Law Commons^™

Small Claims Disputes In Nova Scotia And Access To Justice, William H. Charles

Dalhousie Law Journal

The author examines, in some detail, the current operations of the Nova Scotia Small Claims Court to determine whether the court, established forty years ago, is still fulfilling its legislative mandates of providing ready access to speedy, informal and inexpensive justice. After reviewing historical attempts by the legal system to provide an effective mechanism to adjudicate minor disputes, and the various factors that eventually resulted in the creation of the present court in 1980, the author identifies a number of other factors that historically had a negative impact on the operation of the court. Many of these, involving court jurisdiction, …

Popping The Question: What The Questionnaire For Federal Judicial Appointments Reveals About The Pursuit Of Justice, Diversity, And The Commitment To Transparency, Agathon Fric

Dalhousie Law Journal

Since 2017, the Canadian government has published excerpts from questionnaires that prospective judges completed as part of the judicial selection process, subjecting newly appointed superior and federal court judges to a degree of scrutiny that is unprecedented in Canadian history. Using this novel source material, this article explores what a sample of 16 judges’ questionnaires do and do not say about the individuals behind the robes. This review suggests that those appointed to the bench in 2017 generally demonstrate insight into the judicial role in Canada. However, some provide only superficial responses, others parrot back normative values that the government …

Covid, Crisis And Courts, Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg, Anna E. Carpenter

Faculty Scholarship

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of …

Covid-19 And The Law: Elections, Richard Briffault

Faculty Scholarship

With one Supreme Court decision, lower federal and state court decisions, pending litigation, and proposals around the country for major changes in how elections are conducted, COVID-19 has already had and likely will continue to have a significant impact on election law.

The discussion that follows proceeds in two parts. The first addresses the initial consequences of COVID-19 as an electoral emergency. Voters were due to go to the polls in states around the country just as the pandemic was gathering force and governors and mayors were calling on people to stay at home and avoid large gatherings – which, …

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern …

New Prime Inc. V. Oliveira: Putting The Wheels Back On The Faa’S Section 1 Exemption For Transportation Workers, Reed C. Trechter

Oklahoma Law Review

No abstract provided.

Citing Sisters: A Study Of The Oklahoma Appellate Courts, Lee F. Peoples

Oklahoma Law Review

No abstract provided.

Should I Stay Or Should I Go: Student Housing, Remote Instruction, Campus Policies And Covid-19, Patricia E. Salkin, Pamela Ko

Scholarly Works

In March 2020, as the world scrambled to understand and address myriad public health and economic challenges unfolding from the novel coronavirus labeled COVID-19, higher education was forced into a tailspin. This article examines the legal and policy challenges that result from, among other issues, the congregate housing situations existing for on- and off-campus housing at colleges and universities. The legal issues demonstrate federalism at work and include; at the federal level, regulations and guidance from the White House, the Center for Disease Control (CDC) and the U.S. Department of Education; at the State level from gubernatorial executive orders, state …

Disrobing The Judiciary: The Systematic Stripping Of Judicial Power By The Legislature, Chynna Breann Hibbitts

Kentucky Law Journal

No abstract provided.

Comments To Hud Re: Fr-6111-P-02, Hud’S Implementation Of The Fair Housing Act’S Disparate Impact Standard, Lauren E. Willis, Olatunde C.A. Johnson, Mark Niles, Rigel Christine Oliveri

Faculty Scholarship

In key places, HUD’s 2019 proposed "Implementation of the Fair Housing Act’s Disparate Impact Standard" is at odds with express provisions of the Fair Housing Act (FHA) and goes so far as to invent new defenses to liability for housing discrimination and to place the burden of pleading and proving the nonexistence of some of these defenses on plaintiffs. In addition, the proposed rule addresses itself to matters beyond the FHA; specifically, to evidentiary and procedural issues as they may arise in cases brought under the FHA in federal or state courts. HUD provides no reasoned justification for these changes …

Are Litigation Outcome Disparities Inevitable? Courts, Technology, And The Future Of Impartiality., Avital Mentovich, J.J. Prescott, Orna Rabinovich-Einy

