Courts Commons^™

Outsourcing Self-Regulation, Marsha Griggs

Washington and Lee Law Review

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private interest. By outsourcing the mechanisms that dictate admission to the bar, the legal profession has all but surrendered control of the most crucial component of its gatekeeping function to an unregulated industry that profits at …

Decisionmaking In Patent Cases At The Federal Circuit, Jason Reinecke

Washington and Lee Law Review

This Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2675 three-judge panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases and provides insight into judicial decisionmaking more broadly. And several results show that many of the worst fears that commentators have about the Federal Circuit appear overstated or untrue. …

Comment: Court Adr Analytics, Benjamin G. Davis

Washington and Lee Law Review

For the reasons in my comments below, Jordan Hicks’s note entitled Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court is a tour de force. Its content and methodology suggest a fresh approach to thinking about court-annexed Alternative Dispute Resolution (“ADR”) in general and court-annexed mandatory nonbinding arbitration programs in particular. The meticulous analysis of three different eras (1978–2008, 2008–2018, and 2018–present) of the program, with a focus on judicial efficiency (speed, failure rate, and prejudicial concerns), provides an important template for how this work might be expanded to look at programs in other courts …

#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez

Washington and Lee Law Review Online

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district …

The Impact Of Insulating Immigration Courts From Judicial Review On America’S New Generation Of Families, Christian Sanchez Leon

Washington and Lee Law Review

This Note could be read as another Note addressing Congress’s power to strip jurisdiction from Article III courts. Yet, when this power is exercised in the immigration context, its impact extends far beyond the realm of checks and balances. Instead, this Note is about the insulation of the Board of Immigration Appeals (“BIA”) and its unfettered ability to create, interpret, and adjudicate its own laws. Not allowing courts to review BIA decisions leaves mixed-status families vulnerable to the harsh consequences of inherently arbitrary decisions made by executive officers.

These practices go against the established common law principles of family unity. …

Declaration Of Catherine Smith: Navahine V. Dept. Of Transportation, State Of Hawai’I, Catherine Smith

Scholarly Articles

I submit this expert declaration in support of the children’s motion to maintain their September 2023 trial date so they can have their urgent constitutional rights case involving a life-sustaining climate system accorded the legal prioritization it deserves. Each day that passes without redress not only means an infringement on children’s rights but also impacts their health, safety, well-being, and the cultural lifeways and traditions of Native Hawaiian children. These harms are cumulative and compounding for the duration of the plaintiffs’ childhoods as they mature into adults. And many of the plaintiffs’ climate change-induced injuries are irreversible.

Thoughts On Law Clerk Diversity And Influence, Todd C. Peppers

Scholarly Articles

It is my great good fortune to have been asked to comment on the remarkable Article Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals by Judge Jeremy D. Fogel, Professor Mary S. Hoopes, and Justice Goodwin Liu. Drawing on a rich vein of data gathered pursuant to a carefully crafted research design and extensive interviews, the authors provide the most detailed account to date regarding the selection criteria used by federal appeals court judges to select their law clerks. The authors pay special attention to the role that diversity plays in picking …

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarly Articles

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction-stripping measures as a way for Congress to reclaim policymaking authority from the courts.

The conventional understanding is wrong. Whatever …

Amicus Curiae Brief Of Law Professor Suzette Malveaux In Support Of Plaintiff’S Opposition To Defendant Ultragenyx’S Motion To Dismiss: Lacks V. Ultragenyx Pharmaceutical, Inc., Suzette Malveaux

Scholarly Articles

Plaintiff alleges that Ultragenyx was conferred the benefit of Henrietta Lacks’s cell line, that Ultragenyx knew of this benefit, and that Ultragenyx unfairly retained the benefit without providing payment to the Lacks family. Moreover, Plaintiff contends that this wrongful conduct has been going on for years, within the three-year limitations period and beforehand. Thus, on the face of the complaint, Plaintiff’s unjust enrichment claims would be viable. Alternatively, Plaintiff may proceed on a theory that an unjust enrichment claim does not ripen until an accumulation of wrongful acts has occurred, which pushes accrual within the limitations period.

Amicus Curiae Brief Of Law Professor Suzette Malveaux In Support Of Plaintiff The Estate Of Henrietta Lacks’S Opposition To Defendant’S Motion To Dismiss Second Amended Complaint: Estate Of Henrietta Lacks V. Thermo Fisher Scientific, Inc., Suzette Malveaux

Scholarly Articles

Plaintiff alleges that Thermo Fisher was conferred the benefit of Henrietta Lacks’s cell line, that Thermo Fisher knew of this benefit, and that Thermo Fisher unfairly retained the benefit without providing payment to the Lacks family. Moreover, Plaintiff contends that this wrongful conduct has been going on for years, within the three-year limitations period and beforehand. Thus, on the face of the complaint, Plaintiff’s unjust enrichment claims would be viable. Alternatively, Plaintiff may proceed on a theory that an unjust enrichment claim does not ripen until an accumulation of wrongful acts has occurred, which pushes accrual within the limitations period.

