Courts Commons^™

Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

This Article empirically examines the question of whether courts of appeals judges cast ideological votes in the context of bankruptcy. The empirical study is unique insofar as it is the first to specifically examine the voting behavior of circuit court judges in bankruptcy cases. More importantly, it focuses on a particular type of dispute that arises in bankruptcy - debt-dischargeability determinations. The study implements this focused approach in order to reduce heterogeneity in result. We find, contrary to our hypotheses, no evidence that circuit court judges engage in ideological voting in bankruptcy cases. We do find, however, non-ideological factors - …

A Dynamic Model Of Doctrinal Choice, Scott Baker, Pauline Kim

Scholarship@WashULaw

This paper develops a repeated game model of the choice of doctrinal form by a higher court. Doctrine can take any point along a continuum from more determinate, rule-like legal commands to more flexible, standard-like directives. In deciding a case, the Supreme Court not only decides on a substantive outcome, but also chooses where on this continuum to set the doctrine. The lower court then applies the legal command to future cases. In doing so, it may wish to take into account new information, but the cost of doing so varies with the form of the legal doctrine. The model …

Supreme Court Prequel: Justice Stevens On The Seventh Circuit Symposium, Stefanie A. Lindquist

Scholarship@WashULaw

Justice Stevens’s retirement from the U.S. Supreme Court has occasioned numerous retrospectives on his lengthy career as a Supreme Court Justice. Yet Justice Stevens’s career began on the Seventh Circuit and his voting behavior and doctrinal positions on the circuit court provide a unique window into his judicial character and the roots of his thinking on important issues that continued to preoccupy him on the Supreme Court. In this Essay, I first analyze then-Judge Stevens’s voting behavior on the court of appeals by examining the frequency with which he wrote separate opinions, as well as his voting interagreement with his …

(Dys)Functionality, Mark P. Mckenna

Journal Articles

The functionality doctrine serves a unique role in trademark law: unlike virtually every other doctrine, functionality can trump consumer confusion (or so it seems, at least in mechanical-functionality cases). In this sense, functionality may be the only doctrine in trademark law that can truly be considered a defense. But despite its potential power, the functionality doctrine is quite inconsistently applied. This is true of mechanical functionality cases because courts differ over the extent to which the doctrine focuses on competitors’ right to copy unpatented features as opposed to their need to copy. And aesthetic functionality cases are even more scattered: …

Understanding The Value Of Judicial Diversity Through The Native American Lens, Paige E. Hoster

American Indian Law Review

No abstract provided.

"[This] I Know From My Grandfather:" The Battle For Admissibility Of Indigenous Oral History As Proof Of Tribal Land Claims, Hope M. Babcock

American Indian Law Review

A major obstacle indigenous land claimants must face is the applicationof federal evidentiary rules, like the hearsay doctrine, which block the useof oral history to establish legal claims. It is often oral history and storiesthat tribes rely upon as evidence to support their claims, reducingsubstantially the likelihood of a tribe prevailing. Indigenous oral historypresents unique challenges to judges when faced with its admissibility.Canadian courts have largely overcome these challenges by interpretingevidentiary rules liberally, in favor of the aborigines. As such, Canadianaborigines have enjoyed greater land claim success than indigenousclaimants in the United States, raising the question why United Statescourts do …

Sword Or Submission? American Indian Natural Resource Claims Settlement Legislation, Benjamin A. Kahn

American Indian Law Review

No abstract provided.

The Ball Is In Congress's Court: Contract Support Costs Following Ramah, James J. Linhardt

American Indian Law Review

No abstract provided.

Winner, Best Appellate Brief In The 2012 Native American Law Student Association Moot Court Competition, Jocelyn Jenks, Jacquelyn Amour Jampolsky

American Indian Law Review

No abstract provided.

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 …

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 …

Context And Trivia, Samuel Brenner

Michigan Law Review

My academic mantra, writes Professor James C. Foster in the Introduction to BONG HiTS 4 JESUS: A Perfect Constitutional Storm in Alaska's Capital, which examines the history and development of the Supreme Court's decision in Morse v. Frederick, "[is] context, context, context" (p. 2). Foster, a political scientist at Oregon State University, argues that it is necessary to approach constitutional law "by situating the U.S. Supreme Court's ... doctrinal work within surrounding historical context, shorn of which doctrine is reduced to arid legal rules lacking meaning and significance" (p. 1). He seeks to do so in BONG HiTS 4 JESUS …

The Justiciability Of Fair Balance Under The Federal Advisory Committee Act: Toward A Deliberative Process Approach, Daniel E. Walters

