Courts Commons^™

Following Lower-Court Precedent, Aaron-Andrew P. Bruhl

Faculty Publications

This Article examines the role of lower-court precedent in the US Supreme Court’s decisions. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, this Article analyzes a variety of potential reasons …

Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski

Faculty Publications

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress’s expectations regarding statutory interpretation, we show that existing knowledge of Congress’s expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover, Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of statutory interpretation …

Utah: Impact Of The Revisions To Rule 26 On Discovery Practice In The Utah District Courts, Final Report, Paula Hannaford-Agor, Cynthia G. Lee

Faculty Publications

On November 1, 2011, the Utah Supreme Court implemented a set of revisions to Rule 26 and Rule 26.1 of the Utah Rules of Civil Procedure designed to address concerns regarding the scope and cost of discovery in civil cases. Funded in part by a grant from the U.S. Department of Justice, Bureau of Justice Assistance, the National Center for State Courts (NCSC) conducted an empirical evaluation of the short-term and long-term impacts of the Rule 26 revisions. The evaluation consists of five components: an analysis of trends in aggregate filings; a comparison of case-level characteristics for cases filed before …

Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl

Faculty Publications

A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of cases resolving conflicts, …

Recognition And Enforcement Of Foreign Judgments In U.S. Courts: Problems And Possibilities, S. I. Strong

Faculty Publications

The United States is currently facing a period of intense interest in transnational litigation. Not only has the U.S. Supreme Court become increasingly active in this field, but the American Law Institute (ALI) is also in the process of revising and drafting a number of Restatements concerning international law. The United States also recently signed The Hague Convention on Choice of Court Agreements (COCA), although the instrument has not yet been ratified.

The United States can and should reconsider U.S. law concerning the recognition and enforcement of foreign judgments immediately and unilaterally. Although this may appear to be a daunting …

The U.S. Supreme Court Fellows Program; The Opportunity Of A Lifetime, S. I. Strong

Faculty Publications

One reason why the Supreme Court Fellowship is one of the best-kept secrets in Washington, D.C., is its size. Unlike the White House Fellows program, which invites 12 people to join its ranks each year, and the Congressional Fellows program, which has over 30 participants annually, the Supreme Court accepts only four extremely talented individuals into its Fellows program each year. Every fall, these fortunate few begin a 12-month journey that offers them an unparalleled opportunity to observe and participate in the work of the federal judiciary at the highest levels.

Factual Precedents, Allison Orr Larsen

Faculty Publications

Lawyers and judges speak to each other in a language of precedents—decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I …

New Hampshire: Impact Of The Proportional Discovery/Automatic Disclosure (Pad) Pilot Rules, Paula Hannaford-Agor, Nicole L. Waters, Cynthia G. Lee, Susan Keilitz

Faculty Publications

Across the nation, a growing chorus of judges, lawyers, business leaders, and consumer advocates is calling for reforms to the American civil justice system. Civil litigation, they argue, has become too time-consuming, too expensive, and too unpredictable. To address these concerns, many state and federal courts have begun to develop and implement civil justice reform efforts intended to streamline the litigation process, to minimize the potential for discovery disputes, and to expedite the fair resolution of civil cases. New Hampshire was one of the first jurisdictions to revise its rules of civil procedure with these objectives in mind. The project …

Pleading And Access To Civil Justice: A Response To Twiqbal Apologists, A. Benjamin Spencer

Faculty Publications

Professor Stephen Yeazell once wrote, ''A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions."" One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questioned whether this purported threat is more perceived than real. Indeed, this doctrinal shift has been defended in several ways …

Reverse Advisory Opinions, Neal Devins, Saikrishna B. Prakash

Faculty Publications

No abstract provided.

Bargaining Practices: Negotiating The Kampala Compromise For The International Criminal Court, Noah Weisbord

Faculty Publications

At the International Criminal Court's (ICC) Review Conference in 2010, the ICC's Assembly of States Parties (ASP) agreed upon a definition of the crime of aggression, jurisdictional conditions, and a mechanism for its entry into force (the "Kampala Compromise"). These amendments give the ICC jurisdiction to prosecute political and military leaders of states for planning, preparing, initiating, or executing illegal wars, beginning as early as January 2017.

This article explains the bargaining practices of the diplomats that gave rise to this historic development in international law. This article argues that the international-practices framework, as currently conceived, does not adequately capture …

The Mens Rea Of The Crime Of Aggression, Noah Weisbord

Faculty Publications

This article, written in commemoration of the tenth anniversary of the International Criminal Court (ICC), explores the mens rea of the crime of aggression. The definition and jurisdictional conditions of the crime of aggression was recently incorporated into the ICC’s Rome Statute, thereby reviving a crime used during the Nuremberg trials to prosecute Nazi leaders after World War II. Mens rea is an important, even central, consideration when judging whether a defendant has satisfied all of the elements of the crime of aggression.

The starting point for this exploration of the mens rea of the crime of aggression is its …

First, Do No Harm: On Addressing The Problem Of Implicit Bias In Juror Decision Making, Jennifer K. Elek, Paula Hannaford-Agor

Faculty Publications

Courts have extremely limited opportunities to educate jurors about the pernicious effects of complex psychological phenom­ena like implicit bias and how these implicit forms of bias may distort jurors' interpretation of trial evidence. This article focuses on several of these interventions and the factors that may increase or undermine their effectiveness. Most Americans are aware of the existence of explicit bias and its effects on decision making generally, but implicit bias is still a relatively new concept about which many people in the justice system are unaware. The first section of this article discusses the difference between explicit bias and …

Miranda And Its (More Rights-Protective) International Counterparts, Megan A. Fairlie

Faculty Publications

The goal of this article is to encourage the international legal community to revisit its unexamined acceptance of strategic communications. This can lead to a debate that, at a minimum, should prompt Court supporters — specifically civil society members — to think carefully before engaging in conduct that creates dangerous consequences for the ICC.

