Courts Commons^™

Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn

Vanderbilt Law Review

By and large, judicial authority is a product of perceived validity. Judges lack an independent means of enforcement; they wield "no influence over either the sword or the purse," "neither force nor will." Rather, the judicial branch operates under the auspices of its legitimacy, "a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands." When the public sees the judiciary as legitimate, it accepts and adheres to its rulings even when it may perceive certain decisions to be ideologically …

Fairness, Legitimacy, And Selection Decisions In International Criminal Law, Jonathan Hafetz

Vanderbilt Journal of Transnational Law

The selection of situations and cases remains one of the most vexing challenges facing the International Criminal Court (ICC) and other international criminal tribunals. Since Nuremberg, international criminal law (ICL) has experienced significant progress in developing procedural safeguards designed to protect the fair trial rights of the accused. But it continues to lag in the fairness of its selection decisions as measured against the norm of equal application of law, whether in the disproportionate focus on certain regions (as with the ICC's focus on Africa), the application of criminal responsibility only to one side of a conflict, or the continued …

Courts Of Good And Ill Repute: Garoupa And Ginburg's Judicial Reputation: A Comparative Theory, Tracey E. George, G. Mitu Gulati

Vanderbilt Law School Faculty Publications

Professors Garoupa and Ginsburg begin their book with an unusually valuable introduction to the substantive chapters which follow. The introduction is framed by two (in)famous examples of judicial action: one that strengthened a court’s reputation and one that damaged a court’s reputation. The book opens with Chief Justice John Roberts’s 2012 Obamacare decision (pp 1–2). Roberts not only joined the five-justice majority that upheld the constitutionality of the Affordable Care Act (Obamacare), but also authored the Supreme Court’s opinion. Roberts’s policy preference, by any conventional measure, should have been to overturn Obamacare (p 1). Thus, he must have chosen to …

Finding "Tapia Error": How Circuit Courts Have Misread 'Tapia V. United States' And Shortchanged The Penological Goals Of The Sentencing Reform Act, Matt J. Gornick

Vanderbilt Law Review

The American criminal justice system is called many things; "compassionate" is usually not one of them. Yet in the course of federal criminal proceedings, a sentencing hearing allows a judge to convey compassion toward a defendant, if only to say, "I'm sorry about your situation, but this is how I must apply the law." Likewise, a defendant might throw herself on the mercy of the court in hopes that the judge exercises discretion compassionately. Mitigating factors and downward departures suggest that judges are capable of doing so. But how does a sentencing judge show compassion, as opposed to simply feeling …

The Management Of Staff By Federal Court Of Appeals Judges, Mitu Gulati, Richard A. Posner

Vanderbilt Law Review

Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have externs as well (law students working part time without pay). These staffs are essential, given judicial workloads and judges'limitations. Yet not much is known about how the judges manage their staffs. Each judge knows, of course, but judges rarely exchange information about staff management. Nor is there, to our knowledge, a literature that attempts to compare and evaluate the varieties of staff management techniques employed by federal court of appeals judges. This Essay aims to fill that gap. It is based …

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

Vanderbilt Law Review

The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution's text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …

Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew G. Ferguson

Vanderbilt Law School Faculty Publications

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature-attributes that have the …

Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle

Vanderbilt Law School Faculty Publications

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience that …

Treating Juveniles Like Juveniles: Getting Rid Of Transfer And Expanded Adult Court Jurisdiction, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off. This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished. It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law …

The Role Of Courts In "Making" Law In Japan: The Communitarian Conservatism Of Japanese Judges, John O. Haley

Vanderbilt Law School Faculty Publications

Professor Haley is an outstanding international and comparative law scholars, widely credited with having popularized Japanese legal studies in the United States. In 1969, Haley received a fellowship from the University of Washington and was in one of the first classes to graduate from the Asian Law Program, now, the Asian Law Center. After working for several years in law firms in Japan, he joined the law faculty at the University of Washington, where he remained for nearly twenty-six years during which time he directed the Asian and Comparative Law Program. In June 2012, Professor Haley was awarded The Order …

International Law In Domestic Courts And The Jurisdictional Immunities Of The State Case, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

National court litigation in Greece and Italy prompted Germany to bring suit before the international Court of Justice (‘ICJ’), resulting in the Jurisdictional Immunities of the State judgment. The history of that litigation, as well as the ICJ’s judgment itself, raise two questions about the relationship between executive branches and courts. First, if national court decisions conflict with the views of the forum state’s executive branch, which controls for the purpose of determining state practice in customary international law? Secondly, are national courts more likely to produce ‘outlier’ decisions that challenge or undermine existing international law when the forum state’s …

Hazy Shades Of Winter: Resolving The Circuit Split Over Preliminary Injunctions, Rachel A. Weisshaar

Vanderbilt Law Review

The preliminary injunction is an extraordinarily powerful remedy. After only an initial hearing, a court can command the nonmovant to perform-or to refrain from performing-an action, enforceable by criminal contempt. This supposedly temporary form of relief is often, in practical terms, dispositive of the case because the preliminary injunction remains in effect unless and until a subsequent decision vacates it.

On The Efficient Deployment Of Rules And Standards To Define Federal Jurisdiction, Jonathan R. Nash

Vanderbilt Law Review

Congress and the federal courts have traditionally adopted rules, as opposed to standards, to establish the boundaries of federal district court jurisdiction. More recently, the Supreme Court has strayed from this path in two areas: federal question jurisdiction and admiralty jurisdiction. Commentators have generally supported the use of discretion in determining federal question jurisdiction, but they have not recognized the relationship to the rule-standard distinction, nor more importantly have they considered the importance of where discretion enters the jurisdictional calculus. This Article argues that predictability and efficiency make it normatively desirable to have rules predominate jurisdictional boundaries and thus to …

The Monster Under The Bed: The Imaginary Circuit Split And The Nightmares Created In The Special Needs Doctrine's Application To Child Abuse, Adam Pie

Vanderbilt Law Review

Kessler Wilkerson was only two years old on the morning of October 16, 1976. At approximately 10:30 a.m., neighbors heard loud noises emanating from inside the Wilkerson trailer, alongside the sound of Kessler's crying and his father's screams. Two hours later, the now-quiet father delivered his two-year-old son to the emergency medical technicians. Despite their attempts to resuscitate the boy en route to the hospital, Kessler was pronounced dead on arrival. Discoveries in the hours and days that followed made Kessler's death even worse. Kessler's autopsy revealed "multiple bruises all over the child's body and.., significant bleeding and a deep …

A Social Psychology Model Of The Perceived Legitimacy Of International Criminal Courts, Stuart Ford

Vanderbilt Journal of Transnational Law

There is a large body of literature arguing that positive perceived legitimacy is a critical factor in the success of international criminal courts, and that courts can be engineered in such a way that they will be positively perceived by adjusting factors such as their institutional structure and outreach efforts. But in many situations the perceived legitimacy of international criminal courts has almost nothing to do with these factors. This Article takes the latest research in social psychology and applies it to survey data about perceptions of international criminal courts in order to understand how affected populations form attitudes about …

Lifting The Veil Of Secrecy: Judicial Review Of Administrative Detentions In The Israeli Supreme Court, Shiri Krebs

Vanderbilt Journal of Transnational Law

All around the world, hundreds of individuals are constantly subjected to administrative detentions designed to prevent them from committing future atrocities. Generally, the main protection against arbitrary and unjustified administrative detentions is judicial review. Nonetheless, judicial review of administrative detention proceedings suffers from inherent difficulties and is typically based on ex parte proceedings and secret evidence. In spite of these difficulties and based on a few renowned cases, it is widely accepted in the scholarly debates that the Israeli judicial review model is robust and effective. Therefore, prominent international law scholars often recommend the adoption of this model in various …

Widening Batson's Net To Ensnare More Than The Unapologetically Bigoted Or Painfully Unimaginative Attorney, Jeffrey Bellin, Junichi P. Semitsu

Vanderbilt Law School Faculty Publications

In Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of un- earthing racially discriminatory peremptory strikes. Yet the Court left in place the talismanic protection available to those who might misuse the peremptory challenge-the unbounded collection of justifications that courts, including the Supreme Court, accept as "race neutral." To evaluate the Court's continuing faith in Batson, we conducted a survey of all federal published and unpublished judicial decisions issued in this first decade of the new millennium (2000-2009) …

The New Old Legal Realsim, Tracey E. George, Mitu Gulati, Ann C. Mcginley

Vanderbilt Law School Faculty Publications

Judges produce opinions for numerous purposes. A judicial opinion decides a case and informs the parties whether they won or lost. But in a common law system, the most important purpose of the opinion, particularly the appellate opinion, is to educate prospective litigants, lawyers, and lower court judges about the law: what it is and how it applies to a specific set of facts. Without this purpose, courts could more quickly and efficiently issue one-sentence rulings rather than set forth reasons. By issuing opinions, courts give actors a means of evaluating whether their actions are within the bounds of law. …

Elections And Government Formation In Iraq: An Analysis Of The Judiciary's Role, Charles P. Trumbull Iv, Julie B. Martin

Vanderbilt Journal of Transnational Law

In 2005, the people of Iraq ratified a permanent Constitution, a significant milestone in the journey from Saddam Hussein's authoritarian rule to democratic governance. Among the Constitution's fundamental guarantees are the separation and balance of powers, the selection of Parliament through regular and periodic popular election, and an independent judiciary empowered as the authority on constitutional interpretation. Iraq's commitment to democracy and the Constitution was put to the test five years later with the first parliamentary election under the new Constitution. The run-up to the elections was marred by political disputes, violence, and legal challenges, as Iraqis argued over controversial …

The Dog That Caught The Car: Observations On The Past, Present, And Future Approaches Of The Office Of The Legal Adviser To Official Acts Immnunities, John B. Bellinger Iii

Vanderbilt Journal of Transnational Law

The Supreme Court's decision in Samantar v. Yousuf vindicated the position of the State Department's Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by common law and customary international law as articulated by the Executive Branch, rather than by the Foreign Sovereign Immunities Act of 1976. But the decision will place a burden on the Office of the Legal Adviser, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the United States. The …

Foreign Official Immunity After Samantar, Chimene I. Keitner

Vanderbilt Journal of Transnational Law

In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSLA) does not govern the immunity of foreign officials from legal proceedings in U.S. courts. Part I of this symposium contribution seeks to put in sharper focus exactly what is, and what is not, in dispute following Samantar. Part II presents three challenges to common assumptions about conduct-based immunity, which I consider under the headings of personal responsibility, penalties, and presence. Under the heading of personal responsibility, I emphasize that state responsibility and individual responsibility are not mutually exclusive. Under penalties, I argue that …

Head Of State Immunity As Sole Executive Lawmaking, Lewis S. Yelin

Vanderbilt Journal of Transnational Law

At the request of the Executive Branch, courts routinely dismiss private suits against sitting heads of foreign states. Congress has never delegated authority to the Executive Branch to identify principles governing head of state immunity. The courts' practice thus appears inconsistent with the conventional view that the Executive Branch lacks authority to affect private rights unless authorized by Congress to do so. This Article argues that the Executive Branch's practice of determining head of state immunity is an example of sole executive lawmaking, deriving from the President's constitutional responsibility as the only authorized representative of the United States in its …

Adaptive Management In The Courts, J.B. Ruhl, Robert Fischman

Vanderbilt Law School Faculty Publications

Adaptive management has become the tonic of natural resources policy. With its core idea of "learning while doing," adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending "adaptive" in front of "management" somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question, with …

Cooperative Interbranch Federalism: Certification Of State-Law Questions By Federal Agencies, Verity Winship

Vanderbilt Law Review

When an unresolved state-law question arises in federal court, the court may certify it to the relevant state court. The practice of certification from one court to another has been widely adopted and has been touted as "help[ing] build a cooperative judicial federalism." This Article proposes that states promote cooperative interbranch federalism by allowing federal agencies to certify unresolved state-law questions to state courts. It draws on Delaware's recent expansion of potential certifying entities to the Securities and Exchange Commission to argue that this innovation should be extended to other states and other federal agencies. Certification from federal agencies to …

"Objection: Your Honor Is Being Unreasonable!"--Law And Policy Opposing The Federal Sentencing Order Objection Requirement, Benjamin K. Raybin

Vanderbilt Law Review

"I think you ought to object, counselor," boomed the judge.' One could not help but to be taken aback: this instruction was not directed towards a pro se defendant, nor was it addressing an action by an opposing party. Instead, the judge had actually suggested-with a straight face and a hint of irony-that an attorney object to the sentence the judge had just imposed. Unlike the attorney, the judge had been following the development of a quirk in the circuit's sentencing law. In United States v. Vonner, the Sixth Circuit had recently held that a party must object to a …

A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn

Vanderbilt Journal of Transnational Law

Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system. This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic …

The End Of Objector Blackmail?, Brian T. Fitzpatrick

Vanderbilt Law Review

For many years, courts and commentators have been concerned about a phenomenon in class action litigation referred to as objector "blackmail." The term "blackmail" is used figuratively rather than literally; so-called objector "blackmail" is simply a specific application of the general concern with legal regimes that permit one or more individuals to "hold out" and disrupt collective action. The holdout problem in class action litigation stems from the following series of events: When a class action is settled, class members who do not like the proposed settlement are permitted to file objections with the federal district court that must approve …

A Uniform System For The Enforceability Of Forum Selection Clauses In Federal Courts, Ryan T. Holt

Vanderbilt Law Review

In the early 1980s, a successful and ambitious Alabama businessman named Walter H. Stewart purchased a failing local copying business. Through the Stewart Organization, a corporation he controlled, Stewart sought to steer this troubled business to the realm of profitability. To do so, he entered into a dealership contract with Ricoh Corporation, a national manufacturer of copy machines that conducted its operations in New York. Unfortunately, their relationship soured. Stewart sued Ricoh in an Alabama federal district court, basing jurisdiction on diversity of citizenship. Ricoh did not want to litigate in Alabama, and the original dealership contract seemed to provide …

Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann

Vanderbilt Law School Faculty Publications

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that …

Agency Statutory Interpretation And Policymaking Form, Kevin M. Stack

Vanderbilt Law School Faculty Publications

In this short symposium contribution, I take up this invitation to examine the relevance of the agency's policymaking form to its approach to statutory interpretation. The core point I wish to advance is a relatively basic one--namely, that an agency's approach to statutory interpretation is in part a function of the policymaking form through which it acts. My strategy is to examine two of the most important policymaking forms--notice-and-comment rulemaking and formal adjudication--and to argue that the considerations that distinguish agency and judicial interpretation have a markedly different place in these two agency policymaking forms. For purposes of exposition, I …