Law Commons^™

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Faculty Publications

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …

Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

The forum defendant rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Pointing to the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) does not bar removal of a diversity action if a citizen of the forum state has been joined as a defendant but has not yet been served. The stratagem of removing before service to avoid the prohibition of § 1441(b)(2) …

Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

“Snap removal” is a stratagem used by defendants in civil litigation as an end run around the forum defendant rule. That rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Focusing on the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) allows removal of a diversity action when a citizen of the forum state has been joined as a defendant but has not …

Dean's Desk: Students Find Clerkships In Smaller Counties Rewarding, Austen L. Parrish

Austen Parrish (2014-2022)

The students at the Indiana University Maurer School of Law come to Bloomington from all over the nation. During their summers, the temptation is for them to work in the country’s largest cities, often with the majority working in Indianapolis, Chicago, Washington, D.C., and New York. Many others work in our innovative Stewart Fellows global internship program, where students are placed in countries throughout the world.

Fewer students, however, choose to work in Indiana’s smaller towns, and the hundreds of trial court judges working there often need help. Many trial courts have crowded dockets and limited staffing, particularly those in …

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …

Women In Robes October 16, 2019, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Using Court-Connected Adr To Increase Court Efficiency, Address Party Needs, And Deliver Justice In Massachusetts, Madhawa Palihapitiya, Susan Jeghelian, Kaila Eisenkraft

Massachusetts Office of Public Collaboration Publications

This report presents research and findings from a study of court-connected ADR commissioned by the Executive Office of the Trial Court (EOTC). The study was conducted by the state office of dispute resolution also known as the Massachusetts Office of Public Collaboration at the University of Massachusetts Boston. The office has been serving as a neutral forum and state-level resource for almost 30 years. Its mission is to establish programs and build capacity within public entities for enhanced conflict resolution and intergovernmental and cross-sector collaboration in order to save costs for the state and its citizens and enable effective problem-solving …

Justice Breyer And The Rise Of Globalization: An Analysis Of The Jurisprudence Of Justice Breyer As A Pragmatic Visionary, Timothy Sajal Klee

Upper Level Writing Requirement Research Papers

No abstract provided.

The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

Courts in key climate change cases have abdicated their constitutional responsibility to protect a prejudiced and disenfranchised group (nonvoting minors and future generations) and remedy an insidious pathology in public discourse and the political process: the industry-funded climate disinformation campaign. This Article posits that this abdication results from courts' uneasiness about displacing the prerogatives of democratically elected bodies. This uneasiness is misplaced. Court engagement with climate cases would strengthen democracy in accord with widely accepted justifications for countermajoritarian judicial review. This Article first describes in detail how courts exhibit a frustrating reticence to accept jurisdiction over cases that present questions …

Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone

Georgetown Law Faculty Publications and Other Works

This Article studies statutory interpretation as it is practiced in the federal courts of appeal. Much of the academic commentary in this field focuses on the Supreme Court, which skews the debate and unduly polarizes the field. This Article investigates more broadly by looking at the seventy-two federal appellate cases that cite King v. Burwell in the two years after the Court issued its decision. In deciding that the words “established by the State” encompass a federal program, the Court in King reached a pragmatic and practical result based on statutory scheme and purpose at a fairly high level of …

Statutory Realism: The Jurisprudential Ambivalence Of Interpretive Theory, Abigail R. Moncrieff

Law Faculty Articles and Essays

In the renaissance of statutory interpretation theory, a division has emerged between "new purposivists," who argue that statutes should be interpreted dynamically, and "new textualists," who argue that statutes should be interpreted according to their ordinary semantic meanings. Both camps, however, rest their theories on jurisprudentially ambivalent commitments. Purposivists are jurisprudential realists when they make arguments about statutory meaning, but they are jurisprudential formalists in their views of the judicial power to engage in dynamic interpretation. Textualists are the inverse; they are formalistic in their understandings of statutory meaning but realistic in their arguments about judicial power. The relative triumph …

Notoriously Ruthless: The Idolization Of Justice Ruth Bader Ginsburg, Lucille Moran

