Courts Commons^™

How To Use Court Websites Like A Law Librarian: Tools And Tactics For Using Colorado's Court Websites For Legal Research, Annakatherine Wherren

Publications

No abstract provided.

State Constitutionalism's Fragile Wall, Adam B. Sopko

Publications

The adequate and independent state grounds (AISG) doctrine has long demarcated the perimeter of the U.S. Supreme Court’s authority to review state court decisions, limiting review to questions of federal law. AISG maintains the Court’s primacy over federal law and state courts’ supremacy over state law. A comprehensive review of all filings on the Court’s docket from state courts over the last twenty years reveals that recent applications of AISG consist of subtle but significant departures from existing norms that, together, suggest a reformulation of the Court’s power over state courts that threatens their sovereign law development role. This Essay …

The Supervisory Power Of State Supreme Courts, Adam B. Sopko

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State supreme courts are currently center stage as they face some of the most important issues of our time. But nearly all of the attention is focused on their ability to interpret state constitutions to provide rights guarantees that the U.S. Supreme Court has diminished or eliminated from the Federal Constitution. While important, judicial review is but one instance of a state high court’s authority. Their supervisory power—the primary source of judicial administrative authority—has served as a vital source of policymaking power to safeguard individual rights and enhance the public good. Supreme courts have relied on their supervisory power to …

Invisible Adjudication In State Supreme Courts, Adam B. Sopko

Publications

As the U.S. Supreme Court continues retrenching important constitutional rights, interest is shifting to state courts and constitutions to serve as a backstop. More and more, state supreme courts are at the center of some of our most important debates of law and policy, resolving questions concerning bodily autonomy, democracy, the environment, and more. The increased attention on state supreme courts highlights the complexity and nuance that attend these institutions and reveals our limited understanding of how they operate and influence society. This Article examines one such aspect of state supreme court practice: the shadow docket. While the U.S. Supreme …

Standing For Elections In State Courts, Miriam Seifter, Adam B. Sopko

Publications

Litigation has become a fixture of electoral contests. Litigants today often challenge every step of an election, from the results themselves to picayune aspects of administration. In response to this deluge, some courts have rejected election lawsuits on standing grounds. Such rulings may be unsurprising in federal court, given the tension between the federal standing doctrine's injury requirements and the generalized nature of many election disputes. But most recent election cases take place in state court, where neither Article III nor the premises animating federal standing doctrine apply. State courts need election justiciability theories of their own.

This Article explores …

Biden, Bennet, And Bipartisan Federal Judicial Selection, Carl Tobias

University of Colorado Law Review Forum

No abstract provided.

How To (Not) Do Things With Judicial Opinions: Minding The Performative Power Of Facts And Dicta, Mb Beasley

University of Colorado Law Review

"Three generations of imbeciles are enough."l These words of Justice Oliver Wendell Holmes are some of the most infamous and evocative penned from behind the bench of the Supreme Court of the United States. Beyond the feelings of revulsion reading the opinion causes, the facts that Justice Holmes declared to be true and the dicta he used to bolster the Court's holding in Buck v. Bell helped to create the social world we live in today and continue to affect it. Though previous scholarship has recognized the importance of acknowledging the performative power of words in the legal field, little …

Constitutional Norms And State Judicial Confirmations, Adam B. Sopko

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No abstract provided.

Catalyzing Judicial Federalism, Adam B. Sopko

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No abstract provided.

Catch And Release Jurisdiction, Adam B. Sopko

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No abstract provided.

The Immigration Court: Zigzagging On The Road To Judicial Independence, Mimi Tsankov

University of Colorado Law Review

The Article will begin by outlining the basic structure of the existing system and identifying some of the key changes that have impacted IJs (Immigation Judges) on the bench, which have driven us to a moment in history that many argue is our most tenuous. Part I will offer a brief overview of our court structure for context. Part II will explain how, after a tumultuous five years, Immigration Courts are currently significantly tarnished such that rehabilitation of the existing system may serve a short-term purpose but will inevitably fail to address the larger, fundamental inequities that result from a …

Women’S Votes, Women’S Voices, And The Limits Of Criminal Justice Reform, 1911–1950, Carolyn B. Ramsey

Publications

Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience—through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal …

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

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No abstract provided.

