Courts Commons^™

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Music, Mayhem, And A Mississippi: Still Burning-The Hope Of Smothering The Deleterious Effects Of Deliberate Indifference, Angela Dixon

Cardozo Journal of Equal Rights & Social Justice

The article argues that the deliberate indifference standard, as applied in Eighth Amendment jurisprudence, fails to adequately address inhumane and unconstitutional prison conditions, particularly in Mississippi. It critiques the standard for prioritizing prison officials' intent over objective conditions, allowing systemic neglect and racial disparities to persist. The analysis advocates for a shift toward an objective standard to better protect human dignity and hold prison administrators accountable.

SchröDinger’S Dissent: The Hybrid Authority Of A Dissenting Opinion, Christina M. Frohock

Marquette Law Review

A dissenting opinion is the Schrödinger’s cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is not binding. Outside the universe of precedent, that authority defies easy description. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of commentary. A dissenting judge writes to undercut the law, providing a case law coda. This Article describes the traditional categories of authority, primary and …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

What Mediation Romantics Can Learn From The Model T (Or Maybe The Chevrolet Trax), Nancy A. Welsh

Cardozo Journal of Conflict Resolution

When mediation was reintroduced to the U.S. in the 1970s, it was infused with a democracy-and-self-determination-enhancing, social justice ethos. As the process has been very successfully institutionalized, however, these ambitions have been scaled backalthough, at least arguably, certain "mediative elements" have actually been adopted (or coopted) by other procedural innovations. Perhaps it is time for those of us frustrated with the evolution of mediation to reconcile ourselves to the reality and value of a "basic" model of mediation designed for the sole purpose of getting parties from dispute to settlement-in much the same way that the basic model of a …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Appoint Judge Ana De Alba To The Ninth Circuit, Carl Tobias

University of Richmond Law Review

The United States Senate must rapidly appoint Eastern District of California Judge Ana de Alba to the Ninth Circuit. This appellate tribunal is a preeminent regional circuit, which faces substantial appeals, has the largest complement of jurists, and clearly includes a massive geographic expanse. The nominee, whom President Joe Biden designated in spring 2023, would offer remarkable gender, experiential, ideological, and ethnic diversity realized primarily from serving productively with the California federal district, and state trial, courts after rigorously litigating for one decade in a highly regarded private law firm. For over fifteen years, she deftly excelled in law’s upper …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Michigan Senators' Crucial Role In Keeping Federal Courts Full, Carl W. Tobias

Law Faculty Publications

One critical responsibility that the American Constitution assigns senators is the provision of comprehensive advice and consent respecting accomplished federal judicial candidates suggested by the President to serve, particularly in their home states. Democratic Senator Debbie Stabenow, who is completing her fourth term representing Michigan, has always joined with her colleague Democratic Senator Gary Peters in the administration of President Joe Biden and Vice President Kamala Harris to astutely discharge this crucial responsibility. Stabenow and Peters exercised sound judgment, intelligence, hard work, and keen appreciation for the distinct roles that the Constitution accords the President and senators in the confirmation …

Judges And The Regulatory State: Trends Of Resistance And Restraint, Luke P. Norris

Law Faculty Publications

The last great confrontation between courts and the regulatory state occurred at the turn of the previous century. As courts in the first decades of the twentieth century resisted regulatory laws designed to protect workers and curb market excesses, they sustained broad legal and public critique, including claims that they were guardians of corporate power and monied and propertied interests. The showdown, as is familiar fare, was seemingly resolved in the New Deal, with the Supreme Court and judiciary largely accepting the constitutionality of federal and state regulatory laws. The compromise that emerged, dubbed the “New Deal settlement,” ostensibly called …

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron

Touro Law Review

No abstract provided.

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

Partisan Panel Composition And Reliance On Earlier Opinions In The Circuit Courts, Stuart Minor Benjamin, Byungkoo Kim, Kevin M. Quinn

Faculty Scholarship

Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard's treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what …

To Legitimacy And Beyond: A Reform Agenda To Restore Public Confidence In The Federal Courts, Charles G. Geyh

Articles by Maurer Faculty

The article begins by describing he ongoing cycle of anti-court sentiment directed at the federal courts. It situates that cycle in historical context, to the end of showing how independence norms have evolved to constrain more draconian efforts to curb the courts in those cycles. The article then explains why the latest cycle is unusually aggressive and why norms that have protected the judiciary’s independence for generations may be at risk if public skepticism of the courts reaches the point of undermining the judiciary’s perceived legitimacy. Next, the article sorts through the definitional clutter that complicates assessments of whether the …

#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez

Washington and Lee Law Review Online

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district …

Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim

BYU Law Review

Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is …

The Curious Case Of Justice Neil Gorsuch, Justin Burnworth

Pace Law Review

Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …

The Administrative State's Jury Problem, Richard Lorren Jolly

Washington Law Review

This Article argues that the administrative state’s most acute constitutional fault is its routine failure to comply with the Seventh Amendment. Properly understood, that Amendment establishes an independent limitation on congressional authority to designate jurisdiction to juryless tribunals, and its dictate as to “Suits at common law” refers to all federal legal rights regardless of forum. Agencies’ use of binding, juryless adjudication fails these requirements and must be reformed. But this does not mean dismantling the administrative state; it is possible (indeed, necessary) to solve the jury problem while maintaining modern government. To that end, this Article advances a structural …

Preface, Alexandra M. Voehringer

University of Richmond Law Review

The University of Richmond Law Review proudly presents the thirty-eighth issue of the Annual Survey of Virginia Law. Since 1985, the Annual Survey has served as a guiding tool for practitioners and students to stay abreast of recent legislative, judicial, and administrative developments in the Commonwealth of Virginia. Today, the Annual Survey is the most widely read publication of the Law Review, reaching lawyers, judges, legislators, and students in every corner of the Commonwealth.

Table Of Contents

University of Richmond Law Review

No abstract provided.

Foreword, The Honorable L. A. Harris Jr.

University of Richmond Law Review

“Your writing is so bad you will not be considered for Law Review and there is some question about your admittance to Law School.”

Life is strange and ironic. In 1974 as a second year law student at the T. C. Williams School of Law at the University of Richmond, I was invited to submit an article to determine if I would be permitted to serve on the Law Review. A member of the Law Review evaluated my article and met with me. In summation he said my writing was so bad that I would not be considered for Law …

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This Article discusses Supreme Court of Virginia and, for the first time, Court of Appeals of Virginia analysis of procedural issues. The Article further discusses revisions to civil procedure provisions of the Code of Virginia and Rules of the Supreme Court of Virginia in the last year.

The Article first addresses opinions of the supreme court and court of appeals, then new legislation enacted during the 2023 General Assembly Session, and finally revisions to the Rules of the Supreme Court of Virginia.

Taxation, Craig D. Bell

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions from the past year. Part I of this Article addresses taxes administered by the Virginia Department of Taxation (the “Tax Department” or “Department”). Part II covers local taxes, including real and tangible personal property machinery and tools, license taxes, and other discrete local taxes.

The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia taxation that are most likely to impact …

The Current State Of Abortion Law In Virginia Leaves Victims Of Domestic And Sexual Violence Vulnerable To Abuse: Why Virginia Should Codify The Right To Abortion In The State Constitution†, Courtenay Schwartz

University of Richmond Law Review

All people must have access to safe and legal reproductive health care—especially victims of sexual and domestic violence who can and do become pregnant because of the violence they experience. This year, the United States Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey in Dobbs v. Jackson Women’s Health Organization. In doing so, the Supreme Court held that the Constitution does not protect the right to an abortion. Though abortion access is currently protected in Virginia, this could change with each new General Assembly session. To guard against the danger that this poses to …

Legal Representation Of Parents In Child Dependency Cases In Virginia, Eric J. Reynolds

University of Richmond Law Review

Virginia’s current system of providing court-appointed legal counsel for parents involved in child dependency cases is unsustainable and inadequate, requiring swift and dramatic action from the state government. Inadequate legal representation for parents often leads to poor outcomes for children and a lack of protections for the parents’ due process rights. While attempts to improve the system have been made in recent years, they are often quickly dismissed. The largest hindrances in the current system, this Article suggests, is that court-appointed attorneys for parents are typically underpaid, undertrained, and consequently unable to meaningfully advocate for their client. Due to the …

Taxing The New With The Old: Capturing The Value Of Data With The Corporate Income Tax In Virginia, Coleman H. Cheeley

University of Richmond Law Review

The Commonwealth of Virginia markets itself as “The Largest Data Center Market in the World.”In 2019, the Northern Virginia market alone was the largest in the United States by inventory, with room to grow. In 2021, data centers in Northern Virginia required an estimated 1,686 megawatts of power; that number is expected to increase by 200 megawatts in the near future, reflecting data centers currently under development. For reference, in 2022, it was estimated that more than 100 homes could be powered by one megawatt of solar power in Virginia. Historically, data centers have been located in the Commonwealth due …