Courts Commons^™

Uncertainty In Business Judgment: How A Divide Between Delaware's Judiciary And Legislature Has Changed Corporate Law, Andrea Safran

William & Mary Business Law Review

In response to controversial Chancery Court decisions, the Delaware Legislature rushed to amend the Delaware Code in order to reinforce the business judgment rule. As the foremost business court in the nation, every Chancery Court decision is thoroughly scrutinized by the corporate world, so when the court goes against normal business practices, corporations grow wary in their trust of the State. Thus ensues a scramble by the State to pass legislation that will protect corporate interests. With these recent decisions, however, the Chancery Court may have lost its footing, and Delaware could soon see a mass corporate exodus with the …

Article Iii's Constraints On The Legislative Power, Elizabeth Earle Beske

William & Mary Law Review

Article III’s heightened concreteness standard for statutory harms takes federal judges deep into legislative terrain, jeopardizing statutory damage provisions and confining Congress to post hoc solutions rather than preemptive strikes. The Supreme Court has insisted that creating a cause of action is a legislative function. At the same time, its recent standing cases instruct lower federal courts to permit suit on statutory injuries only when they find actual harm that bears a tight connection to injuries recognized at common law. This new harm requirement rests uneasily with countless statutes featuring statutory damage provisions that are in place precisely because damages …

The Brady Materiality Standard, Brandon L. Garrett, Adam M. Gershowitz

Faculty Publications

The Brady doctrine requires prosecutors to disclose all favorable and material evidence to the defense. To effectuate that rule, the U.S. Supreme Court has defined materiality as a “reasonable probability” that the evidence would have affected the outcome at trial. But apart from that definition, the Court has resisted offering any further guidance to lower courts. While far too little is known about how Brady materiality claims are actually adjudicated, there is strong evidence that courts often reject Brady claims involving withheld evidence on the grounds that the evidence was not significant enough to be material.

To examine how Brady …

Medical Device Dangers: Choosing Ignorance In The Courts And At The Fda, George Horvath

William & Mary Law Review

Medical devices save lives and improve well-being but have caused as many as 83,000 deaths and 1.7 million injuries in a recent decade. Decisions of critical importance—patients’ decisions whether to have a device implanted, doctors’ decisions about which device to use, insurers’ decisions whether to reimburse for those devices—depend on information about risk that is provided by manufacturers. But producing this information is costly. Injured patients, through private lawsuits under state products liability theories, can incentivize device manufacturers to incur these costs and to produce and disclose information about device risk. Unfortunately, courts are making it increasingly unlikely that this …

Is History Precedent?, Allison Orr Larsen

Faculty Publications

It has been just over three years since the Supreme Court instructed lower courts to evaluate Second Amendment challenges by examining history and tradition. And it is no secret that the courts have struggled. This Article tackles a phenomenon that is born of that struggle. Overwhelmed by the task of evaluating historical claims, lower courts instead are turning to other judges as authorities on history. They are using what I call in this Article “historical precedents”—meaning language about history from an older decision that the subsequent judge then treats as authority, not as part of a legal rule but for …

The Judicial Voice On The Courts Of Appeals, Allison Orr Larsen, Neal Devins

Faculty Publications

The judicial voice on an appellate court typically speaks in the collective, so when a judge chooses to go solo—either in a dissent or a concurrence—that act deserves a close look. Separate opinions on the U.S. Supreme Court are common because the Justices have strong incentives to articulate a distinctive personal jurisprudence. But lower court judges have always been more reluctant to write separately, and for good reason. The institutional design and longstanding practices of the U.S. courts of appeals are very different from the Supreme Court: Lower appellate court judges are bound by precedent in a different way, rarely …

To The Hague And Beyond: The Shifting Terrain Of International Criminal Justice, Leila Nadya Sadat, Valerie Oosterveld, Sharon Weil, Nancy Combs, David Crane

Faculty Publications

Panel of international criminal law experts speak about the areas in which they work.