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

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No abstract provided.

Criminal Law In Crisis, Benjamin Levin

University of Colorado Law Review Forum

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …

Pushing The Envelope: Salzberg V. Sciabacucchi And Delaware's Evolving View Of The Internal Affairs Doctrine, Mark J. Loewenstein

Publications

In January, 2020, the Delaware Supreme Court handed down its decision in Salzberg v. Sciabacucchi, upholding a provision in a certificate of incorporation that designated the federal courts as the exclusive jurisdiction for the litigation of claims under the federal Securities Act of 1933. The inclusion of these provisions in Delaware charters and bylaws – often referred to as “Federal Forum Provisions” or FFPs – raised important questions as to the reach of the internal affairs doctrine. This doctrine provides that the jurisdiction of incorporation regulates the internal affairs of its corporations: the relationship among and between the corporate …

Policing Procedural Error In The Lower Criminal Courts, Justin Murray

Publications

The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …

#Metoo And Mass Incarceration, Aya Gruber

Publications

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020). The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime …

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

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No abstract provided.

Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim

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At first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article …

Fact Or Fiction: Flawed Approaches To Evaluating Market Behavior In Securities Litigation, Ann Lipton

Publications

Courts entertaining class actions brought under Section 10(b) of the Securities Exchange Act are required to make numerous factual judgments about the economic effects of the alleged misconduct. For example, they must determine whether and for how long publicly-available information has exerted an influence on security prices, and whether an alleged fraud caused economic harm to investors. Judgments on these matters dictate whether cases will proceed to summary judgment and trial, whether classes will be certified and the scope of such classes, and the damages that investors are entitled to collect.

Over the years, courts have developed a variety of …

Copyright Arbitrage, Kristelia A. García

Publications

Regulatory arbitrage—defined as the manipulation of regulatory treatment for the purpose of reducing regulatory costs or increasing statutory earnings—is often seen in heavily regulated industries. An increase in the regulatory nature of copyright, coupled with rapid technological advances and evolving consumer preferences, have led to an unprecedented proliferation of regulatory arbitrage in the area of copyright law. This Article offers a new scholarly account of the phenomenon herein referred to as “copyright arbitrage.”

In some cases, copyright arbitrage may work to expose and/or correct for an extant gap or inefficiency in the regulatory regime. In other cases, copyright arbitrage may …

The Use Of Courts To Protect The Environmental Commons, Lakshman Guruswamy

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No abstract provided.

No Longer A Second-Class Class Action? Finding Common Ground In The Debate Over Wage Collective Actions With Best Practices For Litigation And Adjudication, Scott A. Moss, Nantiya Ruan

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Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions – requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized …

Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux

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No abstract provided.

Commentary, Improving The Quality And Consistency Of Copyright Infringement Analysis In Music, Kristelia A. García

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No abstract provided.

Dethroning The Hierarchy Of Authority, Amy J. Griffin

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The use of authority in legal argument is constantly evolving—both the types of information deemed authoritative and their degree of authoritativeness—and that evolution has accelerated in recent years with dramatic changes in access to legal information. In contrast, the uncontroversial and ubiquitous “hierarchy of authority” used as the cornerstone for all legal analysis has remained entirely fixed. This article argues that the use of the traditional hierarchy as the dominant model for legal authority is deeply flawed, impeding a deeper understanding of the use of authority in legal argument. Lawyers, judges, and academics all know this, and yet no scholarly …

The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley

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Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, …

Celebrating Mundane Conflict, Deborah J. Cantrell

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This Article interrogates the dominant conception of conflict and challenges the narrative of conflict as hard, difficult and painful to engage. The Article reveals two primary framing errors that cause one to misperceive how ubiquitous and ordinary is conflict. The first error is to misperceive conflict as categorical — something either is a conflict or it is not. People make that error as a way of trying to avoid conflict. People falsely hope that there might be a category of “not conflict,” like disagreements, that will be easier to navigate. The second error is to misperceive the world and individuals …

Introducing Govinfo: A New Source For Federal Government Documents Online, Erik Beck

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No abstract provided.