Articles

This article explores the ability of technology—specifically, online judicial procedures—to eliminate systematic group-level litigation outcome disparities (i.e., disparities correlated with the visible identity markers of litigants). Our judicial system has long operated under the assumption that it can only be “impartial enough.” After all, judges, like all human beings, harbor implicit biases that are often sizable, unconscious, and triggered automatically, and research indicates that strategies to curb implicit biases in human decision making may be ineffective, especially in the face of the resource and caseload constraints of modern-day adjudication. The recent emergence of online court proceedings, however, offers new hope …

The Handmaid Of Justice: Power And Procedure In The Inferior Courts, Kellen R. Funk

Faculty Scholarship

Summing up the history of procedure from the codification movement of the nineteenth century to the Federal Rules practice of today, Robert Bone observed, “Each generation of procedure reformers, it seems, diagnoses the malady and proposes a cure only to have the succeeding generation’s diagnosis treat the cure as a cause of the malady.” While playfully highlighting the contingencies and unexpected consequences of procedural history, Professor Bone was not advocating a cyclical view of history, in which “cost and delay” continually recur as the bugaboos of procedural reformers who can’t quite figure out how to solve the problem. Instead, Bone …

Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak

Faculty Scholarship

The COVID-19 pandemic has already wrecked greater havoc in poor neighborhoods of color, where pre-existing conditions exacerbate the disease’s spread. Crowded housing and homelessness, less access to health care and insurance, and underlying health conditions are all factors that worsen the chances of remaining healthy.Workers desperate for income continue to work without sufficient protective measures, moving in and out of these neighborhoods, putting themselves and their families at risk. During periods of greater disruption, tensions are heightened and violence more prevalent. Already some experts are warning of an onslaught of child maltreatment cases, citing earlier examples of spikes in foster …

Dispute Resolution In Pandemic Circumstances, George A. Bermann

Faculty Scholarship

The peaceful resolution of disputes is among the most important earmarks of a regime attached to the rule of law. Even in countries in which, for one reason or another, courts do not work especially well, civil peace is of paramount importance. The absence of effective institutions for the administration of justice between and among private parties would spell a high degree of social disorder.

Even in the absence of a crisis such as we are experiencing, justice systems face a number of challenges in this day and age. Does a jurisdiction have a sufficient number of persons qualified to …

Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney

Faculty Scholarship

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the provinces, the …

"Downright Indifference": Examining Unpublished Decisions In The Federal Courts Of Appeals, Merritt E. Mcalister

UF Law Faculty Publications

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.” The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate …

Eliminating The Criminal Debt Exception For Debtors' Prison, Cortney E. Lollar

Law Faculty Scholarly Articles

Although the exact number is unknown due to poor documentation, the data available suggests nearly a quarter of the current incarcerated population is detained due to a failure to pay their legal financial obligations. In federal courts alone, the amount of criminal legal debt owed to the U.S. government in fiscal year 2017 totaled more than $27 billion, and to third parties, more than $96 billion, not including interest. In 2004, approximately sixty-six percent of all prison inmates were assessed a fine or fee as part of their criminal sentence.4 Not surprisingly, legal financial obligations disproportionately impact poor defendants and …

Supreme Court Of The United States, October Term 2020 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Mass Digitization Of Chinese Court Decisions: How To Use Text As Data In The Field Of Chinese Law, Benjamin L. Liebman, Margaret Roberts, Rachel E. Stern, Alice Z. Wang

Faculty Scholarship

Since 2014, Chinese courts have placed tens of millions of court judgments online. We analyze the promise and pitfalls of using this new data source, highlighting takeaways for readers facing similar issues using other collections of legal texts. Drawing on 1,058,986 documents from Henan Province, we identify problems with missing data and call on scholars to treat variation in court disclosure rates as an urgent research question. We also outline strategies for learning from a corpus that is vast and incomplete. Using a topic model of administrative litigation in Henan, we complicate conventional wisdom that administrative lawsuits are an extension …

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Asian Courts And Lgbt Rights, Holning Lau

Holning Lau