Courts Commons^™

The Disconnected Juror: Smart Devices And Juries In The Digital Age Of Litigation, Patrick C. Brayer

Faculty Works

As we progress toward a post-digital age of individuals becoming one with technology, the legal profession will encounter an increasing number of jurors who have never known life without the Internet, social media or mobile devices. At the same time an increasing number of citizens are becoming dependent on digital technology, state supreme courts, state trial judges, and federal judges from across the nation are banning and confiscating cell phones, tablets, and other devices of connection to prevent jurors from engaging in misconduct. This article illuminates the unintended consequences that arise when courts remove from a sitting juror an individual …

Judge Shopping In The Eastern District Of Texas, Jonas Anderson

Utah Law Faculty Scholarship

Judge Rodney Gilstrap has a lot of patent cases on his docket. In fact, in 2015 there were 1,686 patent cases that were filed and assigned to Judge Gilstrap, an astronomical number for a single judge. Judge Gilstrap — one of eight federal judges who sit on the Eastern District of Texas — is so popular with patent plaintiffs that over one-fourth of all patent cases in the country are heard by him. This Article addresses the problems with allowing this judge shopping to occur. It reviews the scholarship on the topic that is almost universally opposed to judge shopping …

Easy Come, Easy Go: The Plight Of Children Who Spend Less Than 30 Days In Foster Care, Vivek Sankaran, Christopher Church

Articles

This article explores the plight of “short stayers” and argues that juvenile courts are failing to use two tools—the federal reasonable efforts requirement and the early appointment of parents’ counsel—to prevent the unnecessary entry of children into foster care. The article also argues that states should give parents and children the right to an expedited appeal of removal decisions to ensure removal standards are properly applied. Finally, this article argues that the federal government must acknowledge the problem of short stayers by utilizing data related to children who may unnecessarily enter foster care in the Child and Family Services Review, …

Fixing The Federal Judicial Selection Process, Carl W. Tobias

Law Faculty Publications

Federal court selection is eviscerated. Across five years in Barack Obama’s presidency, the judiciary confronted some eighty-five vacancies because Republicans never agreed to prompt Senate consideration. Only when the Democratic majority ignited the “nuclear option,” a rare action that permitted cloture with fewer than sixty votes, did gridlock end. However, openings quickly grew after the Grand Old Party (GOP) captured an upper chamber majority, notwithstanding substantial pledges that it would supply “regular order” again. Over 2015, the GOP cooperated little, approving the fewest jurists since Dwight Eisenhower was President. However, selection might worsen. This year is a presidential election year, …

Confirm Myra Selby For The Seventh Circuit, Carl W. Tobias

Law Faculty Publications

President Barack Obama recently nominated Myra Selby for a vacancy on the U.S. Court of Appeals for the Seventh Circuit. The nominee is a highly accomplished lawyer who has compiled a distinguished record in both the public and private sectors. For example, Selby was the first African American to earn partnership in a substantial Indianapolis law firm, and both the first African American and the first female Justice to serve on the Indiana Supreme Court. Therefore, concerted White House attempts to confirm her were unsurprising. Nonetheless, with 2016 being a presidential election year, delays have inevitably infused appointments, which have …

A Further Note On Federal Causes Of Action, John F. Preis

Law Faculty Publications

In the article, I argue that federal causes of action ought to be treated as (1) distinct from substantive rights, (2) synonymous with the availability of a remedy (but not whether a remedy will in fact issue) and (3) distinct from subject matter jurisdiction (unless Congress instructs otherwise). This thesis is built principally on a historical recounting of the cause of action from eighteenth century England to twenty-first century America. In taking an historical approach, I did not mean to argue that federal courts are bound to adhere to centuries-old conceptions of the cause of action. I merely used history …

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, Alan Scott Rau, George Bermann

Faculty Scholarship

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …

A Demographic History Of Federal Judicial Appointments By Gender And Race: 1789-2016, Jonathan K. Stubbs

Law Faculty Publications

This article briefly surveys the constitutional and statutory foundation for the creation of the federal judiciary. It also furnishes data, by sex and race, of the appointment of federal judges to courts of general jurisdiction during each presidential administration from September 24, 1789, through April 11, 2016. Thus, Part I describes the pace of diversification of the federal judiciary. While data regarding other attributes of judges (such as their socioeconomic status) exist, extensive analysis of such characteristics falls outside the parameters of this preliminary analysis. Nonetheless, the Article notes in passing that, since 1989, during each presidential administration, the majority …

