Courts Commons^™

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fiance. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …

Disentangling Administrative Searches, Eve Brensike Primus

Articles

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …

Catching The Wave: State Supreme Court Outreach Efforts, Rebecca Green

Faculty Publications

State supreme courts have begun to grasp the many ways technology can connect the public with courts. This article will review some of the main trends in state supreme courts’ use of the Internet to educate the public about their work.

The Admissibility Of Eyewitness-Identification Expert Testimony In Oklahoma, Sean S. Hunt

Oklahoma Law Review

No abstract provided.

Precedent, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A lawyer’s ineffective representation of a client may be attributable to a lawyer’s own personal failings. However, impairment of the right to effective assistance of counsel may also come from a trial judge’s conduct, and can takes many forms, and occur in varying circumstances. It is therefore difficult to formulate clear principles to cover all of the various situations in which a judge can undermine effective representation. The Borukhova and Mallayev case is only the most recent illustration of the way a ruling of a judge – forcing the lawyer to sum up his case without giving the lawyer adequate …

Comments On Paul R. Michel's Contributions To Justice, 10 J. Marshall Rev. Intell. Prop. L. 279 (2011), James F. Holderman

UIC Review of Intellectual Property Law

No abstract provided.

Chief Judge Michel's Current And Future Contributions To Improving U.S. Intellectual Property Rights, 10 J. Marshall Rev. Intell. Prop. L. 299 (2011), Herbert C. Wamsley

UIC Review of Intellectual Property Law

No abstract provided.

Veterans Benefits In 2010: A New Dialogue Between The Supreme Court And The Federal Circuit, Paul R. Gugliuzza

American University Law Review

No abstract provided.

An Analysis Of The History And Hardship Experienced By Girls In The Las Vegas Juvenile Justice System, Ana Zuniga

McNair Poster Presentations

Previous research has defined several factors as predictors to juvenile delinquency. Characteristics among the youth involved in criminal behavior include various home placements, running away, mental health problems, physical and sexual abuse, delinquency history, and family members with a delinquent background. These factors were analyzed in the current to observe whether the predictors were relevant to girls detained in the Las Vgeas juvenile justice system. While observing the data in this study, it appeared that predictors described in previous research were in fact present among this population. However, Further research should take an in depth look at these factors in …

Special Court For Sierra Leone: Achieving Justice?, Charles Chernor Jalloh

Faculty Publications

The Sierra Leone war, which lasted between 1991 and 2002, gained notoriety around the world for “blood" or "conflict" diamonds and some of the worst atrocities ever perpetrated against civilians in a modern conflict. On January 16, 2002, the United Nations and the Government of Sierra Leone signed an historic agreement to establish the Special Court for Sierra Leone (SCSL). In setting up a new type of ad hoc criminal tribunal, the parties sought to achieve two key objectives. First, to dispense credible justice by enabling the prosecution of those bearing greatest responsibility for the wartime atrocities based on international …

Meaningful Legal Representation For Children And Youth In Washington's Child Welfare System: Standards Of Practice, Voluntary Training, And Caseload Limits In Response To Hb 2735, Lisa Kelly

Books

Introduction, pages 1-2

Executive Summary, pages 3-4

Child Recommendation Practice Standards, pages 5-14

Voluntary Training Recommendations, page 15

Supporting Documentation

• Appendix A, HB 2735, Tab A
• Appendix B, Children's Representation Sub-Workgroup Membership List, Tab B
• Appendix C, American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, Tab C

The Costs Of Heightened Pleading, Alexander A. Reinert

Indiana Law Journal

In Conley v. Gibson, the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. Iqbal and Twombly, by many accounts, two-stepped the Court from …

Demosprudence In Comparative Perspective, Brian E. Ray

Law Faculty Articles and Essays

This article critically examines the debate over demosprudence. It adopts a comparative - specifically South African - perspective to consider what it means for a court to act demosprudentially and why the practice may have particular value in developing democracies like South Africa. Guinier connects demosprudence to the broader concept of democratic constitutionalism developed by Reva Siegel and Robert Post. Democratic constitutionalism in turn is part of what Jack Balkin describes as "a renaissance of liberal constitutional thought that has emerged in the last five years." This renaissance is characterized by three major themes: constitutional fidelity, democratic constitutionalism, and redemptive …

Common Procedural And Jurisdictional Pitfalls To Avoid In Practicing Before The Arkansas Supreme Court, Megan Hargraves

University of Arkansas at Little Rock Law Review

No abstract provided.

The Unpublished Rules Of The Arkansas Court Of Appeals: The Internal Rules And Procedures Of The Arkansas Court Of Appeals, Josephine Linker Hart, Guilford M. Dudley

University of Arkansas at Little Rock Law Review

No abstract provided.

Respect My Authority: Analyzing Claims Of Diminished U.S. Supreme Court Influence Abroad, Aaron B. Aft

Indiana Journal of Global Legal Studies

This paper critiques the argument that the U.S. Supreme Court is losing influence among national and constitutional courts worldwide as a result of its nonparticipation in the emerging judicial globalization. It does so, inter alia, by reviewing two examples of how U.S. authority is cited abroad, and concludes that arguments of diminished influence appear overstated, and that changes in U.S. judicial influence are not likely due to attitudes toward citation of foreign law.

The Terrible TousaS: Opinions Test The Patience Of Corporate Lending Practices, Jessica D. Gabel

Faculty Publications By Year

Two diametrically opposed decisions pit creditors against debtors. The case of troubled homebuilder TOUSA has generated shockwaves through the lending industry. Set against the backdrop of the housing collapse and risky lending, the bankruptcy court’s decision left secured creditors with a mixture of shock, anger, and worry over the repercussions. In that opinion, the bankruptcy court unwound a nearly $1 billion transaction of liens and loan proceeds, on grounds that the transactions drove the debtor company into the ground. In other words, the court found that a fraudulent transfer had occurred. Not surprisingly, the lenders appealed and the next decision …

Section 1983 Wrongful Death And Survival Actions In The Seventh Circuit: An Indiana Litigant's Guide To Claims After Russ V. Watts, Michelle R. Gough

Indiana Law Journal

The availability of survival and wrongful death damages in 42 U.S.C. § 1983 cases is an area that involves both changing precedent and unaddressed issues within the Seventh Circuit. In both of the aforementioned types of claims, the cases will necessarily involve the tangled application of both state and federal law, and the Seventh Circuit and other federal courts of appeals have struggled to provide a clear, coherent approach to these issues. Indeed, there is strong disagreement among the circuits. Dean Steven H. Steinglass offered the most comprehensive discussion of the nature of both types of claims under § 1983 …

Fundamental Versus Deferential: Appellate Review Of Terminations Of Parental Rights, Karen A. Wyle

Indiana Law Journal

Any attorney who handles or follows cases involving termination of parental rights will have often read, “This court has long had a highly deferential standard of review in cases concerning the termination of parental rights.” This article addresses several questions that arise from that familiar language:

• Does the Indiana Court of Appeals in fact have a tradition or practice of highly deferential review of termination orders?
• Is this deference greater than the court accords to trial court decisions in other family law matters or in non-family civil appeals?
• If so, on what legal analysis is this special deference based?
• Is …

Ask And What Shall Ye Receive? A Guide For Using And Interpreting What Jurors Tell Us, Barbara O'Brien, Samuel R. Sommers, Phoebe C. Ellsworth

Articles

We review the extensive body of studies relying on jurors' self-reports in interviews or questionnaires, with a focus on potential threats to validity for researchers seeking to answer particularly provocative questions such as the influence of race in jury decision-making. We then offer a more focused case study comparison of interview and questionnaire data with behavioral data in the domain of race and juror decision-making. Our review suggests that the utility of data obtained from juror interviews and questionnaire responses varies considerably depending on the question under investigation. We close with an evaluation of the types of empirical questions most …

Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson

Faculty Scholarship

This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic …

Defining Civil Disputes: Lessons From Two Jurisdictions, Camille Cameron, Elizabeth Thornburg

Articles, Book Chapters, & Popular Press

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

Systematic Negligence In Jury Operations: Why The Definition Of Systematic Exclusion In Fair Cross Section Claims Must Be Expanded, Paula Hannaford-Agor

Faculty Publications

This Article argues that in the context of fair cross section jurisprudence, courts' ability to control, or at least greatly mitigate, the extent of minority underrepresentation due to nonsystematic factors is greatly underestimated. Over the past forty years, courts have implemented a number of effective practices to ensure an inclusive and representative master jury list and to minimize undeliverable, nonresponse and failure-to-appear, and excusal rates. All of these techniques demonstrably improve the demographic representation of the jury pool. The vast majority of courts employ these techniques on a routine basis. By perpetuating the misconception that courts have no responsibility to …

Prosecuting Federal Crimes In State Courts, Michael G. Collins, Jonathan R. Nash

Faculty Articles

Despite the ancient maxim that the courts of one sovereign will not “execute the penal laws of another,” they sometimes do. For example, federal courts can hear state-law criminal prosecutions of federal officers for acts taken in the course of their duties that are brought initially in state court and are then removed to federal court. In addition, some states now open their courthouse doors to officials from other states to pursue tax enforcement actions against delinquent taxpayers. But states still do not (and perhaps cannot) entertain prosecutions of fugitives solely for crimes committed in another state because the Constitution …

Fragmented Lives: Disability Discrimination And The Role Of "Environment-Framing", Ani B. Satz

Faculty Articles

This Article presents a novel theory that courts undermine the purpose of the Americans with Disabilities Act (ADA) by implicitly embracing environment-frames that disfavor disability protections. Courts employ environment-frames at two stages of judicial analysis under the Act: the disability eligibility and remedy stages. In determining whether a plaintiff is in the statutorily protected class, courts typically use a broad environment-frame to assess limitation of a "major life activity. " The larger the environment-frame, the more likely a court will view an individual as able to perform a major life activity in some portion of her environment and deny her …

What Are We Studying? Student Jurors, Community Jurors, And Construct Validity, Stacie R. Keller, Richard L. Weiner

Department of Psychology: Faculty Publications

Jury researchers have long been concerned about the generalizability of results from experiments that utilize undergraduate students as mock jurors. The current experiment examined the differences between 120 students (55 males and 65 females, mean age = 20 years) and 99 community members (49 males and 50 females, mean age = 42 years) in culpability evaluations for homicide and sexual assault cases. Explicit attitude measures served as indicators of bias for sexual assault, defendant, and homicide adjudication. Results revealed that student and community participants showed different biases on these general explicit attitude measures and these differences manifested in judgments of …

Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects …

Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross

Articles

The fundamental problem with false convictions is that they are unobserved, and in general, unobservable. We don't spot them when they happen-if we did, they wouldn't happen-and in most cases we can't identify them after the fact. We have no general reliable test for innocence or guilt; if we did, we'd use it at trial. As result, we often say that we don't know for sure whether a convicted criminal defendant is innocent or guilty, or even that we can't know for sure. But this isn't exactly true-or rather, its truth depends on who we mean by "we."

Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran

Articles

Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …