Courts Commons^™

Justice Citizenship, Lauren Sudeall

Vanderbilt Law School Faculty Publications

In recent years, the topic of democracy has seen a resurgence-perhaps due in part to a recognition of its heightened global instability. Yet, in these pervasive discussions regarding democracy and its role with respect to governance, relatively little attention has been paid to the courts, particularly at the state and local levels where most people are likely to interact with them. In a time when the courts' authority is being questioned, it may be helpful to emphasize that courts, like all democratic institutions, are "of the people, by the people, [and] for the people." In relation to the other branches …

The Purpose Of The Preliminary Injunction, Samuel L. Bray

Vanderbilt Law Review

This Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a “hold in place” order, blocking actions by the parties that would undermine the efficacy of the court’s remedial options. But the preliminary injunction is becoming a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits. This Article critiques this transformation, and it argues that the preliminary injunction should be recentered on the protection of the court’s remedial options.

Chancery Court Rejects Argument That Corwin Is Inapplicable To Post-Signing Board, Robert S. Reder, Jonathan Rose

Vanderbilt Law School Faculty Publications

No abstract provided.

Chancery Court Declares Corwin Unavailable To Defend Against Unocal Claim For Injunctive Relief, Robert S. Reder, Kathleen E. Sharkey

Vanderbilt Law School Faculty Publications

In Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del.2015) ("Corwin"), the Delaware Supreme Court ruled that "a fully informed, uncoerced vote of a majority of the company's disinterested stockholders" precludes application of the fact-based enhanced scrutiny standard of review under Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986) ("Revlon"). See In re Edgio, Inc. Shareholders Litigation, C.A. No. 2022-0624, 2023 WL 3167648, at *10 (Del. Ch. May 1, 2023) ("Edgio"). Because application of Corwin "restore[s] business judgment review," alleged breaches of so-called Revlon duties by corporate directors effectively are "cleansed" by a qualifying …

Chancery Court Demonstrates Willingness To Apply Context-Specific Tests In Assessing Challenges To Advance Notice Bylaws, Robert S. Reder, Noah Nance

Vanderbilt Law School Faculty Publications

It is well established," under Delaware law, "that stockholders have a fundamental right to 'vote for the directors that the s[tock]holder[s] want [] to oversee the firm.'" Sternlicht v. Hernandez, 2023 WL 3991642 (Del. Ch. June 14, 2023) ("Sternlicht"). Moreover, "[s]ubsumed within that fundamental right to vote is the right to nom- inate a competing slate." Despite this recognition, the Delaware Gen- eral Corporation Law "is silent as to how a stockholder may propose a nominee for election." Strategic Inv. Opportunities LLC v. Lee Enters., Inc., 2022 WL 453607 (Del. Ch. Feb. 14, 2022) ("Strategic Investment Opportunities"). "[T]o fill this …

Barring Judicial Review, Laura E. Dolbow

Vanderbilt Law Review

Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …

Evidence-Based Hearsay, Justin Sevier

Vanderbilt Law Review

The hearsay rule initially appears straightforward and sensible. It forbids witnesses from repeating secondhand, untested gossip in court, and who among us prefers to resolve legal disputes through untested gossip? Nonetheless, the rule's unpopularity in the legal profession is well-known and far-reaching. It is almost cliche to say that the rule confounds law students, confuses practicing attorneys, and vexes trial judges, who routinely make incorrect calls at trial with respect to hearsay admissibility. The rule fares no better in the halls of legal academia. Although defenses exist, scholars have unleashed a parade of pejoratives at the rule over the years, …

Creating A People-First Court Data Framework, Lauren Sudeall, Charlotte S. Alexander

Vanderbilt Law School Faculty Publications

Most court data are maintained--and most empirical court research is conducted--from the institutional vantage point of the courts. Using the case as the common unit of measurement, data-driven court research typically focuses on metrics such as the size of court dockets, the speed of case processing, judicial decision-making within cases, and the frequency of case events occurring within or resulting from the court system.

This Article sets forth a methodological framework for reconceptualizing and restructuring court data as "people-first"-centered not on the perspective of courts as institutions but on the people who interact with the court system. We reorganize case-level …

White-Collar Courts, Merritt E. Mcalister

Vanderbilt Law Review

Article III courts are white-collar courts. They are, scholars have said, "special." They sit atop the judicial hierarchy, and they are the courts of the one percent. We inculcate that sense of specialness in a variety of ways: federal courts are courts of limited jurisdiction; they are the subject of a (perhaps overrated) class in law school; we privilege clerkships with federal judges more than with state-court judges; and we focus more scholarly attention on federal courts than state courts. They are, in short, the courts of the elite- jurisdictionally, doctrinally, and socially. Perhaps the singular importance of federal courts …

Presumptive Use Of Pretrial Risk Assessment Instruments, Christopher Slobogin

Vanderbilt Law School Faculty Publications

One proposed reform of the pretrial detention system is the adoption of risk assessment instruments to assist courts in determining who is at risk of reoffending or a flight risk. This Response to Professor Melissa Hamilton's Article, Modelling Pretrial Detention, proposes that under most circumstances the results of well-validated instruments should not only inform pretrial outcomes but should dictate them, on the ground that such results are more likely to be accurate than judicial decision-making. The Response also provides evidence that this reform would significantly reduce pretrial detention rates and, consistent with Professor Hamilton's findings, avoid producing racially disparate results.

Courts Without Court, Andrew G. Ferguson

Vanderbilt Law Review

What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …

The Emerging Authority Of Magistrate Judges Within U.S. District Courts, Tracey E. George, Christina L. Boyd, Albert H. Yoon

Vanderbilt Law School Faculty Publications

The federal judicial system is a hierarchy with district courts at the bottom, courts of appeals in the middle, and the Supreme Court at the top. A second, less visible, judicial hierarchy exists within district courts, with magistrate judges situated below district judges. Existing scholarship largely ignores magistrate judges, assuming they are agents tasked with procedural matters with little independent effect on federal courts adjudication. Using a combination of national administrative data (2000–2016) and original case-level data from nine district courts (1997–2014), we find that district courts not only grant meaningful responsibility and discretion to magistrate judges but do so …

The Overreach Of Limits On 'Legal Advice', Lauren Sudeall

Vanderbilt Law School Faculty Publications

Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice.

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James Blumstein

Vanderbilt Law School Faculty Publications

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But …

Many Minds, Many Mdl Judges, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

My focus here is on a cost that has been surprisingly neglected by scholars but may be the greatest cost of them all: the accurate adjudication of legal claims and defenses. I suspect it is intuitive to most of us that asking one person to decide something instead of inviting many other people to weigh in probably reduces the quality of the resulting decision. There is a literature that formalizes this intuition called "many-minds" scholarship. It proceeds from a famous mathematics proof known as the Condorcet Jury Theorem. Although some people have questioned the applicability of many-minds theories to legal …

Praxis And Paradox: Inside The Black Box Of Eviction Court, Lauren Sudeall, Daniel Pasciuti

Vanderbilt Law Review

In the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how “court” functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.

For many tenants facing eviction, elements of the …

The Evolving Technology-Augmented Courtroombefore, During, And After The Pandemic, Fredric I. Lederer

Vanderbilt Journal of Entertainment & Technology Law

Even before the COVID-19 Pandemic, technology was changing the nature of America’s courtrooms. Access to case management and e-filing data and documents coupled with electronic display of information and evidence at trial, remote appearances, electronic court records, and assistive technology for those with disabilities defined the technology-augmented trial courtroom. With the advent of the Pandemic and the need for social distancing, numerous courts moved to remote appearances, virtual hearings, and even virtual trials. This Article reviews the nature of technology-augmented courtrooms and discusses virtual hearings and trials at length, reviewing legality, technology, human factors, and public acceptance, and concludes that …

The Case For A Federal Criminal Court System (And Sentencing Reform), Christopher Slobogin

Vanderbilt Law School Faculty Publications

In their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. As they depict it, justice in the federal courts is either delayed or denied, disparity in legal outcomes among circuits is increasing, and the Supreme Court is falling farther and farther behind in resolving circuit splits. While these problems have been around for a while, Menell and Vacca argue they are getting worse and will only continue to worsen if radical action is not taken. Their article provides enough of a factual record to …

Statistical Precedent: Allocating Judicial Attention, Ryan W. Copus

Vanderbilt Law Review

The U.S. Courts of Appeals were once admired for their wealth of judicial attention and for their generosity in distributing it. At least by legend, almost all cases were afforded what William Richman and William Reynolds have termed the “Learned Hand Treatment.” Guided by Judge Learned Hand’s commandment that “[t]hou shalt not ration justice,” a panel of three judges would read the briefs, hear oral argument, deliberate at length, and prepare multiple drafts of an opinion. Once finished, the judges would publish their opinion, binding themselves and their colleagues in accordance with the common-law tradition. The final opinion would be …

Standing, Still? The Evolution Of The Doctrine Of Standing In The American And Israeli Judiciaries: A Comparative Perspective, Joshua Hoyt

Vanderbilt Journal of Transnational Law

The doctrine of standing plays an important role in limiting the classes of cases or controversies that are appropriate for judicial resolution; considered with other justiciability doctrines, judicial standing necessarily reflects the broader role of the court in society. Though the American judiciary had rather generous standing policies in place at the time of the founding, with the rise of the administrative state in the aftermath of the New Deal, progressive justices saw fit to restrict judicial standing as a means of insulating regulatory programs from industry challenge. In contradistinction, the young Israeli society has some of the most accessible …

Standing For Nothing, Robert A. Mikos

Vanderbilt Law School Faculty Publications

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such "protective" standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited-that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus, …

Private Enforcement In Administrative Courts, Michael Sant'ambrogio

Vanderbilt Law Review

Scholars debating the relative merits of public and private enforcement have long trained their attention on the federal courts. For some, laws giving private litigants rights to vindicate important policies generate unaccountable private attorneys general" who interfere with public enforcement goals. For others, private lawsuits save cash-strapped government lawyers money, time, and resources by encouraging private parties to police misconduct on their own. Yet largely overlooked in the debate is enforcement inside agency adjudication, which often is depicted as just another form of public enforcement, only in a friendlier forum.

This Article challenges the prevailing conception of administrative enforcement. Based …

Beyond Samuel Moyn's Countermajoritarian Difficulty As A Model Of Global Judicial Review, James T. Gathii

Vanderbilt Journal of Transnational Law

This Article responds to Samuel Moyn's critique of judicial review and his endorsement of judicial modesty as an alternative. By invoking the countermajoritarian difficulty, Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. I reject Moyn's claim that this kind of judicial modesty should define the role of courts for all time. By applying the countermajoritarian difficulty beyond its United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts globally. Moyn's vision says nothing about when it would be appropriate for courts to rule …

The Soft Power Of Dissent: The Impact Of Dissenting Opinions From The Russian Constitutional Court, Alexandra V. Orlova

Vanderbilt Journal of Transnational Law

This Article poses a question regarding the importance of judicial dissents emanating from constitutional courts. It examines the power of dissents emanating from the Russian Constitutional Court, given the fact that the Russian government has invested a significant effort in suppressing dissenting voices. The very presence of dissents in the Russian Constitutional Court poses an interesting question regarding their impact on democracy, consensus building, and civil society. This Article argues that while dissents coming from the Russian Constitutional Court may not be binding, they carry a great deal of "soft power." Judicial dissents aid in challenging commonly espoused consensus both …

The States Have Spoken: Allow Expanded Media Coverage Of The Federal Courts, Mitchell T. Galloway

Vanderbilt Journal of Entertainment & Technology Law

Since the advent of film and video recording, society has enjoyed the ability to capture the lights and sounds of moments in history. This innovation left courts to determine what place, if any, such technology should have inside the courtroom. Refusing to constrain the future capacity of this technology, the Supreme Court "punted" on this issue until a time when this technology evolved past its initial disruptive nature. Throughout the past forty-five years, the vast majority of state courts have embraced the potential of cameras in the courtroom and have created policies governing such use. In contrast, the federal judiciary …

Appeals By The Prosecution, Nancy J. King, Michael Heise

Vanderbilt Law School Faculty Publications

Scholarly and public debates about criminal appeals have largely taken place in an empiri- cal vacuum. This study builds on our prior empirical work exploring defense-initiated criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploit- ing data drawn from a recently released national sample of appeals by state prosecutors decided in 2010, as well as data from all appeals by federal prosecutors to the U.S. Courts of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of noncapital, direct appeals by prosecutors, including extensive information on crime type, claims raised, type of …

Integrating The Access To Justice Movement, Lauren Sudeall

Vanderbilt Law School Faculty Publications

Last fall, advocates of social change came together at the A2J Summit at Fordham University School of Law and discussed how to galvanize a national access to justice movement - who would it include, and what would or should it attempt to achieve? One important preliminary question we tackled was how such a movement would define "justice," and whether it would apply only to the civil justice system. Although the phrase "access to justice" is not exclusively civil in nature, more often than not it is taken to have that connotation. Lost in the interpretation is an opportunity to engage …

Practitioners' Perception Of Court-Connected Mediation In Five Regions: An Empirical Study, Shahla F. Ali

Vanderbilt Journal of Transnational Law

Courts throughout the world face the challenge of designing court mediation programs to provide opportunities for party-directed reconciliation on the one hand, while ensuring access to formal legal channels on the other. In some jurisdictions, mandated programs require initial attempts at mediation, while in others, voluntary programs encourage party-selected participation. This Article explores the attitudes and perceptions of eighty-three practitioners implementing court mediation programs in five regions in order to understand the dynamics, challenges, and lessons learned from the perspectives of those directly engaged in the work of administering, representing, and mediating civil claims. Given the highly contextual nature of …

Contingent Fee Litigation In New York City, Eric Helland, Daniel Klerman, Brendan Dowling, Alexander Kappner

Vanderbilt Law Review

Since 1957, New York courts have required contingent fee lawyers to file "closing statements" that disclose settlement amounts, lawyers' fees, an accounting of expenses, and other information. This Article provides a preliminary analysis of these data for the period 2004- 2013. Among this Article's findings are that settlement rates in New York state courts are very high (84%) relative to previous studies; that very few cases are resolved by dispositive motions; that litigated cases and settled cases have almost exactly the same average recovery; that median litigation expenses, other than attorney's fees, are 3% of gross recovery; that claims are …

Improving Access To Justice In State Courts With Platform Technology, J.J. Prescott

Vanderbilt Law Review

Access to justice often equates to access to state courts, and for millions of Americans, using state courts to resolve their disputes-often with the government-is a real challenge. Reforms are regularly proposed in the hopes of improving the situation (e.g., better legal aid), but until recently a significant part of the problem has been structural. Using state courts today for all but the simplest of legal transactions entails at the very least traveling to a courthouse and meeting with a decision maker in person and in a one-on-one setting. Even minimally effective access, therefore, requires time, transportation, and very often …