Political Science Honors Projects

It is now a fixture of mainstream commentary in the United States that Supreme Court Justice Ruth Bader Ginsburg has become a popular idol on the political left. Yet, while Justice Ginsburg’s image and story has reached an unprecedented level of valorization and even commercialization, scholars have yet to give sustained attention to the phenomenon and to contextualize it: why has this idolization emerged within this context, and what is its impact? This paper situates her portrayal in the cultural imagination as the product of two political forces, namely partisanship and identity politics. Considering parallel scholarly discourses of reputation, celebrity, …

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

In Re: Discipline Of James Colin, 135 Nev. Adv. Op. 43 (Sep. 19, 2019), Jose Tafoya

Nevada Supreme Court Summaries

The court found James Colin made statements he knew were false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge. Colin also engaged in conduct prejudicial to the administration of justice. The court suspended him for six months and one day.

Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose

Faculty Scholarship

How do we evaluate a Supreme Court that writes more than it decides? Despite having the lowest decisional output in the modern era, the Roberts Court is the most verbose Supreme Court in history. The current Justices are more likely than past Justices to have their individual say in cases, writing more concurring and dissenting opinions than prior Courts. These opinions are longer, often strongly worded, and rarely add clarity to the underlying decision. The Roberts Court has shifted from being a decisional body to becoming an institution that comments on more cases than it decides.

This article critiques the …

State Constitutionalism In The Age Of Party Polarization, Neal Devins

Faculty Publications

No abstract provided.

Judging During Crises: Can Judges Protect The Facts?, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

With the advent of instantaneous information and the trend toward shrinking adherence to the truth, the conversation surrounding the ability of judges to conduct outside research into the matters before them is gaining urgency. In a “post-truth” world, the role that the judiciary plays in our democracy must shift from trier of fact to guardian of factual integrity. And to do this, the professional ethics rules assigned to the judiciary may need re-evaluation.

This Essay argues that the judiciary's ambivalence to its role as fact finder must be overcome, and where appropriate, judges may be empowered to seek out supplemental …

Why Women: Judging Transnational Courts And Tribunals, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Elisabeth Haub School of Law Faculty Publications

Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more …

Law Library Blog (July 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Judging Judges Fifty Years After – Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In Chicago, Illinois--and in courtrooms across the United States--judicial misconduct has affected trial outcomes as long as there have been trials. While Judge Julius Hoffman's conduct in the “Chicago Eight” trial is an egregious example of judicial behavior toward criminal defendants, this piece's examination of at least ten different categories of misconduct in dozens of cases makes the argument that misbehavior by judges is less of an exception to the rule of impartiality than the thinking public might know. In considering these brazen examples, practitioners and academics alike can evaluate how to best confront the extent to which conduct like …

Rediscovering The Issue Class In Mass Tort Mdls, Myriam E. Gilles, Gary Friedman

Articles

For the past twenty-plus years, MDL transferee judges have essentially regarded the class device as unavailable as they struggle to organize masses of tort actions sent their way by the JPML. Even the badges and incidents of class practice, in the form of common-fund-based approaches to attorney compensation and lead-counsel structures for case organization, have come under attack from commentators who insist that mass-tort MDLs should not be treated as “quasi-class actions,” and that Rule 23 does not present a “grab bag” from which MDL judges may pick and choose the most convenient implements. Leading lights of the complex litigation …

Supreme Court Institute Annual Report, 2018-2019, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2018 – corresponding to the 2018-2019 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 99% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students. The varied affiliations of advocates mooted this Term reflect SCI’s firm commitment to provide assistance to advocates without regard to the party represented or the position advanced.

A list of all SCI moot courts held in OT 2018 – …

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Faculty Publications

No abstract provided.

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

All Faculty Scholarship

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …

Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter

Utah Law Faculty Scholarship

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the …

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support …

Dignity And Civility, Reconsidered, Leah Litman

Articles

People often talk about the Chief Justice, Justice Kagan, and Justice Breyer as the institutionalists on the modern Supreme Court. And that’s true, they are. Those Justices care about the Court as an institution and the Court’s reputation. They do not want people to look at the Court as a set of politicians in robes; and they do not want people to see judges as having ideological or partisan agendas. That is how they think of themselves, and they are willing to make compromises to maintain that image of the Court, and to set aside their personal beliefs in order …

Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 10, 25th Anniversary Issue) (May 2019), Roger Williams University School Of Law

RWU Law

No abstract provided.

Law Library Blog (May 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …