Courts Commons^™

The Chevron Two-Step In Georgia's Administrative Law, David Shipley

Scholarly Works

The Georgia Supreme Court and Court of Appeals have long accepted the General Assembly’s authority to enact legislation that establishes administrative agencies and empowers those agencies to promulgate rules and regulations to implement their enabling statutes. In addition, the Georgia Constitution provides that the General Assembly may authorize agencies to exercise quasi-judicial powers. Administrative agencies with broad powers enjoy a secure position under Georgia law.

Like federal and state administrative agencies throughout the nation, Georgia’s many boards, commissions and authorities make policy when they apply their governing statutes in promulgating regulations of general applicability, and in ruling on specific matters …

No Justice In Utah's Justice Courts: Constitutional Issues, Systemic Problems, And The Failure To Protect Defendants In Utah's Infamous Local Courts, Samuel P. Newton, Teresa L. Welch, Neal G. Hamilton

Utah OnLaw: The Utah Law Review Online Supplement

Utah’s justice of the peace courts look and feel exactly like district courts, yet they lack the benefits and protections afforded to citizens charged with more serious offenses. Utah should strongly consider abolishing its justice courts in order to integrate them into a statewide system of justice that would “keep the peace” for all of the state’s citizens. If Utah does not abolish its justice courts, then it should implement the procedures and reforms outlined in this Article. Utah continues to have an opportunity to provide meaningful, and constitutional, justice administered at its local level. Once these reforms were implemented, …

Symposium On State Court Funding: Keynote Address, Erwin Chemerinsky

Kentucky Law Journal

No abstract provided.

No Exit: The Financial Crisis Facing State Courts, G. Alan Tarr

Kentucky Law Journal

No abstract provided.

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 …

Best Outcomes For Indian Children, Loa L. Porter, Patina Park Zink, Angela R. Gebhardt, Mark Ells, Michelle Graef

Center on Children, Families, and the Law: Faculty Publications

The Wisconsin Department of Children and Families and the Midwest Child Welfare Implementation Center are collaborating with Wisconsin's tribes and county child welfare agencies to improve outcomes for Indian children by systemically implementing the Wisconsin Indian Child Welfare Act (WICWA).This groundbreaking coUaboration wiU increase practitioners' understanding ofthe requirements of WICWA and the need for those requirements, enhance communication and coordination between all stakeholders responsible for the welfare of Indian children in Wisconsin; it is designed to effect the systemic integration of the philosophical underpinnings of WICWA.

In December 2009, Governor James Doyle signed the Wisconsin Indian Child Welfare Act, signaling …

Changing The Narrative Of Child Welfare, Matthew I. Fraidin

Journal Articles

No abstract provided.

False Convictions, Phoebe C. Ellsworth, Samuel R. Gross

Book Chapters

False convictions have received a lot of attention in recent years. Two-hundred and forty-one prisoners have been released after DNA testing has proved their innocence, and hundreds of others have been released without DNA evidence. We now know quite a bit more about false convictions than we did thirty years ago - but there is much more that we do not know, and may never know.

The Invisible Branch: Funding Resilient Courts Through Public Relations, Institutional Identity, And A Place On The "Public Radar", Paul J. De Muniz

Kentucky Law Journal

No abstract provided.

My Internship At The Champaign State’S Attorney’S Office, Rebecca Davis

Independent Honors Projects

A summary of my experiences during my service honors project as an intern in the Champaign County State's Attorney's Office.

2011 Trademark Law Decisions Of The Federal Circuit, Marynelle Wilson, Antigone Peyton

American University Law Review

No abstract provided.

The Gangs Of Asylum, Linda K. Hill

Georgia Law Review

Should immigrants fleeing gang violence be entitled to
refuge in the United States? Today, the response of most
U.S. courts is "no." The principal means by which an
individual fleeing his home country seeks safety in the
United States is by qualifying for asylum or withholding
of removal. Notwithstanding some critical distinctions
between asylum and withholding of removal, each
protection requires a claimant to demonstrate his fear of

persecution is on account of race, religion, nationality,
membership in a particular social group or political
opinion. Yet rather than evaluating gang-based claims
upon existing refugee standards, the courts are
manipulating the …

Human Rights And Counterterrorism: A Contradiction Or Necessary Bedfellows?, Amos N. Guiora

Georgia Law Review

Ten years after the 9/11 terrorist attacks, questions
remain regarding the relationship between human rights
and counterterrorism. The historical track record of the
Executive Branch, Supreme Court, and Congress in this
vein is troubling. While the contradiction suggested in
this Essay's title need not be the case, it is, nevertheless,
the persistent reality in American history.
This Essay assesses the current relationship between
human rights and counterterrorism. In doing so, it
reflects on wartime measures implemented by presidents
throughout U.S. history and recommends a way forward
that facilitates more effective protection of human rights

without impinging on legitimate national security …

A Judicial Solution To The Forum-Selection Clause Enforcement Circuit Split: Giving Erie A Second Chanc, Kelly A. Blair

Georgia Law Review

In The Bremen v. Zapata Off-Shore Co., the Supreme
Court established the federal standard of enforcing forum-
selections clauses as presumptively reasonable. The Court,
however, first addressed the enforceability of forum-
selection clauses in a diversity case in Stewart
Organization, Inc. v. Ricoh Corp., in which the Court held
that under Erie, federal law, specifically 28 U.S.C.
§ 1404(a), governs the enforceability of forum-selection
clauses. After Stewart, a split within the United States
Courts of Appeals developed when litigants used Rule 12
motions to dismiss-a procedural vehicle unaddressed by
the Stewart Court-to enforce these clauses. The circuit
split has two …

Cruises, Class Actions, And The Court, David Korn, David Rosenberg

University of Michigan Journal of Law Reform Caveat

As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.

Government May Not Speak Out-Of-Turn, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent …

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 …

2011 Patent Law Decisions Of The Federal Circuit, Robert A. Pollock, Linda A. Wadler, Robert D. Litowitz, Joyce Craig, Bart A. Gerstenblith, Christina Szakaly, Zhenyu Yang, Mindy L. Ehrenfried

American University Law Review

No abstract provided.

2011 Government Contract Law Decisions Of The Federal Circuit, Joel Singer, Kyle Fiet, Matthew Solomson, Benjamin Glerum

American University Law Review

No abstract provided.

Prefering Order To Justice, Laura Rovner, Jeanne Theoharis

American University Law Review

No abstract provided.

Achieving Fundamental Fairness For Oklahoma's Juveniles: The Role For Competency In Juvenile Proceedings, Mary Sue Backus

Oklahoma Law Review

No abstract provided.

Article Iii And Removal Jurisdiction: The Demise Of The Complete Diversity Rule And A Proposed Return To Minimal Diversity, Rodney K. Miller

Oklahoma Law Review

The complete diversity rule is broken. Although easily applied in theory (federal courts can exercise subject matter jurisdiction over an action on diversity grounds only when no party is of the same citizenship as any adverse party), over time the number of judicially and legislatively created exceptions to the rule, as well as their varying and inconsistent application by the federal courts, has created an environment in which similarly situated parties are treated differently based solely on the forum in which the litigation is brought. In the removal context, depending upon the forum in which an action is filed, a …

Unlikely To Succeed: How The Second Circuit's Adherence To The Serious Questions Standard For The Granting Of Preliminary Injunctions Contradicts Supreme Court Precedent And Turns And Extraordinary Remedy Into An Ordinary One, Jacob S. Crawford

Oklahoma Law Review

No abstract provided.

Text(Plus-Other-Stuff)Ualism:Textualists' Perplexing Use Of The Attorney General's Manual On The Administrative Procedure Act, K. M. Lewis

Michigan Journal of Environmental & Administrative Law

Textualist judges, such as U.S. Supreme Court Justice Antonin Scalia, are well known for their outspoken, adamant refusal to consult legislative history and its analogues when interpreting ambiguous provisions of statutory terms. Nevertheless, in administrative law cases, textualist judges regularly quote the Attorney General’s Manual on the Administrative Procedure Act, an unenacted Department of Justice document that shares all the characteristics of legislative history that textualists find odious: unreliability, bias, and failure to pass through the bicameralism and presentment processes mandated by the U.S. Constitution. As a result, judges that rely on the Manual in administrative law cases arguably reach …

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.

The Predicament Of China's "Wto-Plus" Obligation To Eliminate Export Duties: A Commentary On The China-Raw Materials Case, Julia Ya Qin

Law Faculty Research Publications

No abstract provided.

The Distinctiveness Of Appellate Adjudication, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

This paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, and it is this aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. …

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

Georgetown Law Faculty Publications and Other Works

A significant and growing portion of the United States 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. …