Courts Commons^™

One Vote, Two Votes, Three Votes, Four: How Ranked Choice Voting Burdens Voting Rights And More, Brandon Bryer

University of Cincinnati Law Review

No abstract provided.

Rejecting Word Worship: An Integrative Approach To Judicial Construction Of Insurance Policies, Jeffrey W. Stempel, Erik S. Knutsen

University of Cincinnati Law Review

Insurance coverage litigation is a quest for discerning meaning: Does the insurance policy cover the loss at issue? Construing the insurance policy, courts attempt to give legal effect to what the document purports to command. But what were the intentions and expectations of insurer and insured? Do those intentions even matter? Or is only the written text of the policy relevant to the coverage result? Courts addressing these questions typically frame the interpretative choice as one of strict textualism versus contextual functionalism.

In many, perhaps even most situations, text and context align to create an “easy” case. If a factory …

Challenging Solitary Confinement Through State Constitutions, Alison Gordon

University of Cincinnati Law Review

Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. The two-part test established by the federal courts to evaluate Eighth Amendment claims and limitations on challenging prison conditions under the Prison Litigation Reform Act can make it difficult to establish that solitary confinement is cruel and unusual punishment.

State constitutional challenges to solitary confinement are underexplored. Nearly all state constitutions contain an equivalent provision to the Eighth Amendment’s prohibition on cruel and unusual punishment. State courts need not be bound by federal jurisprudence in interpreting the scope of the state …

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

The Rooker-Feldman Doctrine: The Case For Putting It To Work, Not To Rest, Bradford Higdon

University of Cincinnati Law Review

No abstract provided.

Case Study: The International Criminal Tribunal For The Former Yugoslavia’S Court Transcripts In Bosnian/Croatian/Serbian—Part 1: Needs, Feasibility, And Output Assessment, Besmir Fidahić

Genocide Studies and Prevention: An International Journal

International Criminal Tribunal for the Former Yugoslavia (ICTY) remains the most important organization for the past, the present, and the future of the former Yugoslavia. Faced with a country that always lived under totalitarian regimes with very little insight into actions of the groups and individuals who reaped unthinkable havoc on each other at the end of the twentieth century, the ICTY set undisputable historical record about events that took place during the 1991–1999 wars and put the country on an excellent track towards transformation for the better. But even 28 years since the establishment of the ICTY, the former …

Baby & Bathwater: Standing In Election Cases After 2020, Steven J. Mulroy

Dickinson Law Review (2017-Present)

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not …

Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes

Washington and Lee Law Review

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might …

Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel

Brooklyn Law Review

Corpus linguistics presents an exciting tool for improving interpretation of documentary language. But it would be a mistake to overvalue the tool or to use it as grounds for ejecting consideration of other data from the interpretative task. While properly operationalized corpus linguistics analysis represents an advancement over traditional textualism, it remains subject to the same problems that plague excessively rigid textualism that refuses to give consideration to contextual evidence of meaning. To be most effective in achieving accurate and just interpretative results, corpus linguistics, like traditional reading of documentary language, requires context. This includes not only the context of …

Big Data And Accuracy In Statutory Interpretation, Brian G. Slocum

Brooklyn Law Review

Scholarship is increasingly devoted to improving the “accuracy” of statutory interpretations, but accuracy is a contingent concept dependent on interpretive perspective. If, for instance, a scholar focuses on the language production of the legislature, she may seek to improve the methodology of statutory interpretation through a more sophisticated understanding of the legislative process. Thus, the scholar may argue that one can assess the reliability of the different types of legislative history by focusing on the actors and processes that produce them. Conversely, a scholar might focus on the language comprehension of some speech community, such as the one comprised of …

Mechanical Turk Jurisprudence, Shlomo Klapper

Brooklyn Law Review

This paper argues that data-driven interpretation creates a “Mechanical Turk” jurisprudence: a jurisprudence that appears mechanical but in fact is thoroughly human. Its contribution to the literature is twofold. First, it articulates an intellectual history of data-driven interpretation: data-driven tools have been adopted because society associates quantification with a mechanical objectivity and because objectivity is at the center of debates over statutory interpretation. Second, it criticizes surveys as an interpretative tool: in addition to a host of practical execution problems, surveys misunderstand the concept of “ordinary meaning” and threaten to undermine the value of faithful agency.

Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail

Brooklyn Law Review

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will deliver …

Natural Language And Legal Interpretation, Stephen C. Mouritsen

Brooklyn Law Review

Judges and lawyers often appeal to the “ordinary meaning” of the words in legal texts. Until very recently, claims about the ordinary meaning of words in legal texts have not been informed by evidence of the way that words are used or understood by ordinary people. This is because no such evidence—and no method to gather such evidence—was available. Instead, judges, parties, and scholars have been left to rely on their own linguistic intuitions and dictionaries, both of which are problematic guides to the usage or understanding of ordinary people. This symposium on Data Driven Interpretation focuses on recent developments …

“Corruptly” Continues Consistently Confounding Courts: A New Look At “Corruptly Persuades” In 18 U.S.C. § 1512(B) Obstruction Of Justice, Connor Nelson