The New Public, Sarah Seo

Faculty Scholarship

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history …

Chevron Bias, Philip A. Hamburger

Faculty Scholarship

This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges – questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked …

Meeting The Challenges Of High-Volume Civil Dockets, Hannah E. M. Lieberman, Paula Hannaford-Agor

Faculty Publications

Consumer-debt-collection, landlord/tenant, small-claims, and contract cases involving relatively small amounts comprise almost 80 percent of civil caseloads. This essay examines the challenges associated with high-volume civil dockets and summarizes recommendations to address these challenges and strengthen the integrity of the civil justice system.

‘By The Court’: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick

Osgoode Legal Studies Research Paper Series

The Supreme Court of Canada has for several decades used an anonymous and unanimous decision format – ‘By the Court’ – for a subset of its constitutional decisions; although some of the specific cases (such as the Quebec Secession Reference) have been closely examined, the practice itself has never received focused consideration. This article establishes a chronology, an inventory, and a typology for the Supreme Court’s ‘By the Court’ judgments, and concludes by suggesting that it use has become more frequent under the current Chief Justice.

Issue Preclusion: The Effect B&B Hardware Will Have On Trademark Litigation, 15 J. Marshall Rev. Intell. Prop. L. 257 (2016), Lian Osier

UIC Review of Intellectual Property Law

Trademark issues are frequently litigated in the United States Patent and Trademark Office, yet circuits were previously divided on how much weight to give those decisions. The Supreme Court provided the answer. B&B Hardware v. Hargis Indus. held that in certain circumstances, the Trademark Trial and Appeal Board will have a preclusive effect on federal district courts. This comment looks at what effect this ruling will have on trademark litigation in district courts by examining the cases that caused the circuit split leading up to the Supreme Court’s decision.

Restoring The Civil Jury In A World Without Trials, Dmitry Bam

Faculty Publications

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the …

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 …

Third Circuit Court Reports (1789-1879), Joel Fishman

Law Faculty Publications

The history of court reporting of the federal lower judiciary dates from the early days of the Republic. Mr. Fishman helps to document that history by reviewing the publication of the reports for the Third Circuit ( circuit and district courts) covering the nominative reports from the late-eighteenth to the late-nineteenth century, before their republication in Federal Cases by West Publishing Company. A bibliography is appended.

A Referee Without A Whistle: Magistrate Judges And Discovery Sanctions In The Seventh Circuit, Landyn Wm. Rookard

Indiana Law Journal

This Note ultimately argues that, if the Seventh Circuit is not willing to reverse its holdings in Alpern v. Lieb and Retired Chicago Police Ass'n v. City of Chicago in light of recent developments, Congress should again clarify its intent. In the face of the crushing "costs of discovery [that] threaten to exceed the amount at issue in all but the largest cases," it is the Seventh Circuit's responsibility to employ all just and legal devices to comply with Congress's mandate "to secure the just, speedy, and inexpensive determination of every action and proceeding."

Expanding Territorial Bounds: The Recognition Doctrine After Zivotofsky V. Kerry, Nicole Kirkilevich

Loyola of Los Angeles Law Review

No abstract provided.

The Foreign Account Tax Compliance Act: The Solution Or The Problem?, Sophie S. Chou

CMC Senior Theses

Tax evasion has been happening for decades, but after the highly publicized cases with two foreign banks, LGT and UBS, the United States (US) is cracking down on tax evaders. The latest addition to the Internal Revenue Service (IRS)’s repertoire of enforcement tools is the Foreign Account Tax Compliance Act, otherwise known as FATCA. The Act was enacted to incentivize tax information release by foreign financial institutions (FFIs) who would otherwise face a 30% withholding tax on any US source income. The question was whether or not the design of the Act and its implementation successfully met this goal.

This …

Permitting Voluntary Euthanasia And Assisted Suicide: Law Reform Pathways For Common Law Jurisdictions, Jocelyn Downie

Articles, Book Chapters, & Popular Press

End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences …

Medical Certificates Of Death: First Principles And Established Practices Provide Answers To New Questions, Jocelyn Downie, Kacie Oliver

Articles, Book Chapters, & Popular Press

Voluntary euthanasia became legal in Quebec in December 2015,1 although the legislation is currently the subject of litigation. In addition, physician-assisted death will become legal across Canada in February 2016, barring an extension on the deadline being given by the Supreme Court of Canada. There are many questions about how physician-assisted death should be regulated. One as-yet-unanswered question is “Should physician-assisted death be recorded anywhere on the medical certificate of death?” If so, a second question follows: “How should it be recorded — as manner and/or cause?” and if the latter, “Which category of cause: immediate, antecedent or underlying?”

