Courts Commons^™

Certiorari In Patent Cases, Christa J. Laser

Law Faculty Articles and Essays

In the decade from 2010 to 2019, the Supreme Court has decided more patent law cases than in the prior three decades combined. A higher percentage of its docket has been patent cases--5.45%--than in any decade in the last century. A number of scholars have advanced theories of why this rate of review of patent cases has increased and provided quantitative analyses. Yet no scholarship to date has used qualitative data to investigate why the Supreme Court’s patent docket is increasing and what factors the Supreme Court considers in its review of patent cases. This paper shares statistics of the …

It Is Time To Get Back To Basics On The Border, Donna Coltharp

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah

Articles

This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.

Law School News: Ruth Bader Ginsburg And Rwu Law 09/23/2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Mapping The Iceberg: The Impact Of Data Sources On The Study Of District Courts, Christina L. Boyd, Pauline T. Kim, Margo Schlanger

Articles

Three decades ago, Siegelman and Donohue aptly characterized research about courts and litigation that relied only on published opinions as “studying the iceberg from its tip.” They implored researchers to view published district court opinions “with greater sensitivity to the ways in which such cases are unrepresentative of all cases”. The dynamic, multistage nature of trial court litigation makes a focus solely on published opinions particularly ill-suited to the study of federal district courts. Expanded electronic access to court documents now allows more pre-cise analysis of the ways in which published cases are unrepresentative and what differences that makes for …

Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin

Pepperdine Law Review

Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …

A Call For America's Law Professors To Oppose Court-Packing, Bruce Ledewitz

Pepperdine Law Review

A Court-packing proposal is imminent. Mainstream Democratic Party Presidential Candidates are already supporting it. The number of Justices on the Supreme Court has been set at nine since 1869, but this is merely a statutory requirement. As soon as Democrats regain control of the Presidency and the Congress, Court-packing will be on the agenda, either expressly or under the guise of Court-reform. Now is the time for the American legal academy to join together to oppose this threat. Court-packing would threaten democracy, destroy the rule of law and undermine judicial independence. It is a pointless and unnecessary reaction born of …

Revisiting And Confronting The Federal Judiciary Capacity “Crisis”: Charting A Path For Federal Judiciary Reform, Ryan G. Vacca, Peter S. Menell

Law Faculty Scholarship

[excerpt] "This Article revisits and confronts the growing caseload and congestion problems plaguing the federal judiciary. It begins by tracing the history and political economy surrounding judiciary reform. It then updates data on caseloads, processing times, certiorari petitions, en banc review, and other measures of judicial performance, revealing expanding caseloads and growing complexity and fragmentation of federal law. Part III explores the political, institutional, and human causes of the logjam over judiciary reform and offers an antidote: a commission tasked with developing a judiciary reform act that would not go into effect until 2030. The “2030 Commission” members would …

The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker

Indiana Law Journal

In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch

stack of paper. But in the same year, federal administrative agencies promulgate

80,000 pages of regulations—which makes an eleven-foot paper pillar. This move

toward electorally unaccountable administrators deciding federal policy began in

1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than

elected representatives, unelected bureaucrats increasingly make the vast majority

of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three

areas: delegation, deference, and independence.

This trend is about to be reversed. In the coming years, Congress will …

Judicial Independence: Tweak The Guiding Paradigm, Charles G. Geyh

Articles by Maurer Faculty

Over time, the public has simply ceased to believe judges when say that they follow the law, and nothing but. If judges impose their ideological policy preferences, the argument goes, why should they be independent from political controls, when other policymakers are not? We have reached the point where, when judges seek to defend the customs and conventions that have guarded against incursions upon their independence by arguing that “we are all about the law and nothing else,” the public response has increasingly become, “No, no, no, your nose is growing.”

Boldly Marching Through Closed Doors: The Experiences Of The Earliest Female Attorneys In Their Own Words, Nicole P. Dyszlewski

Law Faculty Scholarship

No abstract provided.

Should Judges Have A Duty Of Tech Competence?, John G. Browning

St. Mary's Journal on Legal Malpractice & Ethics

In an era in which lawyers are increasingly held to a higher standard of “tech competence” in their representation of clients, shouldn’t we similarly require judges to be conversant in relevant technology? Using real world examples of judicial missteps with or refusal to use technology, and drawn from actual cases and judicial disciplinary proceedings, this Article argues that in today’s Digital Age, judicial technological competence is necessary. At a time when courts themselves have proven vulnerable to cyberattacks, and when courts routinely tackle technology related issues like data privacy and the admissibility of digital evidence, Luddite judges are relics that …

Appellate Jurisdiction And The Emoluments Litigation, Adam N. Steinman

Akron Law Review

This article—part of a symposium on federal appellate procedure—addresses questions of appellate jurisdiction that have played an important role in litigation challenging Donald Trump’s conduct under the Constitution’s Emoluments Clauses. When federal trial judges in the District of Columbia and Maryland rejected Trump’s early attempts to dismiss two of these cases, Trump sought immediate relief from the federal courts of appeals rather than allowing the litigation to proceed in the district courts. The lack of a traditional final judgment, however, prompted difficult jurisdictional issues for the D.C. Circuit and the Fourth Circuit.

In both cases, the relationship between appellate mandamus …

Three Ideas For Discretionary Appeals, Bryan Lammon

Akron Law Review

Discretionary appeals currently play a limited role in federal appellate jurisdiction. But reformers have long argued for a larger role. And any wholesale reform of the current appellate-jurisdiction system will likely involve additional or expanded opportunities for discretionary appeals. In this essay, I offer three ideas for the future of discretionary appeals—what form they might take in a reformed system of federal appellate jurisdiction and how we might learn about their function. First, remove any limits on the types of decisions that can be certified for immediate appeal under 28 U.S.C. § 1292(b). Second, give parties one opportunity in a …

The Renaissance Of Permissive Interlocutory Appeals And The Demise Of The Collateral Order Doctrine, Michael E. Solimine

Akron Law Review

Reserving appeals to final judgments has a long history in the federal courts, as do exceptions to that rule. The problem has less been the existence of the exceptions, but rather their scope and application. This article addresses two of those exceptions. One is permissive interlocutory appeals codified in section 1292(b) of the Judicial Code. That exception, requiring the permission of both the trial and appellate courts, has numerous advantages over other exceptions, has been frequently touted as such by the Supreme Court, and has been applied in several recent high-profile cases. In contrast, the collateral order doctrine, an ostensible …

Judicial Disqualification On Appeal, Cassandra Burke Robertson, Gregory Hilbert

Akron Law Review

Adjudication by an impartial decision maker is one of the cornerstones of due process. The interest is so fundamental that constitutional due process guards against even the appearance of partiality, and federal judges are statutorily required to disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned.” Courts and scholars alike have struggled with what it means to “reasonably question” a judge’s impartiality. That question has taken on greater salience in recent years, as deepening partisan divisions have increasingly led parties to express skepticism of judicial neutrality.

When a party files a motion to disqualify a judge …

Signed Opinions, Concurrences, Dissents, And Vote Counts In The U.S. Supreme Court: Boon Or Bane? (A Response To Professors Penrose And Sherry), Joan Steinman

Akron Law Review

Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices' assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process.

In this piece, I offer my thoughts in response to these proposals.

I argue several reasons to doubt that a prohibition on publication of concurring …

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Akron Law Review

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a …

Virtual Pretrial Jurisdiction For Virtual Contacts, Max D. Lovrin

Brooklyn Law Review

Personal jurisdiction is a threshold requirement for any civil court’s constitutional exercise of adjudicative authority over a defendant, and one of civil procedure’s most fundamental concepts. The Supreme Court is acutely aware of difficulties facing personal jurisdiction doctrine in an evolving world and the need for jurisprudential solutions to those problems. But recent inconsistent trends in Supreme Court personal jurisdiction jurisprudence have served to further complicate the doctrine. Such overcomplication often leads to unpredictability, which both increases expenses for litigants and creates additional work for the already overburdened federal civil docket. This problem is exacerbated when litigation arises out of …

A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick

Notre Dame Law Review

Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of …

Rewriting Judicial Recusal Rules With Big Data, Raymond J. Mckoski

Utah Law Review

Big data affects the personal and professional life of every judge. A judge’s travel time to work, creditworthiness, and chances of an IRS audit all depend on predictive algorithms interpreting big data. A client’s choice of counsel, the precise wording of a litigant’s motion, and the composition of the jury may be dictated by analytics. Touted as a means of bringing objectivity to judicial decision-making, judges have employed big data to determine sentences and to set the amount of restitution in class action cases. Unfortunately, the legal profession and big data proponents have ignored one perplexing problem begging for a …

What Probate Courts Cite: Lessons From The New York County Surrogate’S Court 2017-2018, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

By knowing what a judge cites, one may better understand what the judge believes is important, how the judge understands her work will be used, and how the judge conceives of the judicial role. Empirical scholars have devoted serious attention to the citation practices and patterns of the Supreme Court of the United States, the United States Courts of Appeals, and multiple state supreme courts. Remarkably little is known about what probate courts cite. This Article makes three principal claims — one empirical, one interpretative, and one normative. This Article demonstrates through data, derived from a study of all decrees …

Reflections On The Influence Of Social Media On Judging, Peter D. Lauwers Justice

Canadian Journal of Law and Technology

This essay examines the influence of social media on judging. While the ethical implications of judges’ engagement in social media have received some scholarly attention, the actual influence of social media on judging has not.1 But it is possible to make some useful observations that might at once seem obvious and disquieting.

This essay is divided into four parts. Part 1 describes the normative judicial disposition. Part 2 examines the psychology of judging. Part 3 asks what could go wrong with the judicial use of social media. Part 4 describes a stance judges might take towards social media.

Law School News: The Honorable Margaret H. Marshall: Doctor Of Laws, Honoris Causa 05-10-2020, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Table Of Contents

University of Richmond Law Review

No abstract provided.

Acknowledgements, Ashley R. Phillips

University of Richmond Law Review

Volume 54 of the University of Richmond Law Review quite possibly had an academic journey unlike any other. Who could have predicted as we said our goodbyes for spring break, it would be the last time we would work together in person? Volume 54 gave so much to have nearly everything taken by the COVID-19 pandemic. On September 20, 2020, I write these Acknowledgments-four months after the original May Book publication date-to those Law Review members I never had the chance to thank.

Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges

University of Richmond Law Review

Finally, this Article concludes by analyzing different potential methods for trying to balance religious liberty claims with antidiscrimination concerns, and thus Establishment Clause concerns, in public employment. This Article argues for a combination of relevant tests that balances the magnitude and likelihood of third party harm, substantiality of burden to religious liberty, and availability or prevalence of secular accommodations. This test provides room for factual inquiry and context-specific value judgments, while still allowing a workable framework, the results of which are sufficiently predictable that employers and employees are not left to wonder about the boundaries by which their relationship should …

Retroactive Justice: Toward Fundamental Fairness In Resentencing Crack Cocaine Offenders Under Section 404 Of The First Step Act, Daniel P. Peyton

University of Richmond Law Review

In analyzing these four methods, this Comment argues that Method IV best serves fundamental fairness in sentencing, in congruence with the purpose of the First Step Act. To resolve its arbitrary implementation, section 404 must be amended to require a full plenary resentencing in accordance with all updated sentencing guidelines and caselaw in effect at the time of the resentencing. This was the approach taken by the court in resentencing Mr. Rhines to time served. While the Supreme Court could rule Method IV is the correct interpretation of the statute, Congress is the more appropriate actor and should capitalize on …

Why Calls For Shifting To Brandeisian Economic Theory Are Flawed: An Evaluation Of The United States’ And European Union’S Approach To Vertical Mergers, John A. Fortin

University of Richmond Law Review

The tech industry has exploded over the last few decades and progressives are advocating for a shift in antitrust review in the United States (US).1 Seeking a modified economic theory based on the writings of the late Justice Louis Brandeis (Brandeisian economic theory), these advocates seek to control the vertical expansion of dominant tech firms such as Amazon.2 On a broad level, this position argues for a shift of US antitrust regulatory review towards the European Union’s (EU) application of antitrust regulation. This paper provides a review of both US and EU antitrust review, provides a primer on vertical merger …