Courts Commons^™

Jury Deliberation, Giuliana Pietrantoni

The Review: A Journal of Undergraduate Student Research

Juries are tasked with the duty of deliberating and applying the law to the case at hand. But it is unclear whether juries deliberate or deliberate well enough. Factors which may affect jury deliberation are the motivation of jurors, characteristics of jurors, emotions during and after trial, bargaining, charges, and dissenters. This paper argues that jurors do engage in rigorous dialogue which eventually results in compromises, although whether this creates an unjust verdict is unclear.

Newsroom: Goldstein & Horwitz On 38 Studios Records 04-13-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Breaking Bad Briefs, Heidi K. Brown

Articles & Chapters

This article focuses on the practical effects of bad briefing on our legal process and suggests a holistic remedy: a system-wide commitment to striving to instill in law students and lawyers a respect for legal writing as, not only a fundamental competency of our chosen profession, but a talent that requires initial training, focused study, repeated practice, and conscious evolution throughout the arc of one’s legal education and career. Effective brief-writing is not as simple as a quick cut-and-paste job, a template download, or a stream-of-consciousness exercise, even for lawyers who repeatedly practice one type of case. Part I of …

It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring

Fordham Law Review

This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.

It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring

Fordham Law Review

This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.

Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin

Law & Economics Working Papers

A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy …

Court Transparency And The First Amendment, David S. Ardia

Cardozo Law Review

"Publicity is the very soul of justice," legal philosopher Jeremy Bentham once warned.1 Regrettably, lady justice is at risk of losing her soul. In courts across the country, secrecy is increasingly the norm. Indeed, the extent of secrecy in American courts is astonishing, especially given the assumption by many that the First Amendment guarantees a right of public access to the courts. In reality, the United States Supreme Court has explicitly held only that there is a First Amendment right of public access to criminal trials and pre-trial proceedings. The Court has never addressed the question of whether there is …

Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs

Faculty Scholarship

[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is …

Private Or Public Right? Who Should Adjudicate Patentability Disputes And Is The Current Scheme Really Constitutional?, Jasmyne M. Baynard

Marquette Intellectual Property Law Review

“The patent bargain is the foundation upon which the patent system is built: in exchange for protections for an invention, the inventor agrees to make public their inventions so that others may build upon it.” The patent bargain creates a presumption of protection for the inventors, yet categorizing the patent a public right or a private right has diminished expectations for inventors and confusion for the masses. On October 11, 2016, the Supreme Court denied two petitions for writ of certiorari that challenged the constitutionality of Patent Trial and Review Board proceedings on the basis of the patent owner’s Seventh …

Trial And Error: Lawyers And Nonlawyer Advocates, Anna Carpenter, Alyx Mark, Colleen Shanahan

Faculty Articles

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …

Active Judging And Access To Justice, Anna Carpenter

Faculty Articles

"Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Spoliating The Adverse Inference Instruction: The Impact Of The 2015 Amendment To Federal Rule Of Civil Procedure 37(E), Alexandra M. Reynolds

Georgia Law Review

The discovery process relies heavily on the information
that we store on our electronic devices. The ease with
which we tap into the many capabilities of technology,
however, exposes litigants to a significant risk-spoliation
of evidence. Evidence may be spoliated accidentally or
intentionally, but when spoliation does occur, the party
seeking that evidence often seeks a remedy from the court.
The adverse inference instruction has functioned as one of
those remedies. Courts split on what level of culpability is
required to issue an adverse inference instruction. The
Rule 37(e) amendments attempt to address rising costs of
electronic discovery and resolve …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

A Critique Of The Uniquely Adversarial Nature Of The U.S. Legal, Economic And Political System And Its Implications For Reinforcing Existing Power Hierarchies, Areto A. Imoukuede, Jim Wilets

Journal Publications

This article argues that the uniquely adversarial nature of the United States litigation system, rooted in the medieval English system of "trial by battle," has replicated itself in almost all aspects of American society, distinguishing the United States from even its common law counterparts that shared the genesis of their legal systems in English "trial by battle." This "trial by battle" is often characterized in the context of speech by terms such as the 'marketplace of ideas," or in the context of economics by terms such as "the law of the jungle.," Even resolution of basic Constitutional concepts are subject …

Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux

Publications

This essay is a response to Professor Samuel Bray’s article proposing a blanket prohibition against injunctions that enjoin a defendant’s conduct with respect to nonparties. He argues that national injunctions are illegitimate under Article III and traditional equity and result in a number of difficulties.

