is tasked with promoting and maintaining high standards of judicial conduct. The Judicial Council Act 2019 identifies judicial impartiality as a principle of judicial conduct that Irish judges are required to uphold and exemplify. Despite its ubiquity, judicial impartiality is perhaps under-explained and under-examined.

This article considers the nature and scope of judicial impartiality in contemporary Irish judging. It argues that the Judicial Council ought to take a proactive, multi-faceted approach to promote and maintain judicial impartiality, to address contemporary challenges that the Irish judiciary face including increasingly sophisticated empirical research into judicial performance, the proliferation of …

Achieving Equality Without A Constitution: Lessons From Israel For Queer Family Law, Laura T. Kessler

Utah Law Faculty Scholarship

How might the United States reconcile conflicts between equality and religious freedom in the realm of family law? To answer this question, this chapter considers recent developments in family (personal status) law in Israel. While Israel may at first blush appear to be the last place that feminists and queer theorists should look for solutions to modern conflicts between democratic and religious values, this chapter argues that the Israeli experience has much to offer critical family scholars working to develop pluralistic legal approaches to family regulation. Israel is a country with a diverse population and unique political and legal context …

Japan’S Transnational War Reparations Litigation: An Empirical Analysis, Timothy Webster

Faculty Scholarship

Negotiating war reparations is traditionally the province of the political branches, yet in recent decades, domestic courts have presided over hundreds of compensation lawsuits stemming from World War II. In the West, governments responded to these lawsuits with elaborate compensation mechanisms. In East Asia, by contrast, civil litigation continues apace. This Article analyzes eighty-three lawsuits filed in Japan, the epicenter of Asia’s World War II reparations movement. While many scholars criticize the passivity of Japanese courts on war-related issues, this Article detects a meaningful role for Japanese courts in the reparations process: awarding compensation, verifying facts, and allocating legal liability. …

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

Scholarly Works

No abstract provided.

Changemakers Master Of Studies In Law: Adding Depth: Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Overreach Of Limits On 'Legal Advice', Lauren Sudeall

Vanderbilt Law School Faculty Publications

Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice.

Evolving Standards Of Irrelevancy?, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Optimizing Whistleblowing, Usha Rodrigues

Scholarly Works

Whistleblowers have exposed misconduct in settings ranging from public health to national security. Whistleblowing thus consistently plays a vital role in safeguarding society. But how much whistleblowing is optimal? And how many meritless claims should we tolerate to reach that optimum? Surprisingly, legislators and scholars have overlooked these essential questions, a neglect that has resulted in undertheorized, stab-in-the-dark whistleblower regimes, risking both overdeterrence and underdeterrence.

This Article confronts the question of optimal whistleblowing in the context of financial fraud. Design choices, which play out along two axes, have profound effects on the successful implementation of whistleblowing policy. One axis varies …

Judicial Activism In Transnational Business And Human Rights Litigation, Hassan M. Ahmad

All Faculty Publications

This article explores a more expansive adjudicative role for domestic judiciaries in the U.S., U.K., and Canada in private law disputes that concern personal and environmental harm by multinational corporations that operate in the Global South. This expansive role may confront—although not necessarily upend—existing understandings around the separation of powers in common law jurisdictions. I canvass existing literature on judicial activism. Then, I detail legality gaps in the selected common law home states, which can be broken down into four categories: i) failed legislation; ii) deficient legislation; iii) judicial restraint; and iv) judicial deference.

I suggest three ways to actualize …

The Institutions Of Family Law, Clare Huntington

Faculty Scholarship

Family law scholarship is thriving, with scholars using varied methodologies to analyze intimate partner violence, cohabitation, child maltreatment, juvenile misconduct, and child custody, to name but a few areas of study. Despite the richness of this discourse, however, most family law scholars ignore a key tool deployed in virtually every other legal-academic domain: institutional analysis.

This methodology, which plays a foundational role in legal scholarship, focuses on four basic questions. Scholars often begin empirically, identifying the specific legal, social, and economic institutions that shape an area of legal regulation. Beyond descriptive accounts, scholars analyze how authority is and should be …

Countering Gerrymandered Courts, Jed H. Shugerman

Faculty Scholarship

The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping …

Free-Ing Criminal Justice, I. Bennett Capers

Faculty Scholarship

No abstract provided.

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.

This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which …

Countering The Big Lie: The Role Of The Courts In The Post Truth World, Edward D. Cavanagh

Faculty Publications

(Excerpt)

This Essay analyzes the role of the courts in handling Trump’s election lie. It argues that the courts were certainly correct in giving short shrift to Trump’s lawsuits, but further that the courts should have done more than simply dismiss Trump’s claims. Had the courts aggressively utilized existing tools to identify and punish prosecution of baseless claims, including Rule 11 of the Federal Rules of Civil Procedure and the courts’ inherent powers to control proceedings before them, the Trump election lie might well have been put to rest immediately before it could take root among die-hard Trump supporters. This …

Critical Review Of The Use Of The Rorschach In European Courts, Igor Areh, Fanny Verkampt, Alfred Allan

Research outputs 2014 to 2021

In relation to the admissibility of evidence obtained using projective personality tests arose in F v. Bevándorlási és Állampolgársági Hivatam (2018). The Court of Justice of the European Union has held that an expert’s report can only be accepted if it is based on the international scientific community’s standards, but has refrained from stipulating what these standards are. It appears timely for European psychologists to decide what standards should be applied to determine whether or not a test is appropriate for psycholegal use. We propose standards and then apply them to the Rorschach because it was used in this case …

Against Bankruptcy Exceptionalism, Jonathan M. Seymour

Faculty Scholarship

Bankruptcy courts conceive of their mission differently than other courts do. For the Supreme Court, bankruptcy cases are ordinary statutory cases to be resolved “clearly and predictably using well established principles of statutory interpretation.” Many bankruptcy judges, though, believe that bankruptcy courts serve a distinctive mission for which ordinary adjudicative methods do not suffice. Often, that mission is characterized using the language of equity. Judges and commentators alike have observed that among the most spoken words in the bankruptcy courts are: “the bankruptcy court is a court of equity.” Others have contended that bankruptcy necessitates “creativity and flexibility,” pursuant to …

Racial Capitalism In The Civil Courts, Tonya L. Brito, Kathryn A. Sabbeth, Jessica Steinberg, Lauren Sudeall

GW Law Faculty Publications & Other Works

This Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.

The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state …