Confronting Supreme Court Fact Finding, Allison Orr Larsen

Faculty Publications

No abstract provided.

Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong

Faculty Publications

This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

Hierarchy And Heterogeneity: How To Read A Statute In A Lower Court, Aaron-Andrew P. Bruhl

Faculty Publications

Is statutory interpretation an activity that all courts should perform the same way? Courts and commentators implicitly so conclude. I believe that conclusion is wrong. Statutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court. The U.S. Supreme Court is not the model all other courts should emulate.

I identify three kinds of institutional differences between courts that bear on which interpretive methods are appropriate: (1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic pedigree, particularly as reflected …

Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben

Faculty Publications

The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Publications

This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …

The Evolution Of The Summary Trial: A Flexible Tool To Meet A Variety Of Needs, Paula Hannaford-Agor, Nicole L. Waters

Faculty Publications

Are summary jury trials a viable forum for dispute resolution? The National Center for State Courts studied summary trials in six state courts to understand how these programs work and to determine the benefits and detriments of this approach to dispute resolution.

The Revolution In Family Law Dispute Resolution, John M. Lande

Faculty Publications

This article surveys a wide range of procedures that divorcing parties now use, including self-representation. Lawyers sometimes provide “unbundled” legal services to help parties who want to divide responsibilities for legal tasks between themselves and their lawyers. Parties often use mediation, arbitration, and private judging. Norms for lawyers’ professional roles have emphasized the importance of cooperation and some lawyers offer “planned early negotiation” processes such as Collaborative and Cooperative Law. Family courts engage in a wide range of activities beyond traditional litigation and adjudication. Many courts manage or mandate parent education and services related to domestic violence. Courts regularly appoint …

Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg

Faculty Publications

Using the example of a recent major terrorism prosecution, this article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation …

Assessment Of The Jury System For The Ninth Judicial Circuit Court, Michigan, Paula Hannaford-Agor, Daniel J. Hall

Faculty Publications

Under a contract between the Ninth Judicial Circuit Court of Michigan and the National Center for State Courts (NCSC), the NCSC Center for Jury Studies conducted an assessment of jury operations in the circuit and district courts, particularly focused on the extent to which jury pools in those respective courts reflect a fair cross section of the community, to identify factors that may affect the demographic composition of the jury pool, and to make recommendations to improve representation as necessary. The Ninth Judicial Circuit Court employs a one-step process to summon and qualify jurors for the countywide circuit court in …

The Roles Of Attorneys As Courtroom Experts: Revisiting The Conventional Limitations And Their Exceptions, David S. Caudill

Faculty Publications

This Article examines whether attorneys should be allowed to testify as legal experts, especially in the legal malpractice context. This Article starts by addressing the unclear distinction between questions of law and fact and reviews several recent cases that prohibited expert legal testimony. Next, this Article addresses some general exceptions to the prohibition against expert legal testimony, such as questions of complex and uncertain law. Finally, this Article examines the use of legal experts in legal malpractice cases.

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …

Africa And The International Criminal Court: Collision Course Or Cooperation?, Charles Chernor Jalloh

Faculty Publications

The relationship between Africa and the International Criminal Court (ICC) was cordial for many years. However, since the decisions of the United Nations Security Council to invoke its special powers to impose the Court on Sudan and Libya, African States acting through their regional body - the African Union - have adopted numerous resolutions claiming that the ICC maybe impeding, rather than assisting, their efforts to restore peace in several ongoing conflicts and transitional situations on the continent. In this invited lecture, given as the first RJR Distinguished Visiting Professor Lecture at North Carolina Central University School of Law in …

Hybridizing Jurisdiction, Scott Dodson

Faculty Publications

Federal jurisdiction – the “power” of the court – is seen as something separate and unique. As such, it has a litany of special effects that define jurisdictionality as the antipode of nonjurisdictionality. The resulting conceptualization is that jurisdictionality and nonjurisdictionality occupy mutually exclusive theoretical and doctrinal space. In a recent Article in Stanford Law Review, I refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by explaining that nonjurisdictional rules can be “hybridized” with any – or even all – of the attributes of jurisdictionality.

This Article drops the other shoe. Jurisdictional rules can be hybridized, too, and in myriad …

Back To The Drawing Board: Reexamining Accepted Criteria For Regional Structure Of The Courts Of Appeals, Martha Dragich

Faculty Publications

This article aims to determine which of the accepted structural features of the courts of appeals are essential by demonstrating that the federal courts are designed to assure the supremacy and uniformity of federal law, and that regional organization was intended to foster, not to negate, uniformity.

The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer

Faculty Publications

Although the Constitution vests the "Judicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, both Congress and the Court have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power. Is this view fully consonant with the history and text of Article III? One possible reading of those sources suggests that the Constitution vests the full Judicial Power of the United States in the inferior federal courts, directly extending to them jurisdiction over matters that Congress …

Assessment Of Juror Utilization In The Superior Courts Of California, Paula Hannaford-Agor, Nicole L. Waters, Theresa Jones, Daniel J. Hall

Faculty Publications

Juror utilization is one of two key performance measures in jury operations. Specifically, juror utilization measures how effectively courts use the citizens who are summoned and report for jury service. It reflects both customer service and organizational efficiency aspects of jury service. In the fall of 2009, the Judicial Council of California, Administrative Office of Courts, contracted the National Center for State Courts to assist in an “Assessment of Juror Utilization in the Superior Courts of California.” The project focused on all aspects of juror utilization—panel size, trial date certainty, and summoning practices--as well as other topics related to respectful …