Courts Commons^™

After The Flood: The Legacy Of The "Surge" Of Federal Immigration Appeals, Stacy Caplow

Faculty Scholarship

No abstract provided.

Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young

Faculty Scholarship

No abstract provided.

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey

Faculty Scholarship

Jonathan Remy Nash's article, On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction, bravely tackles and creatively merges-the dual debates over rules versus standards and the ideal contours of federal jurisdiction.' He proposes a revised regime in which rules define jurisdictional boundaries at the front end, while standards "migrate" into a discretionary abstention phase at the back end.² This realignment, Nash argues, optimizes efficiency and predictability by placing a bright-line rule at the jurisdictional threshold, while promoting federalism by establishing a safety net that applies standards to claims that cross the threshold. ³ In this …

Clarity And Clarification: Grable Federal Questions In The Eyes Of Their Beholders, Elizabeth Mccuskey

Faculty Scholarship

Jurists and commentators have repeated for centuries the refrain that jurisdictional rules should be clear.' Behind this mantra is the idea that clearly designed jurisdictional rules should enable trial courts to apply the law more easily and therefore allow litigants to predict more accurately how trial courts will rule^.2 The mantra's ultimate goal is efficiency-that trial courts not labor too long on jurisdiction and, most important, that litigants can accurately predict the correct forum and choose to spend their money litigating the merits of their claim, rather than where it will be heard. Jurisdictional clarity largely is devoted …

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Faculty Scholarship

A significant and growing portion of the U.S. population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The …

Courthouse Iconography And Chayesian Judical Practice, William H. Simon

Faculty Scholarship

Judith Resnik and Dennis Curtis emphasize in Representing Justice that the traditional iconography of courthouses is incongruent with the current practices of the institutions that inhabit them. The key elements of traditional iconography – the blindfolded, scale-balancing Justitia and the courtroom configured for the trial – connote adjudication. Yet, the fraction of judicial work that involves deciding cases on the merits or conducting trials has decreased dramatically. Most judicial work today is basically managerial.

We could reduce this incongruity, on the one hand, by reviving the practical adjudicatory focus of the past or, on the other, by revising the iconography …

Judicial Decision Making In A World Of Natural Law And Natural Rights, George C. Christie

Faculty Scholarship

This article was my contribution to a symposium celebrating the achievements of John Finnis held at the Villanova University School of Law. Finnis’ greatest work is his Natural Law and Natural Rights. I agree with Finnis’ rejection of an approach to natural law which focuses on the notion of natural rights. Finnis’ approach instead focuses on a natural law that is based on the idea that there are certain basic human goods such as the search for knowledge, the maintenance of life, the sharing of fellowship with other human beings, the capacity to enjoy aesthetic experiences, and the exercise …

Slavery In The United States: Persons Or Property?, Paul Finkelman

Faculty Scholarship

No abstract provided.

The New Federal Circuit Mandamus, Paul Gugliuzza

Faculty Scholarship

This Article explores an ongoing revolution in the mandamus jurisprudence of the U.S. Court of Appeals for the Federal Circuit, the court of appeals with nearly exclusive jurisdiction over patent cases. Before December 2008, the Federal Circuit had never used the interlocutory writ of mandamus to order a district court to transfer a case to a more convenient forum, denying each one of the twenty-two petitions it had decided on that issue. Since that time, however, the court has overturned eleven different venue decisions on mandamus. Remarkably, ten of those eleven cases have come from the same district court, the …

The Emerging Enforcement Practice Of The International Criminal Court, Hirad Abtahi, Steven Arrigg Koh

Faculty Scholarship

The dual enforcement regime of the International Criminal Court constitutes a fundamental pillar of the Rome Statute of the International Criminal Court and represents a novel system within the history of international criminal law. This article is the first to focus on the emerging practice of the Court as it begins developing and implementing this unique enforcement regime. Drawing directly from the recent history within the Presidency and focusing on the current activities of the Trust Fund for Victims, this Article explains how, why, and in what direction the Court’s enforcement practice is evolving.

Aedpa Mea Culpa, Larry Yackle

Faculty Scholarship

In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.

No History, No Certainty, No Legitimacy . . . No Problem: Originalism And The Limits Of Legal Theory, Gary S. Lawson

Faculty Scholarship

Professor Martin H. Redish is on the warpath. Like General Sherman marching toward Atlanta (or Justin Tuck marching toward Tom Brady), Professor Redish, together with Matthew Arnould,1 lays waste to every constitutional theory that he encounters. Originalism, with its “belief that constitutional interpretation should be characterized exclusively by an effort to determine the Constitution’s meaning by means of some form of historical inquiry,”2 generates “an often contrived and opaque veil of historical inquiry”3 that provides “an ideal smokescreen behind which judges may pursue their personal[,] moral, political[,] or economic goals with relative impunity.”4 Nontextual theories, for their part, “permit[] selective …

Pluralism On Appeal, Paul Gugliuzza

Faculty Scholarship

In a thoughtful response to my article, Rethinking Federal Circuit Jurisdiction, Ori Aronson notes that judges “work in context, be it social, cultural, or...institutional,” and that “context matters” to their decisions. Indeed, the primary aim of my article was to spur a conversation about the context in which the judges of the Federal Circuit — who have near plenary control over U.S. patent law — decide cases. That context includes many matters in narrow areas of law that bear little relation to the innovation and economic concerns that should animate patent law. To inject those concerns into the court’s province, …

Do Boumediene Rights Expire?, Andrew Kent

Faculty Scholarship

In 2008, Guantanamo detainees won a landmark victory in Boumediene v. Bush, which held that the Congress and the President could not prevent the detainees from accessing the courts to seek release via habeas corpus. The Court decided that persons claiming to be innocent civilians deserved a day in court, even though they were noncitizens held by the U.S. military as enemy combatants on foreign territory. The Court applied a fact-specific test that granted habeas rights to noncitizens outside the United States only when a balance of factors — including citizenship, enemy status, the nature of status review procedures, the …

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Faculty Scholarship

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …

Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young

Faculty Scholarship

State sovereign immunity is a sort of constitutional comet, streaking across the sky once a century to the amazement and consternation of legal commentators. The comet’s appearance has usually coincided with major state debt crises: The Revolutionary War debts brought us Chisholm v. Georgia and the Eleventh Amendment, and the Reconstruction debts brought us Hans v. Louisiana and the Amendment’s extension to federal question cases. This essay argues that much of our law of state sovereign immunity, including its odd fictions and otherwise-incongruous exceptions, can be understood as an effort to maintain immunity’s core purpose — protecting the states from …

‘The Ordinary Diet Of The Law’: The Presumption Against Preemption In The Roberts Court, Ernest A. Young

Faculty Scholarship

In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. Young argues that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important …

The Burdens And Benefits Of Brighton, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Standing The Test Of Time: The Breadth Of Majority Coalitions And The Fate Of U.S. Supreme Court Precedents, Stuart M. Benjamin, Bruce A. Desmarais

Faculty Scholarship

Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding …

Introduction, Paul Finkelman

Faculty Scholarship

No abstract provided.

Case Management In The Circuit Courts, Marin K. Levy

Faculty Scholarship

No abstract provided.

Understanding The Exceptional And Dynamic Nature Of Boumediene Rights To Court Access, Andrew Kent

Faculty Scholarship

This short piece replies to Professor Steve Vladeck's comments on my essay 'Do Boumediene Rights Expire?' 161 U. Pa. L. Rev. Pennumbra 20 (2012), available at http://ssrn.com/abstract=2166103. In this reply, I further develop the argument that Boumediene rights to court access may have expired for those Guantanamo detainees determined through habeas litigation to be enemy fighters; and whether these judicially-confirmed enemy fighters have continuing rights court access under Boumediene goes to the federal courts' subject matter jurisdiction, meaning that the Obama administration's concession of continued court access is inoperative and federal courts must sua sponte raise and decide the issue.

Accessing Justice: The Availability And Adequacy Of Counsel Removal Proceedings: New York Immigrant Representation Study Report, Stacy Caplow, Peter L. Markowitz, Jojo Annobil, Peter Z. Cobb, Nancy Morawetz, Oren Root, Claudia Slovinsky, Zhifen Cheng, Lindsay C. Nash

Faculty Scholarship

No abstract provided.

Pre-Service Removal In The Forum Defendant's Arsenal, Saurabh Vishnubhakat

Faculty Scholarship

This article is the first academic defense of pre-service removal in diversity cases by forum-state defendants under the “properly joined and served” language of 28 U.S.C. § 1441(b). Pre-service removal has proliferated nationally in recent years. Appellate courts, however, have been silent on the issue for two reasons: First, orders that remand a case to state court are statutorily non-reviewable on appeal. Second, cases retained in federal court and litigated to final judgment are highly unlikely, for reasons of judicial economy, to be voided for de novo readjudication in state court. After tracing the development of the removal statute and …

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Stacy Caplow, Lisa Griffin

Faculty Scholarship

No abstract provided.

Stipulating The Law, Gary S. Lawson

Faculty Scholarship

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the President. Four Justices strongly challenged the majority’s willingness to accept what amounts to a stipulation by the parties on a controlling issue of law. As a general matter, the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to …

Legal Integration In The Andes: Law-Making By The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

The Andean Tribunal of Justice (ATJ) is a copy of the European Court of Justice (ECJ), and the third most active international court. This article reviews our findings based on an original coding of all ATJ preliminary rulings from 1984 to 2007, and over forty interviews in the region. We then compare Andean and European jurisprudence in three key areas: whether the tribunals treat the founding integration treaties as constitutions for their respective communities, whether the ATJ and ECJ have implied powers for community institutions that are not expressly enumerated in the founding treaties, and how the tribunals conceive of …