Killing Through Their Kids, Dyllan Moreno Taxman

William & Mary Law Review

In early 2024, James and Jennifer Crumbley were sentenced to over a decade in prison after their son, Ethan, shot and killed four classmates at Oxford High School in Michigan. The Crumbley parents incurred manslaughter liability by ignoring Ethan’s deteriorating mental state, gifting him the murder weapon, and failing to act on concerns about Ethan’s behavior on the day of the shooting. The Crumbleys were the first parents of a school shooter to be convicted of a homicide in American history. This Article suggests they will be far from the last. Indeed, less than one year after the Crumbley convictions, …

The Jurisprudence Of Constitutional Entitlement, David Schraub

William & Mary Bill of Rights Journal

Lawyers are accustomed to thinking of constitutional law as a familiar binary: Either a given governmental policy or practice is constitutional and therefore permitted, or unconstitutional and forbidden. But not all constitutional laws are created equal. A state practice which may be constitutional in concept (such as the death penalty) may, in some or many applications, violate specific constitutional rules and become impermissible. When a policy which has been affirmed to be constitutional in general repeatedly runs up against problems as-applied, a legal tension emerges: can the state implement the policy or not? This dilemma illuminates a third constitutional category: …

Laboratories Of Judicial Ethics: A Comparative Analysis Of Judicial Conduct Commissions In Tennessee, Rhode Island, And North Carolina, And Their Implications For Regulating The U.S. Supreme Court, Johnny Galloway

William & Mary Bill of Rights Journal

It is hardly necessary to recite the recent ethics controversies that have embroiled the Supreme Court. In the last several years, several revelations have rocked the Supreme Court and led members of Congress, President Joe Biden, and the public to question the Court’s ethical standards and impartiality. Whether the Court’s partiality and imprudence are real or perceived, recent developments like these have spurred calls for a binding code of ethics to be either adopted voluntarily by the Court or imposed involuntarily by congressional action. Given the fierce debate over ethics regulation of the U.S. Supreme Court, it is noteworthy that …

Pleasure & Pain In Intellectual Property, Andrew Gilden

William & Mary Law Review

Intellectual property produces pleasure. IP laws incentivize investment in popular culture, helping to ensure the viability of entertainment industries and the steady production of our favorite shows, cherished brands, and beloved celebrities. Across IP-heavy industries, creators cite the joy of writing, composing, coding, and experimenting as a motivation for countless hours in the office, studio, or lab. Nonetheless, in a broad range of settings, and across several areas of IP, courts have responded with hostility to personal accounts of pleasure in IP disputes. When a defendant admits to using IP because they are fans of the plaintiff, or because they …

Camera-Shy Courtrooms: Balancing Extraordinary Transparency And The Appearance Of Justice, Caroline Olsen

William & Mary Bill of Rights Journal

High-profile trials alert us to the dissonance between transparency and accountability in the federal judiciary. This Note will explore this tension and argue that when policymakers respond to calls for “extraordinary transparency,” transparency should be subordinate to fairness. Part I will discuss the principles underlying public adjudication and how, through various constitutional challenges, the limits of public access have changed over time. Analyzing modern high-profile trials, Part II will demonstrate how those very principles are inadequately protected in jurisdictions that allow unrestrained public access to the courtroom. Part III will describe how transparency, when conflated with accountability, threatens procedural due …

The Longer-Term Impact Of Civil Justice Reform: A 10-Year Retrospective On Utah Civil Discovery Reform, Paula Hannaford-Agor, Miriam Hamilton

Faculty Publications

In 2021, the National Center for State Courts (NCSC) obtained grant funding from State Justice Institute to undertake a retrospective study of the Utah civil justice reforms. The new study replicated some of the analyses from the 2015 study to compare case characteristics and outcomes against the post-implementation data extracted for the 2015 study. In addition to examining the impact on case characteristics and outcomes, an objective of the new study was to examine the impact of the Rule 26 revisions on practitioner behavior, which is less easily captured in case filings. To do so, NCSC convened a project advisory …

This Is An Intervention: The Role Of Federal Courts In Suppressing Non-Compete Agreements, Anya Y. Karaman