How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joe Biden speculated that the fifty-four talented, extremely conservative, and exceptionally young, appellate court judges whom then-President Donald Trump and two relatively similar Grand Old Party (GOP) Senate majorities appointed had left the federal appeals courts “out of whack.” Problematic were the many deleterious ways in which Trump and both of the upper chamber majorities in the 115th and 116th Senate undermined the courts of appeals, which are the courts of last resort for practically all lawsuits, because the United States Supreme Court hears so few appeals. The nomination and confirmation processes which Trump …

Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck

Scholarly Articles

The core question raised by this case is whether a federal prisoner serving an unconstitutional sentence can be foreclosed from post-conviction habeas relief by the gatekeeping provisions of § 2255. The Constitution answers that question in the negative through the Suspension Clause. “[F]reedom from unlawful restraint [i]s a fundamental precept of liberty,” and the writ of habeas corpus “a vital instrument to secure that freedom.” Boumediene, 553 U.S. at 739. The importance of the common law writ was such that the Framers specified that it could be suspended only in the most exigent circumstances. U.S. Const. art. I, § …

Memorandum Of Amici Curiae Doug Rendleman & Caprice Roberts In Support Of Plaintiff: Estate Of Henrietta Lacks V. Thermo Fisher Scientific, Doug Rendleman, Caprice Roberts

Scholarly Articles

This brief addresses the law of unjust enrichment and its relationship to restitution has failed to state a valid cause of action for restitution relief. Defendant incorrectly insists that plaintiff must plead a tort to seek restitution remedies as well as Both arguments belie the basic tenets of unjust enrichment law. Simply, plaintiff may seek restitution remedies based either a separate tort nor an allegation of the lack of bona fide purchaser status is required to survive these challenges.

Using Waller To Uphold First And Sixth Amendment Rights Throughout The Covid-19 Pandemic, Maya Chaudhuri

Washington and Lee Law Review Online

In The Right to a Public Trial in the Time of COVID-19, Professor Stephen Smith argued that the COVID-19 pandemic justified an almost categorical suspension of the right to a public trial. Judges have relied on Smith’s Article to justify closure decisions made without the constitutionally required specific findings. These are part of a larger pattern of improper closure determinations, many made without fully considering alternatives to closure, since the beginning of the pandemic that threatens the rights of individuals with criminal cases and the collective rights of the public. But the Constitution has no pandemic exception, and it …

Analysis Of The Application Of The Code Of Ethics Of Judges And Jurors (2022), James Moliterno, Jemali Saiti, Ana Pavlovska-Daneva, Andrej Bozhinovski

Books and Chapters

No abstract provided.

Movement Judges, Brandon Hasbrouck

Scholarly Articles

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable …

Arthur A. Thomas: A Hero Of A Valet, Todd C. Peppers

Scholarly Articles

During his time on the Supreme Court, Justice Oliver Wendell Holmes Jr. was the beneficiary of adulation from his legal secretaries (today we refer to them as law clerks) and young legal scholars, like Felix Frankfurter and Harold Laski. While the Justice basked in the warm glow of their hero worship, he was quick to point out to them that “no man is a hero to his valet.” The phrase was not original to Holmes, although the expression sounds like it sprang from his clever mind. The underlying meaning is simple—the servant tending daily to his employer sees flaws and …

Brief Of Amici Curiae In Support Of Defendants-Appellees: Braidwood Management V. Eeoc, Suzette Malveaux

Scholarly Articles

Amici are law professors with expertise in the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure. Amici have written extensively about class action litigation, including the use of class actions in civil rights cases seeking declaratory or injunctive relief. Together, we share an interest in ensuring that the Federal Rules of Civil Procedure continue to be construed so as to ensure the “just, speedy and inexpensive determination of every action and proceeding.” FED. R. CIV. P. 1.

Brief Of Black Women Law Scholars As Amici Curiae In Support Of Respondents, Students For Fair Admissions, Inc. V. President And Fellows Of Harvard College And Univ. Of N.C., Suzette Malveaux

Scholarly Articles

Amici are Black women law scholars who, based on their professional and personal experiences, share a deeply rooted commitment to defending the legality of race-conscious admissions policies in educational institutions across the country. They submit this brief to present their unique and vital perspective on the history, constitutionality, and importance of race-conscious programs like those adopted by Harvard University and the University of North Carolina (“UNC”).

Submission Of Amicus Curiae Observations In The Case Of The Prosecutor V. Dominic Ongwen, Erin Baines, Kamari M. Clarke, Mark A. Drumbl

Scholarly Articles

The important questions laid out by the Appeals Chamber in this case highlight the need for the proper delineation and interplay between mental illness and criminal responsibility under international law. Specifically, this case represents a watershed moment for the Appeals Chamber to set a framework for adjudicating mental illness in the context of collectivized child abuse and trauma. This is especially true for former child soldiers who occupy both a victim and alleged perpetrator status.

Chief Justice John Roberts: Institutionalist Or Hubris-In-Chief?, Eric J. Segall

Washington and Lee Law Review Online

The conventional wisdom among Supreme Court scholars and commentators is that Chief Justice John Roberts is an institutionalist who cares deeply about both his personal legacy and the Supreme Court’s prestige over time. This essay challenges that belief. While the Chief certainly cares about how the Court is perceived by the public, as do most of the justices, what most defines Roberts is his hubris—not a concern for the Court’s legitimacy or even his own place in history. Across the vast landscape of constitutional law, Roberts has distorted precedent and ignored text and history to further his own policy preferences. …

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 …

How Biden Began Building Back Better The Federal Bench, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in …

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Washington and Lee Law Review Online

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …

Weaving A Broader Tapestry, Mark A. Drumbl

Scholarly Articles

This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020).

Charles Jalloh delivers a comprehensive and authoritative survey of the legacy—in law—of the Special Court for Sierra Leone (SCSL). Through compendious research and considerable personal experience, Jalloh tracks the SCSL’s jurisprudential contributions and legal footprints upon a number of doctrinal areas: child soldiering, forced marriage, immunities, personal jurisdiction, and amnesties. Jalloh also examines the SCSL’s interface with Sierra Leone’s truth commission. Indeed, the SCSL is among the few …

Recent Attacks On Judicial Independence: The Vulgar, The Systemic, And The Insidious, James E. Moliterno, Peter Čuroš

Scholarly Articles

This article offers an opening to Central and Eastern Europe (CEE) situation and attacks against the judiciary in this region since 2010. The focus is not primarily on historical path dependence like the rest of this issue. Instead, the focus aims at the nature of attacks on the judiciary. Such attacks have appeared in CEE and the US in recent years. Its interest lies in explaining similar patterns visible in the judiciaries of CEE. Particularly, it looks at the current conditions in the Czech judiciary, political interventions in Poland since 2015 and in Hungary since 2010, and undermining of trust …

Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley

Scholarly Articles

The original arguments against court packing carry less weight in the current social and constitutional era. Less weight, however, implies some validity to those concerns and within those arguments is an acknowledgement that court packing comes with some risk to governmental stability. Still, the original arguments against court packing cannot be categorized as strong in the current climate.

A better argument against court packing is simply that it is unlikely to be effective for any long-term informal constitutional change that is responsive to key social issues. Informal constitutional change is more clearly stable when it involves structural change rather than …

Politics And The Institutional Integrity Of The Icc, In The Past, Present, And Future Of The International Criminal Court (Alexander Heinze & Viviane Dittrich Eds., 2021), Shannon Fyfe

Books and Chapters

The Rome Statute of the International Criminal Court (‘Rome Statute’ and ‘ICC‘) emerged following years of interest from various governments in establishing a permanent court to prosecute perpetrators of international crimes. The treaty that eventually established the ICC was the result of inter-governmental negotiations, which were ultimately successful in large part due to the ‘tribunal fatigue’ of governments concerned by “the financial and political costs of creating ad hoc United Nations (‘UN’) criminal tribunals for the atrocities that burdened so many regions of the world”. A permanent court would “provide greater efficiencies in addressing the investigation and prosecution of atrocity …

Settled Law, G. Alexander Nunn, Alan M. Trammell

Scholarly Articles

“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful concept, even …

Blind Justice: Virginia’S Jury Sentencing Scheme And Impermissible Burdens On A Defendant’S Right To A Jury Trial, Mitchell E. Mccloy

Washington and Lee Law Review

This Note argues that Virginia’s mandatory jury sentencing scheme, which bars juries from reviewing state sentencing guidelines, impermissibly burdens a defendant’s Sixth Amendment right to a jury trial. By analyzing both judge and jury sentencing guidelines compliance rates from the past twenty-five years, this Note demonstrates that in Virginia, a defendant has a significantly higher chance of receiving a harsher sentence after a jury trial than after a bench trial or a guilty plea. Given that judges rarely modify jury sentences, the defendant is effectively left with a choice between two different sentences before plea negotiations can even begin.

Because …