This Response argues, from a normative lens, that Bray’s proposed ban on national injunctions should be rejected. Such a bright-line rule against national injunctions is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society and our democracy. Although national injunctions may be imperfect and crude forms of …

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 …

Texas: Impact Of The Expedited Action Rules On The Texas County Courts At Law, Paula Hannaford-Agor, Scott Graves

Faculty Publications

Amendments to the Texas Rules of Civil Procedure were enacted by the Texas Supreme Court in response to legislative policy initiatives intended to reduce expense and delay of civil litigation while maintaining fairness to litigants. The 2013 amendments provided specific procedural rules for dismissals for baseless actions, and an expedited process and limitation on discovery for cases in which claimants seek monetary relief of $100,000 or less (expedited actions).

The National Center for State Courts (NCSC) undertook this evaluation in cooperation with the Texas Office of Court Administration (OCA) to assess the impact of the expedited Actions Rules. The intent …

Neutralizing The Stratagem Of "Snap Removal": A Proposed Amendment To The Judicial Code, Joan E. Steinman, Arthur Hellman, Lonny Hoffman, Thomas Rowe, Georgene Vairo

All Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule. The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

Neither Strict Nor Nuanced: The Balanced Standard For False Claims Act Pleading In The Eleventh Circuit, C. Caitlin Giles

University of Miami Law Review

False Claims Act litigation is more hotly contested than ever before. One such controversial issue plaguing federal courts is the proper application of Federal Rule of Civil Procedure 9(b) to actions arising under the False Claims Act. The explosion of litigation under the FCA caused a circuit split to emerge on the correct standard to use when applying Rule 9(b)’s heightened pleading requirement for more particularity. Specifically, courts are split on the level of specificity required to prove that a false claim was submitted to the government. Some apply a “strict” interpretation and require pleadings to include representative samples of …

Changing The Game: The Effects Of The 2012 Revision Of The Icc Arbitration Rules On The Icc Model Arbitration Clause For Trust Disputes, Colin Connor

Georgia Journal of International & Comparative Law

No abstract provided.

“Please Stop Telling Her To Leave.” Where Is The Money: Reclaiming Economic Power To Address Domestic Violence, Margo Lindauer

Seattle University Law Review

In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support …

If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson

Seattle University Law Review

The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like to …

Newsroom: Kuckes On Discovery Ruling 7-7-2016, Sheri Qualters, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

When Loss Of Legal Custody Is Like An Indeterminate Prison Sentence: Ohio's Elimination Of Indigent Parents' Right To Court Appointed Counsel In Civil Custody Suits, Renee Brunett

University of Cincinnati Law Review

No abstract provided.

Contracts - Jurisdiction - Absent A Strong Showing Of Unreasonableness Or Undue Influence, Parties’ Contractual Selection Of Forum In International Transactions Will Be Valid And Enforceable, Shelley Himel

Georgia Journal of International & Comparative Law

No abstract provided.

English Matrimonial Cruelty Law In Nigeria: Dead Or Alive?, D. A. Ijalaye

Georgia Journal of International & Comparative Law

No abstract provided.

Judicial Recusation In The Federal Republic Of Germany, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.

The Voting Rights Act And The "New And Improved" Intent Test: Old Wine In New Bottles, Randolph M. Scott-Mclaughlin

Touro Law Review

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams

Touro Law Review

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Fred Brewington

Touro Law Review

No abstract provided.