William & Mary Law Review

Part I of this Note will provide background information on noncompete agreements, focusing primarily on those executed in conjunction with employment. Part I will also provide background on the FTC’s rule and the preliminary injunction analysis. Part II will explore how different jurisdictions treat the public interest factor when analyzing whether to enforce a non-compete. Part III will examine how the FTC’s rule has already impacted the public interest analysis in court. Finally, Part IV will address potential challenges to this proposal and argue why federal courts—as opposed to state legislatures, for example—are in the best position to protect workers …

Understanding The Mechanisms Of Interpretative Change, Aaron-Andrew P. Bruhl

Faculty Publications

Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In federal statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are underway. There has been a gradual, decades-long shift away from intentionalist tools like legislative history. In addition, as the culmination of a series of smaller steps, the Supreme Court has just reshaped the doctrine governing deference to agency interpretations, a move that will require years of further clarification. And, although this shift is still taking shape, it appears that some …

Rebuilding The Foundation: Addressing A Crisis In Juror Participation, Paula Hannaford-Agor

Faculty Publications

Courts are experiencing dramatic decreases in juror response and appearance rates, threatening the future of jury trials and the legitimacy of the American justice system. Effective strategies exist to reverse this trend, if justice system stakeholders are willing to employ them.

Preserving The Future Of Juries And Jury Trials, Paula Hannaford-Agor

Faculty Publications

Amid rapid technological and social change, a new initiative explores how judges, court staff, trial lawyers, and other justice system stakeholders can preserve juries and jury trials, strengthen public trust, and remain a pillar of democracy.

In 2024, the National Center for State Courts (NCSC) launched Preserving the Future of Juries and Jury Trials, a project that built on Just Horizons’ methodological foundation of strategic foresight and its premise that data-driven public services and sociopolitical discord have the greatest potential impact on court operations. For this project, NCSC imagined how these trends would affect juries and jury trials in each …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

Preserving The Future Of Juries And Jury Trials, Paula Hannaford-Agor, Hope Forbush, Miriam Hamilton, Jawwaad Johnson, Morgan Moffett

Faculty Publications

To preserve the future of juries and jury trials, the National Center for State Courts (NCSC) convened a meeting of representatives from a broad array of justice system stakeholders as a project under the Justice for All Reauthorization Act (JFARA). To frame the stakeholder discussions, NCSC employed strategic foresight, a methodological approach designed to explore a range of possible futures of juries and jury trials within the American justice system as a vehicle for identifying critical vulnerabilities within the current jury system and proposing targeted strategies to preserve and strengthen jury trials. Critical vulnerabilities are those areas of weakness that …

Law And Equity On Appeal, Aaron-Andrew P. Bruhl

Faculty Publications

Most lawyers know that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity, but fewer are familiar with the development of federal appellate procedure. Here too there is a story of the merger of two distinct systems. At common law, a reviewing court examined the record for errors of law after the final trial judgment. In the equity tradition, an appeal was a rehearing of the law and the facts that aimed at achieving justice and did not need to await a final judgment. Unlike the story of federal trial procedure, …

The Judicial Grassroots Of The "Arbitration Revolution", Tamar Meshel

William & Mary Business Law Review

The “arbitration revolution”—the meteoric rise in the use of arbitration in the United States—is commonly imputed to the Supreme Court’s unilateral and ideologically driven expansion of the Federal Arbitration Act (FAA). The portrayal of the FAA’s evolution as a campaign launched by a Supreme Court that is out of touch with society and with the judicial system over which it presides usefully serves to delegitimize both this one-hundred year-old statute and arbitration more generally. This Article argues that the popular description of the Supreme Court as the sole instigator of the “arbitration revolution” is misleading because it conveniently ignores a …

Fair Cross Section And Tribal Jury Composition: Vawa 2022 Tribal Criminal Jurisdiction Series, Paula Hannaford-Agor, Steve Aycock

Faculty Publications

The Violence Against Women Reauthorization Act of 2013 (VAWA 2013) amended the Indian Civil Rights Act (ICRA) to ensure that non-Indian criminal defendants in Tribal courts have the right to a trial by an impartial jury that is drawn from sources that 1) “reflect a fair cross section of the community” and 2) “do not systematically exclude any distinctive group in the community, including non-Indians.” This requirement applies when a non-Indian who is criminally prosecuted in Tribal court faces possible imprisonment.

The implementation of these jury provisions has been a topic of discussion among the Inter-Tribal Working Group on Special …

2023 State-Of-The-States Survey Of Jury Improvement Efforts, Paula Hannaford-Agor, Morgan Moffett, Breanna Bell

Faculty Publications

In 2007, the National Center for State Courts (NCSC) published findings from the State-of-the-States Survey of Jury Improvement Efforts (SOS Survey), the first comprehensive snapshot of jury operations and jury trial practices in the United States. The 2007 SOS Survey featured three discrete components: a statewide survey documenting legal infrastructure for juries and jury trials in each state; a local court survey, which documented jury operations at the county-level in state courts; and a judge & lawyer survey, which asked respondents to describe the characteristics and procedures employed in their most recent jury trial.

By the mid-2010s, NCSC began receiving …

The Constitutional Court Of Kosovo In Comparative Perspective, Christie S. Warren

Faculty Publications

...presented at the Solemn Ceremony of the 14th Judicial Year of the Constitutional Court, held on 23 October 2023 in Prishtina and on the occasion of the International Conference “Contribution of Constitutional Courts in the protection and strengthening of the fundamental values of democracy, the rule of law and fundamental human rights and freedoms”, organized on 24 October 2023 in Prishtina.

The Constitutional Court Of Indonesia As A Post-Conflict Institution, Christie S. Warren

Faculty Publications

In post-conflict settings, constitutional courts have important roles to play despite complex and often competing challenges they face to institutionalize their legitimacy and entrench the rule of law while attempting to build bridges from conflict to peace. By processing political conflict through legal means, constitutional courts can shift the tenor of public dialogue and provide a less inflammatory platform for analyzing conflicts that have divided societies. This article analyzes two seminal cases decided by the Constitutional Court of Indonesia in the aftermath of post- Suharto conflict and finds that despite its young age, the Court addressed lustration issues and a …

Standing Without Injury, Jonathan Adler

Faculty Publications

This Article seeks to assess Judge Newsom’s proposed injury-less approach to standing in federal court. Part I of this Article provides a brief overview of current standing doctrine, the requirements of standing consolidated in Lujan, and how these requirements have been interpreted and applied by the Supreme Court. Part II describes Judge Newsom’s critique of contemporary standing doctrine and outlines the two primary components of his proposed alternative: 1) elimination of the standing requirement in favor of a simple cause-of-action requirement and 2) recognition of an external constraint on standing derived from Article II, rather than Article III.

Part …

Aals Federal Courts Section Newsletter, Katherine Mims Crocker, Celestine Richards Mcconville

Popular Media

No abstract provided.

Use Of Natural Language Processing (Nlp) In Civil Case Management: A Report On Three Proof Of Concept Projects, Paula Hannaford-Agor, Jannet Okazaki

Faculty Publications

In 2016, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) endorsed recommendations to leverage technology to improve civil case management. In particular, Natural Language Processing (NLP) and related tools could be used to support two areas of civil case processing: sorting cases at filing based on the anticipated level of judicial involvement in case management, and confirming that essential procedural requirements have been satisfied before entering final judgments in cases.

To explore the feasibility of NLP to support court operations in these two areas, the National Center for State Courts (NCSC) designed three distinct …

Brief Of Law Professors As Amici Curiae In Support Of Plaintiff-Appellee, Evan J. Criddle

Briefs

No abstract provided.

Securities And Exchange Commission Vs. Kim Kardashian, Cryptocurrencies And The "Major Questions Doctrine", Jerry W. Markham

William & Mary Business Law Review

The SEC has brought some highly publicized enforcement actions against Kim Kardashian and other celebrity social media influencers who received undisclosed payments for their endorsement of cryptocurrencies. This Article describes those cases and analyzes whether the SEC exceeds its authority under the Constitutional “major questions doctrine” recently applied by the Supreme Court in West Virginia v. EPA. That doctrine prohibits a federal agency from regulating activities that raise a major question that Congress, rather than the agency, must resolve. Such a question is one in which there is major political and economic interest and over which the agency has …