Utah Law Review

The word “corruptly” presents significant interpretation problems to courts construing the word in statutes. This word has created a circuit split between the Second and Third Circuits over 18 U.S.C. § 1512(b), which forbids corruptly persuading witnesses not to cooperate with federal authorities. The Second Circuit requires defendants to have an improper purpose for persuading a witness not to cooperate. The Third Circuit requires defendants to know they have a corrupt motive behind their persuasion. Rather than declare one approach superior to the other, this Note instead contends that both Circuits achieve the same outcome for two reasons. First, both …

Brief Of Amicus Curiae Ethics And Public Policy Center In Support Of Petitioners And Reversal, Richard W. Garnett, Charles J. Cooper, Peter A. Patterson, Brian W. Barnes, John D. Ohlendorf

Court Briefs

No. 19-1392
Thomas E. Dobbs v. Jackson Women's Health Organization

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Introduction and Summary of the Argument

By the narrowest of margins, this Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992), refused to overrule Roe—not because it thought Roe was correct, but because it thought Roe must endure as a matter of stare decisis. But 30 years later it has become clear that Casey, too, was egregiously wrong, for each one of the stare decisis factors cited by …

Brief For Professors Mary Ann Glendon And O. Carter Snead As Amici Curiae In Support Of Petitioners, Heather Gebelin Hacker, O. Carter Snead

Court Briefs

No. 19-1392
Thomas E. Dobbs v. Jackson Women's Health Organization

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Summary of Argument

Mississippi’s 2018 Gestational Age Act, which prohibits abortions after 15 weeks gestational development (with exceptions for medical emergency or fetal abnormality) is quite modest in impact, more permissive than the vast majority of the laws on abortion around the world (including in all but three European nations), and appears to be broadly popular. But it seems to clearly violate the Supreme Court-made law of abortion, which forbids the State from …

The Varying Interpretations Of The United States Constitution, Joseph Longo

Helm's School of Government Conference - 2021-2024

The laws of these United States of America are in place to remedy the issues within and against American society by ensuring American’s citizens’ rights are protected against other citizens, organizations, and the government itself.[1] America’s founders gave future generations a framework, the supreme law of the land, to guide the path of the country in a way that they saw just.[2] The U.S. Constitution has been the framework for the American government and society for over 200 years to promote the country the founders of the nation had envisioned. The Constitutional debate today is over how this …

Environmental Justice Class Action Rises Above The Rubbish: The Third Circuit Revives Common-Law Nuisance Remedies In Baptiste V. Bethlehem Landfill Co., Kyra G. Bradley

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Getting Away With Murder: How California State Law Determined Recovery In First Roundup Cancer Case Johnson V. Monsato Co., Eliza L. Quattlebaum

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Saddest Show On Earth: The Endangered Species Act As Applied To Captive, Endangered Mammals In People For The Ethical Treatment Of Animals Inc. V. Miami Seaquarium, Anne Ringelestein

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Appellate Review Of Courts-Martial In The United States, Scott W. Stucky

Catholic University Law Review

No abstract provided.

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Program: Senior Projects (Public)

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

The Constitution And Democracy In Troubled Times, John M. Greabe

Law Faculty Scholarship

Does textualism and originalism approach positively impact democracy?

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.

Systemic Racism And Immigration Detention, Carrie L. Rosenbaum

Seattle University Law Review

The denouement of the Trump presidency was a white supremacist coup attempt against a backdrop of public reawakening to the persistence of institutionalized racism. Though the United States has entered a new administration with a leader that expresses his commitment to ending institutionalized racism, the United States continues to imprison Central American and Mexican immigrants at the southern border. If the majority of the people in immigration jails at the border are Latinx, does immigration law disparately impact them, and do they have a right to equal protection? If they do, would equal protection protect them? This Article explores whether …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

The Participation Principle And The Dialectic Of Sovereignty-Sharing, George K. Foster

Seattle University Law Review

States around the world are ceding authority to international institutions, devolving powers to lower-level political subdivisions, and granting forms of autonomy to Indigenous peoples and other minority groups. At the same time, states are increasingly offering groups and individuals “participation rights”: opportunities to participate in sovereign prerogatives without exercising control. These opportunities range from providing input into environmental decision-making, to collaborating with law enforcement in community policing programs, to receiving a share of natural-resource revenues. This Article contends that all of these developments represent a dividing up of the collection of rights known as sovereignty, and that participation rights reflect …

International Courts & Judicial Affairs, Sara L. Ochs, Paula Henin, Paola Patarroyo, Haydee Dijkstal, Ira Trako, Kabir Duggal, Chloe Fletcher, Alexander Witt, Marc Weitz

All Faculty Scholarship

This chapter reviews some of the most significant developments made by international courts and tribunals in 2020.

I. International Court of Justice As of the time of writing (November 2020), this year, the International Court of Justice (Court) has rendered one order on provisional measures, two judgments on appeals from decisions of the International Civil Aviation Organization (ICAO) Council, and two orders relating to expert evidence.

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …