Courts Commons^™

In The Room Where It Happens: Including The "Public's Will" In Judicial Review Of Agency Action, Twinette L. Johnson

Journal Articles

In the context of higher education reform, the people need to be in the important rooms where the decisions are being made. One such room is the courtroom. This essay elaborates on this premise, previously written about in an article I wrote entitled, 50,000 Voices Can’t Be Wrong, But Courts Might Be: How Chevron’s Existence Contributes to Retrenching the Higher Education Act. That article was the second in a series of three articles on the retrenchment of the Higher Education Act of 1965 (“HEA”) using the William Eskridge and John Ferejohn statutory entrenchment model.

The Role Of Circuit Courts In The Formation Of United States Law In The Early Republic, David P. Waddilove

Journal Articles

The Role of Circuit Courts in the Formation of United States Law in the Early Republic: Following Supreme Court Justices Washington, Livingston, Story, and Thompson. ByDAVID LYNCH. [Portland, OR: Hart Publishing, 2018. xxi +233 pp. Hardback £70.00. ISBN 978-15-09910-85-4.]

The chosen justices were: Bushrod Washington, who served 1801–1829; H. Brockholst Livingston, 1807–1823; Joseph Story, 1811–1845; and Smith Thompson, 1823–1843.

E-Notice, Christine P. Bartholomew

Journal Articles

Social media platforms and smartphone manufacturers face class action lawsuits, but how open are federal courts to using these very technologies to notify members of a class action? This Article details the results from an empirical analysis of over 2700 federal class notice decisions. It finds class notice changing, but very slowly. Supreme Court precedent demands a dynamic standard for class action notice. However, fears of change, technology, and imprecision keep courts tethered to twentieth-century modes of communication. This judicial fear encumbers E-Notice—at a cost to the utility of class action procedures.

Forum Selection Clauses And Consumer Contracts In Canada, Tanya J. Monestier

Journal Articles

Every day, billions of people use the online social media platform, Facebook. Facebook requires, as a condition of use, that users “accept” its terms and conditions—which include a forum selection clause nominating California as the exclusive forum for dispute resolution. In Douez v. Facebook, the Supreme Court of Canada considered whether this forum selection clause was enforceable, or whether the plaintiff could proceed with her suit in British Columbia.

The Supreme Court of Canada ultimately decided that the forum selection clause was not enforceable. It held that the plaintiff had established “strong cause” for departing from the forum selection clause. …

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …

Judicial Supremacy In Comparative Constitutional Law, Manoj Mate

Journal Articles

This Article challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and Western models of constitutionalism and argues for re-conceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally. Drawing on insights from global constitutional systems, this is the first article to argue for and develop an institutional conception of judicial supremacy that focuses on three key institutional roles played by courts globally: constitutional guardianship, institutional guardianship, and governance optimization. It then provides a dynamic account of the emergence of “expansive” judicial supremacy in India through a …

Before Interpretation, Anya Bernstein

Journal Articles

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to …

Defining The Scope Of Fiduciary Liability, Paul Miller

Journal Articles

The Supreme Court of Canada has won faint praise and significant criticism for its fiduciary jurisprudence over the past few decades. In prior work, I have come to the partial defence of the Court, commending it for its willingness to confront key questions going to the structure and scope of fiduciary liability, and equally for its interest in ensuring that the law's elasticity is not lost to unreflective adherence to custom and convention. By contrast, peer courts in other jurisdictions have been much less open and creative in addressing questions concerning fiduciary law's general principles and, as a result, the …

Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray

Journal Articles

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts.

This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor …

Inside The 'Constitutional Revolution' Of 1937, Barry Cushman

Journal Articles

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number …

Vote Fluidity On The Hughes Court: The Critical Terms, 1934-1936, Barry Cushman

Journal Articles

This article makes four principal claims. The first is that the justices of the Hughes Court often changed their positions in major cases between the time that they cast their votes in conference and their final votes on the merits. The second is that the Court achieved comparatively high rates of unanimity even during its most turbulent Terms because justices who had served on earlier Courts had internalized a norm counseling those who lost at the conference vote to acquiesce in the judgment of the majority. The third is that the justices who most frequently did so in this period’s …

The English Fire Courts And The American Right To Civil Jury Trial, Jay Tidmarsh

Journal Articles

This Article uncovers the history of a long-forgotten English court system, the “fire courts,” which Parliament established to resolve dispute between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts’ remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment’s right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation.

Parliament enacted fire-courts legislation on eight occasions …

Globalization, Rights And Judicial Review In The Supreme Court Of India, Manoj Mate

Journal Articles

This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decisionmaking in rights-based challenges to economic liberalization, privatization, and development policies over the past three decades. While the Court has been mostly deferential in its review of these policies and projects, it has in many cases been active and instrumental in remaking and reshaping regulatory frameworks, bureaucratic structures, accountability norms, and in redefining the terrain of fundamental rights that non-governmental organizations (NGOs) and other litigants have invoked in challenges to these policies. This article argues that the …

In Loco Juvenile Justice: Minors In Munis, Cash From Kids, And Adolescent Pro Se Advocacy - Ferguson And Beyond, Mae Quinn

Journal Articles

No abstract provided.

Chaining Kids To The Ever Turning Wheel: Other Contemporary Costs Of Juvenile Court Involvement, Candace Johnson, Mae Quinn

Journal Articles

In this essay, Candace Johnson and Mae Quinn respond to Tamar Birckhead’s important article The New Peonage, based, in part, on their work and experience representing youth in St. Louis, Missouri. They concur with Professor Birckhead’s conclusions about the unfortunate state of affairs in 21st century America— that we use fines, fees, and other prosecution practices to continue to unjustly punish poverty and oppressively regulate racial minorities. Such contemporary processes are far too reminiscent of historic convict leasing and Jim Crow era efforts intended to perpetuate second-class citizenship for persons of color. Johnson and Quinn add to Professor Birckhead’s critique …

The Call And The Response: The Call, The 1991 Open Letter From Federal Judge A. Leon Higginbotham, Jr., And The 25 Years Of Response From Justice Clarence Thomas, Angela Mae Kupenda

Journal Articles

In 1991, Clarence Thomas was confirmed as the first Black radical conservative Justice, in spite of opposition including credible allegations of sexual harassment lodged against him. His unprecedented confirmation evoked unprecedented reactions, including written ones. One such written action is the basis for this article. Our nation is now fast approaching the anniversary, not only of Thomas’ 25 ceremonial years on the Court, but also of almost 25 years since an unprecedented, published, pointed, open, publicly and widely circulated correspondence was sent to the newly confirmed Justice Thomas by another Black judge. Esteemed Federal Judge A. Leon Higginbotham, Jr., penned …

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Roger P. Alford, Julian G. Ku, Bei Xiao

Journal Articles

The Article begins in Part I by discussing the academic literature reviewing China's implementation of the New York Convention with re­spect to foreign arbitral awards. In Part II, the Article lays out the domes­tic legal framework in China for implementing foreign arbitral awards and reviews judicial decisions interpreting the New York Convention. In Part III, the Article reports on the results of its survey of practitioner perceptions and experiences with the Chinese system of enforcing arbitral awards. Finally, in Part IV, the article concludes with a possible explana­tion for continuing skeptical views of China's system of enforcing foreign arbitral awards.

Resurrecting Trial By Statistics, Jay Tidmarsh

Journal Articles

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …

The Rise Of Judicial Governance In The Supreme Court Of India, Manoj Mate

Journal Articles

This article analyzes how the Supreme Court of India, through its activism and assertiveness, has emerged as arguably the most powerful court among democratic polities. Over the past four and a half decades, the Court dramatically expanded its role in the realm of rights and governance, asserting the power to invalidate constitutional amendments under the basic structure doctrine, control judicial appointments, and govern in the areas of environmental policy, monitoring and investigating government corruption, and promoting electoral transparency and accountability. In this article, I argue that the Court’s shift toward greater, yet selective, assertiveness in India’s governance can most adequately …

Anna Moscowitz Kross And The Home Term Part: A Second Look At The Nation's First Criminal Domestic Violence Court, Mae C. Quinn

Journal Articles

No abstract provided.

(Re-)Grasping The Opportunity Interest: Lehr V. Robertson And The Terminated Parent, Lashanda Taylor Adams

Journal Articles

In 1997, an Ohio court terminated Peggy Fugate’s parental rights to her sixyear-old daughter, Selina. At the time, Ms. Fugate, an incarcerated drug abuser, did not fight the order, believing her daughter would be adopted into a clean, stable home.1 However, Selina was never adopted. For the next seven years, Selina had trouble with the police and ran away from her foster home numerous times. While Selina’s life was going downhill in many respects, her mother was rehabilitating. She entered recovery, married, obtained full-time employment and was living in stable housing with enough room for her daughter. Recognizing the strides …

Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith

Journal Articles

In Yates v. United States, the Supreme Court will decide whether tossing undersized fish overboard can be prosecuted under the Sarbanes–Oxley Act of 2002, a law aimed at preventing massive frauds of the sort that led to the collapse of Enron and sent shock waves throughout the economy. Although the legal issue is narrow, the case has far-reaching significance. The Yates prosecution is a case study in the dangers posed by “overcriminalization”: the existence of multitudinous, often overlapping criminal laws that are so poorly defined that they sweep within their ambit conduct far afield from their intended target.

The …

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Journal Articles

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that doctrinal development. Part …

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially …

The Story Of Prudential Standing, S. Todd Brown

Journal Articles

Prudential standing, it seems, is the latest target in the Roberts Court’s effort to “bring some discipline” to jurisdictional and pseudo-jurisdictional concepts. During the Court’s last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts’ prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …

Foreword: The Confident Court, Jennifer Mason Mcaward

Journal Articles

Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court. This piece discusses …

The Clerks Of The Four Horsemen (Part I), Barry Cushman

Journal Articles

The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange …

The Scope Of Precedent, Randy J. Kozel

Journal Articles

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial …

Statutes In Common Law Courts, Jeffrey A. Pojanowski

Journal Articles

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in …