Michigan Law Review

The Federal Advisory Committee Act's requirement that advisory committees be "fairly balanced in terms of the points of view represented and the functions to be performed" is generally considered either nonjusticiable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts' purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act's most important substantive limitation on institutional pathologies such as committee "capture" or domination is generally unused despite the ubiquity of federal advisory committees in the modern regulatory …

Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman

All Faculty Scholarship

This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups …

Beyond Saints And Sinners: Discretion And The Need For New Narratives In The U.S. Immigration System, Elizabeth Keyes

All Faculty Scholarship

Beyond Saints and Sinners examines the forces affecting the exercise of discretion in American immigration courts, and argues that in this present age of immigration anxiety, the same facts that place an individual in deportation proceedings may constitute the reasons a judge will, relying on discretion, deny them relief for which they are otherwise eligible. The article explores the polarized narratives told about "good" and "bad" immigrants, the exceptionally difficult task of adjudicating in overburdened immigration courts, and the ways in which these polarized narratives interact with psychological short-cuts, or heuristics, that affect judicial exercises of discretion. After engaging in …

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.

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 …

How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus

Articles

For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …

Upside-Down Judicial Review, Corinna Barrett Lain

Law Faculty Publications

The countermajoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But sometimes the opposite is true. Sometimes it is the elected branches that are out of sync with majority will and the Supreme Court that bridges the gap, turning the conventional understanding of the Court's role on its head. Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. What emerges is a distinctly majoritarian, upside-down understanding of judicial review. This Article illustrates, explains, and …

Possession And Knowledge In The Misuse Of Drugs Act: Nagaenthran A/L K Dharmalingam V. Public Prosecutor, Siyuan Chen, Nathaniel Poon-Ern Khng

Research Collection Yong Pung How School Of Law

When the Court of Appeal rendered the decision of Tan Kiam Peng in 2008, it was unable to come to a conclusive determination of the correct interpretation of s. 18(2) of the Misuse of Drugs Act, a provision pertaining to the presumption of an accused’s knowledge of the nature of the controlled drugs in his possession. This issue was presented to a differently constituted Court of Appeal in Nagaenthran, which seemingly ruled in favour of the narrow interpretation of s. 18(2) as opposed to the broader interpretation. Nagaenthran, however, did not address the questions raised by Tan Kiam Peng vis-à-vis …

The Expanding Limits Of Prosecutorial Discretion: Ramalingam Ravinthran V Attorney-General [2012] Sgca 2, Siyuan Chen

Research Collection Yong Pung How School Of Law

The applicant was convicted of drug trafficking under the Misuse of Drugs Act and sentenced to hang. His appeal to the Court of Appeal was unsuccessful, but he filed a Criminal Motion to reopen judgment. He alleged a violation of his right to equality guaranteed by the Constitution of the Republic of Singapore; the alleged violation occurred when another accused who was involved in the same criminal enterprise (both had trafficked the same bag containing the drugs) was charged with trafficking in an amount of drugs quantified just below the threshold for the mandatory death penalty, while the accused was …

A Trilogy Of "Difficult And Complex" Arbitration Issues In 2012, Darius Chan

Research Collection Yong Pung How School Of Law

At the end of 2011, the Singapore High Court in Re David Joseph QC [2011] SGHC 262 (per VK Rajah JA) permitted the admission of an English Queen’s Counsel, David Joseph QC, to represent eight entities of the Astro Group, a Malaysian broadcasting and media entity, in proceedings arising from an arbitration with three subsidiaries of Indonesia’s Lippo Group. Under Singapore’s current statutory scheme, the court may admit QCs on an ad hoc basis if a matter contains issues of fact or law of “sufficient difficulty and complexity”, and if the circumstances of the case warrant it. The High Court …

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.

Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …

Work-Family Conflict And The Pipeline To Power: Lessons From European Gender Quotas, Julie C. Suk

Articles

The article examines the persistent gender disparities at the top of the legal profession, attributing them to work-family conflict and the disproportionate impact of caregiving responsibilities on women. It explores European gender quotas as a potential solution, arguing that such measures address the legitimacy and effectiveness of institutions by ensuring gender parity in leadership positions. While acknowledging the challenges in implementing quotas in the U.S., the analysis suggests that European approaches offer valuable insights for addressing the "leaky pipeline" and advancing gender equality in the legal profession.

New York Tax Warrants: In The Strange World Of Deemed Judgments, David G. Carlson

Articles

No abstract provided.

Suing Courts, Frederic Bloom, Christopher Serkin

Publications

This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different--on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why …