To …

Judging The Social Sciences In Carter V Canada (Ag), Jodi Lazare

Articles, Book Chapters, & Popular Press

This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith's careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system's use of social science evidence and expert witnesses, this paper suggests that Justice Smith's treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …

Building Labor's Constitution, Kate Andrias

Faculty Scholarship

This essay begins with a puzzle: scholars have built a robust set of constitutional claims about labor rights, claims with deep roots in the labor movement’s own past struggles and its own traditions of constitutional claim-making. Yet, workers’ movements today have made no use of these claims, Andrias reports. The reason, she suggests, has to do with the deep mutual hostility between workers’ movements and the courts. If past were prologue, workers could at least use such arguments outside the courts, but, she argues, “in our [contemporary] legal culture, constitutional arguments are primarily judicial arguments,” and have a way of …

Assessing And Achieving Jury Pool Representativeness, William Caprathe, Paula Hannaford-Agor, Stephanie Mccoy Loquvam, Shari Seidman Diamond

Faculty Publications

Lack of representativeness is evident in the courtroom, but solutions must be pursued much earlier. The Jury Management Committee of the ABA’s National Conference of State Trial Judges, with Paula Hannaford-Agor of the National Center for State Courts (NCSC), identified a series of steps judges and administrators can take to determine if the procedures used to assemble jurors result in representative jury panels and improve the representativeness of jury panels. The steps focus on (1) establishing reliable methods of measuring the demographic composition of the jury pool, (2) ensuring the inclusiveness and representativeness of the jury pool, and (3) assessing …

Deterring Innovation: New York V. Actavis And The Duty To Subsidize Competitors' Market Entry, Joanna Shepherd

Faculty Articles

This Article examines a relatively new business strategy in the pharmaceutical market -- "product hopping" or "product replacement" -- in which brand pharmaceutical companies shift their marketing efforts from a drug nearing the end of its patent period to a new, substitute drug with a longer patent life. In July 2015, the Second Circuit issued an opinion in the first appellate case addressing pharmaceutical product replacement, New York ex rel. Schneiderman v. Actavis PLC. This Article explains that product replacement is the predictable business response to the incentives created by patent law and state substitution laws, and withdrawing an …

The Long Shadow Of Bush V. Gore: Judicial Partisanship In Election Cases, Michael S. Kang, Joanna M. Shepherd

Faculty Articles

Bush v. Gore decided a presidential election and is the most dramatic election case in our lifetime, but cases like it are decided every year at the state level. Ordinary state courts regularly decide questions of election rules and administration that effectively determine electoral outcomes hanging immediately in the balance. Election cases like Bush v. Gore embody a fundamental worry with judicial intervention into the political process: outcome-driven, partisan judicial decisionmaking. The Article investigates whether judges decide cases, particularly politically sensitive ones, based on their partisan loyalties more than the legal merits of the cases. It presents a novel method …

Ip Litigation In U.S. District Courts: 1994-2014, Matthew Sag

Faculty Articles

This Article undertakes a broad-based empirical review of intellectual property ("IP") litigation in U.S. federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent, and trademark litigation trends as a unified whole. It undertakes a systematic analysis of the records of more than 190,000 cases filed in federal courts and examines the subject matter, geographical, and temporal variation within federal IP litigation over the last two decades.

This Article analyzes changes in the distribution of IP litigation over time and their regional distribution. The key findings of this Article stem from an attempt …

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Articles

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

Why Coywolf Goes To Court, Signa A. Daum Shanks

Articles & Book Chapters

This article is an effort influenced by previous works considered part of "trickster" discourse. But unlike other trickster stories meant to illustrate First Nations’ contents and processes, this presentation creates a Métis-specific example of trickster methodology and knowledge. Similar to the historic role Métis individuals have had in Canadian history, this effort contains a type of "translator" system within its citations so that the main story parallels information about trends in Canadian legal analysis. By having this format, it is hoped that those less familiar with Métis courtroom struggles will gain insight into how the pursuit of Métis constitutionalism both …

Confirm Judge Koh For The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals …