Courts Commons^™

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

All Faculty Scholarship

Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …

What Is The Settlement Rate And Why Should We Care?, Theodore Eisenberg, Charlotte Lanvers

Cornell Law Faculty Publications

After establishing the importance of knowledge of settlement rates, this article first shows that different research questions can yield different settlement rates. Using data gathered from about 3,300 federal cases in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), differing measures of settlement emerge depending on whether one is interested in (1) settlement as a proxy for plaintiffs’ litigation success, or (2) settlement as a measure of litigated disputes resolved without final adjudication. Using settlement as a proxy for plaintiff success, we estimate the aggregate settlement rate across case categories in the two districts to …

Causation Or Correlation? The Impact Of Lulac V. Clements On Section 2 Lawsuits In The Fifth Circuit, Elizabeth M. Ryan

Michigan Law Review

Under section 2 of the Voting Rights Act, illegal vote dilution exists when an electoral standard, practice, or procedure results in a denial or abridgement of the right to vote on account of race or color Plaintiffs demonstrate vote dilution by introducing evidence regarding a variety of objective factors, including whether voting in the jurisdiction in question is polarized along racial lines. In 1993, the Fifth Circuit adopted a new standard for section 2 plaintiffs trying to prove racially polarized voting. The Fifth Circuit held that demonstrating a mere correlation between race and vote was insufficient to establish racially polarized …

When The Music Stops, Why Not Require Certain Title Vii Plaintiffs To Find A Chair On Which To Rest Their Complaint?, 42 J. Marshall L. Rev. 505 (2009), Catherine R. Caifano

UIC Law Review

No abstract provided.

Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price

Michigan Journal of Race and Law

Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …

United States V. Leveto, Jennifer Steward

NYLS Law Review

No abstract provided.

Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what …

The Saucier Qualified Immunity Experiment: An Empirical Analysis, Nancy Leong

Faculty Publications

No abstract provided.

Democratizing The Courts: How An Amicus Brief Helped Organize The Asian American Community To Support Marriage Equality, Robert S. Chang, Karin Wang

Faculty Articles

In this essay, the authors offer an alternative rationale for amicus practice. This rationale emerges from thier experience working on a brief in support of marriage equality that sixty-three Asian American organizations endorsed. They found that an amicus brief can be an effective tool to engage and educate community-based organizations and their constituencies, thereby helping to advance social justice issues. Their story also illustrates how amicus practice can be used to organize communities around a legal issue and to democratize the courts. In this way, even if the effect of amicus briefs on litigation outcomes may be marginal, the process …

Why The United States Supreme Court Got Some [But Not A Lot] Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus

Faculty Publications

No abstract provided.

Only Skin Deep?: The Cost Of Partisan Politics On Minority Diversity Of The Federal Bench, Sylvia R. Lazos Vargas

Indiana Law Journal

Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses. Indiana University School of Law-Bloomington, March 2007.

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Faculty Publications

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous "no set of facts" formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts choosing to continue to apply a …

The Americans With Disabilities Act And The Ada Amendments Act Of 2008: Hearing Before The S. Comm. On Health, Education, Labor & Pensions, 110th Cong., July 15, 2008 (Statement Of Chai R. Feldblum, Geo. U. L. Center), Chai R. Feldblum

Testimony Before Congress

No abstract provided.

Review Of Crafting The Overseer's Image By William E. Wiethoff, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

Wherever slaves worked on plantations in the antebellum South, overseers were hired to supervise and discipline them. Crops, soil types, and topographies varied greatly across the region, but professional slave drivers were fixtures of the landscape from the colonial era to the Civil War. Their ubiquity pleased few people, slave or free. Accounts of their sadism, sexual violence, and general coarseness and stupidity are not limited to slave narratives and abolitionist tracts; gripes and horror stories fill the public and private writings of plantation owners, too. Harriet Beecher Stowe was hardly taking literary license when she made slave owner Simon …

Brief Amici Curiae Of Iowa Professors Of Law And History, Frederick Adams, Victoria Bissell Brown, Patricia Cain, Lois Cox, Ann Laquer Estin, Sally Frank, Elizabeth Heineman, Linda K. Kerber, Karen Leroux, Suzanne J. Levitt, Jean Love, Linda A. Mcguire, Kevin Mumford, Angela Onwuachi-Willig, Sarah J. Purcell, Margaret Raymond, Mark E. Schantz, Johanna Schoen, Leslie A. Schwalm, Mark Sidel, Peggie Smith, Maura Irene Strassberg, Shelton Stromquist

Faculty Scholarship

This case calls upon the State of Iowa to reaffirm its historic commitment to protecting the equality and individual liberties of all of its citizens, including its lesbian and gay male citizens. It requires this Court to interpret Iowa’s unique constitution with due respect for both text and tradition. The case must be analyzed against the backdrop of Iowa’s leadership and courage in the areas of civil rights and family law, and the willingness of its judiciary to uphold constitutional mandates in the face of efforts to legislate prejudice and discrimination.

Plaintiff-Appellees seek nothing more than to share in the …

William Thaddeus Coleman, Jr.: Breaking The Color Barrier At The U.S. Supreme Court, Todd C. Peppers

Scholarly Articles

The purpose of this essay is twofold: It will endeavor to succinctly summarize the important events of Coleman’s life and professional career, while making the argument that these achievements were as groundbreaking in the legal community as Robinson’s were to baseball. Admittedly, looking to our national pastime is hardly an original literary maneuver; The myriad similarities and links between baseball and the law have offered rich material for many legal writers.2 Moreover, this article does not wish to diminish Coleman’s accomplishments by comparing them to a mere “game.” By drawing upon the sixtieth anniversary of Robinson’s debut, my hope is …

From Pedagogical Sociology To Constitutional Adjudication: The Meaning Of Desegregation In Social Science Research And Law, Anne Richardson Oakes

Michigan Journal of Race and Law

In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This Article explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. …

Discriminatory Pay And Title Vii: Filing A Timely Claim, 41 J. Marshall L. Rev. 325 (2008), Megan E. Mowrey

UIC Law Review

No abstract provided.

Is Acquisition Everything? Protecting The Rights Of Occupants Under The Fair Housing Act, Rigel C. Oliveri

Faculty Publications

This article addresses a recent trend among the federal courts to deny housing discrimination claims under the Fair Housing Act in cases where the plaintiff was an occupant of the housing at the time the discrimination occurred. Put another way, the courts have begun to read the FHA as protecting only the right to obtain housing, not the right to occupy that housing free of discrimination.The trend began with a 2004 Seventh Circuit opinion authored by Judge Richard Posner in the case of Halprin v. The Prairie Single Family Homes. Halprin dismissed most of the claims of a Jewish couple …

The Giuliani Years: Corporation Counsel 1994–1997, Paul A. Crotty

NYLS Law Review

No abstract provided.

Focus On Batson: Let The Cameras Roll, Mimi Samuel

Faculty Articles

While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in …

Restoring Congressional Intent And Protections Under The Americans With Disabilities Act: Hearing Before The S. Comm. On Health, Education, Labor, & Pensions, 110th Cong., Nov. 15, 2007 (Statement Of Chai R. Feldblum, Geo. U. L. Center), Chai R. Feldblum

Testimony Before Congress

No abstract provided.

The Ada Restoration Act Of 2007: Hearing Before The H. Subcomm. On Constitution, Civil Rights, And Civil Liberties Of The H. Comm. On The Judiciary, 110th Cong., Oct. 4, 2007 (Statement Of Statement Of Chai R. Feldblum, Prof. Of Law, Geo. U. L. Center), Chai R. Feldblum

Testimony Before Congress

No abstract provided.

Race And Recalcitrance: The Miller-El Remands, Sheri Johnson

Cornell Law Faculty Publications

In Batson v. Kentucky, the Supreme Court held that a prosecutor may not peremptorily challenge a juror based upon his or her race. Although Baston was decided more than twenty years ago, some lower courts still resist its command. Three recent cases provide particularly egregious examples of that resistance. The Fifth Circuit refused the Supreme Court's instruction in Miller-El v. Cockrell, necessitating a second grant of certiorari in Miller-El v. Dretke. The court then reversed and remanded four lower court cases for reconsideration in light of Miller-El, but in two cases the lower courts have thus …

Who's Black, Who's Brown, And Who Cares?: A Legal Discussion Of Hernandez V. Texas, Gilbert Bradshaw

Brigham Young University Education and Law Journal

No abstract provided.

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

23(B)(2) Class Certification: Choosing An Approach For Certifying Civil Rights Discrimination Class Action Suits, James T. Tsai

ExpressO

The passage of the 1991 amendments to the Civil Rights Act granted injunctive as well as monetary damages for impermissible discrimination in the workplace. The Act also created a tension with the last revision of the Federal Rules of Civil Procedure in 1966. This revision prohibits the certification of a class under Rule 23(b)(2) if the damages sought are predominantly monetary in nature. On one end of this resulting tension is the desire to protect individuals rights to “opt-out” of a class action suit and maintain future individual actions. On the other end is the desire for judicial economy and …

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

Why Do Landlords Still Discriminate (And What Can Be Done About It)?, 40 J. Marshall L. Rev. 455 (2007), Robert G. Schwemm

UIC Law Review

No abstract provided.

Faces Of Open Courts And The Civil Right To Counsel, 37 U. Balt. L. Rev. 21 (2007), Steven D. Schwinn

UIC Law Open Access Faculty Scholarship

No abstract provided.