Courts Commons^™

Lost & Found: Order In The Court -- The Party Game, Owen Gottlieb, Ian Schreiber

Presentations and other scholarship

Lost & Found is a strategy card-to-mobile game series that teaches medieval religious legal systems with attention to period accuracy and cultural and historical context.

The Lost & Found games project seeks to expand the discourse around religious legal systems, to enrich public conversations in a variety of communities, and to promote greater understanding of the religious traditions that build the fabric of the United States. Comparative religious literacy can build bridges between and within communities and prepare learners to be responsible citizens in our pluralist democracy.

The second game in the series, Lost & Found: Order in the Court …

Online Dispute Resolution: Stinky, Repugnant, Or Drab, Robert J. Condlin

Cardozo Journal of Conflict Resolution

In Part II, I provide a brief overview of ODR systems, describing the largest, most well-known, and most sophisticated platforms now in place, to give the reader a sense of the- richness, variety, and benefits of online disputing, and a hint of developments still to come. In Part III, I describe certain legal, political, and moral concerns that have yet to be addressed in the ODR literature, and identify some of the unintended consequences the widespread adoption of ODR systems might produce. And in Part IV, I describe ODR's unfinished agenda, the questions proponents of the process must answer, and …

The Use And Abuse Of Mutual-Support Programs In Drug Courts, Sara Gordon

Scholarly Works

There is a large gap between what we know about the disease of addiction and its appropriate treatment, and the treatment received by individuals who are ordered into treatment as a condition of participation in drug court. Most medical professionals are not appropriately trained about addiction and most addiction treatment providers do not have the education and training necessary to provide appropriate evidence-based services to individuals who are referred by drug courts for addiction treatment. This disconnect between our understanding of addiction and available addiction treatment has wide-reaching impact for individuals who attempt to receive medical care for addiction in …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

What Investigative Resources Does The International Criminal Court Need To Succeed?: A Gravity-Based Approach, 16 Wash. U. Global Stud. L. Rev. 1 (2017), Stuart Ford

UIC Law Open Access Faculty Scholarship

There is an ongoing debate about what resources the International Criminal Court (ICC) needs to be successful. On one side of this debate are many of the Court’s largest funders, including France, Germany, Britain, Italy, and Japan. They have repeatedly opposed efforts to increase the Court’s resources even as its workload has increased dramatically in recent years. On the other side of the debate is the Court itself and many of the Court’s supporters within civil society. They have taken the position that it is underfunded and does not have sufficient resources to succeed. This debate has persisted for years …

Private Or Public Right? Who Should Adjudicate Patentability Disputes And Is The Current Scheme Really Constitutional?, Jasmyne M. Baynard

Marquette Intellectual Property Law Review

“The patent bargain is the foundation upon which the patent system is built: in exchange for protections for an invention, the inventor agrees to make public their inventions so that others may build upon it.” The patent bargain creates a presumption of protection for the inventors, yet categorizing the patent a public right or a private right has diminished expectations for inventors and confusion for the masses. On October 11, 2016, the Supreme Court denied two petitions for writ of certiorari that challenged the constitutionality of Patent Trial and Review Board proceedings on the basis of the patent owner’s Seventh …

Status Courts, Erin R. Collins

Law Faculty Publications

This Article identifies and analyzes a new type of specialized "problemsolving" court: status courts. Status courts are criminal or quasicriminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls. They differ from other problemsolving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic "problem" to be "solved." In fact, status courts aim to honor the offender's experience and strengthen the offender's association with the characteristic used to sort him or her into court.

This Article positions …

Filling The Texas Federal Court Vacancies, Carl W. Tobias

Law Faculty Publications

Texas confronts many federal appellate and district court openings, but the situation has reached crisis proportions. The state addresses two protracted U.S. Court of Appeals for the Fifth Circuit vacancies, which have lacked nominees for multiple years, and eleven open trial court seats, all but one classified as "judicial emergencies." This conundrum persists, although the Senate confirmed three jurists for Texas district vacancies in both 2014 and 2015 and President Barack Obama submitted well qualified, mainstream nominees on five empty posts in March 2016. Texas Republican Senators John Cornyn and Ted Cruz also failed to expeditiously provide those designees' "blue …

The Supreme Court, Madhav Khosla, Ananth Padmanabhan

Faculty Scholarship

Over time, the Supreme Court of India has evolved from being a court of law to a major institutional actor in the political arena. The present chapter analyses this transition by directing external and internal lenses on the court’s functioning. The external lens reveals engagement by the Court with legislative and executive domains of governance, and the current concerns of transparency and accountability that it faces. The internal lens scrutinizes the Court’s success as a court of law and its capability to streamline the judicial process such that the judicial system lives up to the legitimate expectations of the litigant …

Finance In The Courtroom: Appraising Its Growing Pains, Eric L. Talley

Faculty Scholarship

This short essay provides an overview of the current state of finance in corporate law, emphasizing its role in a series of pending appraisal cases at the Delaware Supreme Court.

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

Democratic Experimentalism is an orientation in contemporary legal thought that draws on both the critical impulses of modernist theory and the constructive practice of postbureaucratic organization.

Some of the core ideas of Democratic Experimentalism were formulated long ago, notably by pragmatists in the John Dewey mold, but they have been elaborated in response to social developments of recent decades. A recurring challenge presented by these developments is uncertainty, by which we mean the inability to anticipate, much less to assign a probability to, future states of the world. The constellation of changes that make contemporary economies more innovative produces uncertainty …

Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs

Faculty Publications

International criminal courts carry out some of the most important work that a legal system can conduct: prosecuting those who have visited death and destruction on millions. Despite the significance of their work--or perhaps because of it--international courts face tremendous challenges. Chief among them is accurate fact-finding. With alarming regularity, international criminal trials feature inconsistent, vague, and sometimes false testimony that renders judges unable to assess with any measure of certainty who did what to whom in the context of a mass atrocity. This Article provides the first-ever empirical study quantifying fact-finding in an international criminal court. The study shines …

Separating Amicus Wheat From Chaff, Aaron-Andrew P. Bruhl, Adam Feldman

Faculty Publications

No abstract provided.

Chevron In The Circuit Courts: The Codebook Appendix, Kent Barnett, Christopher J. Walker

Michigan Law Review Online

For our empirical study on the use of Chevron deference in the federal courts of appeals, we utilized the following Codebook. This Codebook draws substantially from the codebook appended to William Eskridge and Lauren Baer’s pathbreaking study of administrative law’s deference doctrines at the Supreme Court. Our research assistants and we followed the instructions below when coding judicial decisions. To address questions as they arose and to ensure consistent coding, we maintained close contact with each other and our research assistants throughout the project and clarified the Codebook to address additional issues. Further details concerning our methodology (and its limitations) …

The New New Courts, Orna Rabinovich-Einy, Ethan Katsh

American University Law Review

In this Article we describe the phenomenon of online courts, which is fast gaining momentum, and analyze these "new new courts" from an access to justice perspective. We distinguish between two turning points in terms of access to justice and courts: the rise of alternative dispute resolution (ADR) (producing what we refer to as the "new courts") and the spread of online dispute resolution (ODR) (giving rise to what we refer to as the "new new courts"). While both developments seem to be motivated by similar rationales and a desire to increase access to justice, the implications of adopting ADR …

Seen And Heard: A Defense Of Judicial Speech, Dmitry Bam

Faculty Publications

Judicial ethics largely prohibits judges from engaging in political activities, including endorsing or opposing candidates for public office. These restrictions on judicial politicking, intended to preserve both the reality and the appearance of judicial integrity, independence, and impartiality, have been in place for decades. Although the Code of Conduct for United States Judges does not apply to the Supreme Court, Supreme Court Justices have long followed the norm that they do not take sides, at least publicly, in partisan political elections. And while elected state judges have some leeway to engage in limited political activities associated with their own candidacy," …

Judge Gorsuch And Johnson Resentencing (This Is Not A Joke), Leah M. Litman

Michigan Law Review Online

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence. The case concerns an issue on which the courts of appeals disagree, so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably …

The Life And Legacy Of Chief Judge Lawrence H. Cooke: "Truly An Exemplary Life. A Life Well Lived", Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

It is an appropriate tribute to the late Chief Judge of New York, Lawrence H. Cooke, that this article be devoted to a man who many leaders of the bench, bar, and academia consider to be the greatest jurist to ever serve on New York State's highest court. Chief Judge Cooke, better known as Larry, served with honor and distinction as an associate judge of the Court of Appeals, and later as Chief Judge.

An Empirical Study Of China's Change-Of-Venue System In Anti-Corruption Litigation: Implications For Anti-Corruption Reform, Jinting Deng

Maurer Theses and Dissertations

Presenting the first empirical study of the change-of-venue (COV) system in Chinese corruption cases, this dissertation assesses the role of the COV system in China’s anti-corruption campaign. Although COV is routinely triggered in Chinese corruption cases, COV remains understudied and poorly understood. Scholars, judges, and practitioners expected that the COV system would increase sentences by removing defendants from the jurisdictions of local judges where they would benefit from bias and cronyism. However, this dissertation’s empirical findings – from an analysis of over 800 corruption cases in Beijing – indicate that, after accounting for other variables, sentences for corruption did not …

The Effect Of Bankruptcy Stay On A Subsequently Filed Appeal, Heather Kolinsky

UF Law Faculty Publications

No abstract provided.

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

Indiana Law Journal

This Article canvasses Myra Selby’s dynamic professional record, the federal judicial selection process under President Obama, and the Seventh Circuit. It ascertains that Selby is an exceptionally competent, mainstream prospect and that the appellate court requires all of its members to deliver justice. However, Republican senators did not collaborate, particularly after they had captured a Senate majority—a circumstance that this presidential election year aggravates. The last section, therefore, proffers recommendations for Selby’s prompt Senate consideration and confirmation.

How Conservative Justices Are Undertermining Our Democracy (Or What's At Stake In Choosing Justice Scalia, Alan E. Garfield

Indiana Law Journal

In this essay, Professor Garfield contends that the conservative justices on the Supreme Court have allowed elected officials to manipulate laws to entrench themselves in office and to disenfranchise voters who threaten their power. The justices’ unwillingness to curb these abuses has largely redounded to the benefit of the Republican Party because Republicans control the majority of state legislatures and have used this power to gerrymander legislative districts and to enact voter‑suppressive laws such as voter ID laws. With Justice Antonin Scalia’s unexpected passing during the administration of a Democratic president, the conservatives’ control of the Court has been put …

Intangible Fish And The Gulf Of Understanding: Yates V. United States And The Court's Approach To Statutory Interpretation, John M. Garvin

Indiana Law Journal

Is a fish a tangible object? The answer in most cases is obviously “yes.” But in Yates v. United States, the Supreme Court held that fish are outside the meaning of the phrase “tangible object” as it is used in the Sarbanes–Oxley Act of 2002. This Note argues that the Yates decision provides a lens with which to examine the Court’s contemporary methods of statutory interpretation. In adopting the textualist vocabulary most famously associated with the late Justice Scalia, the Justices have committed to speaking the same language. Still, fundamental differences between the Justices remain. These differences expose the …

The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

Federalism is still a relevant and vital aspect of Canadian Constitutional Law. Although a lower profile aspect than the Charter of Rights and Aboriginal rights (and in common parlance less "sexy"), the division of powers continues to an important part of the work of the Supreme Court of Canada and part of what defines us as a nation. The author argues that the Supreme Court has pursued an increasingly contextualized approach to division of powers issues - one that abandons the arid legalism of earlier days, in favour of a broad social analysis of issues based on extensive use of …

Confirming Judge Restrepo To The Third Circuit, Carl W. Tobias

Law Faculty Publications

From the moment that the Grand Old Party (GOP) won the Senate in November 2014, Republicans have directly and incessantly vowed to establish “regular order” in the upper chamber again. Lawmakers employed this phrase to depict the purported restoration of strictures that prevailed until Democrats subverted them. In January 2015, when the 114th Congress began, Senator Mitch McConnell (R-Ky.), the Majority Leader, proclaimed, “[w]e need to return to regular order,” while the legislator has dutifully recited that mantra ever since. Senator Charles Grassley (R-Iowa), the head of the Senate Judiciary Committee, espoused analogous concepts. Illustrative was his January 2015 pledge …

Filling The Seventh Circuit Vacancies, Carl W. Tobias

Law Faculty Publications

In January 2016, President Barack Obama nominated Donald Schott and Myra Selby for empty judicial positions on the United States Court of Appeals for the Seventh Circuit. Schott is a very talented practitioner, who has efficaciously served as a well-respected partner of a major law firm for greater than thirty years. For instance, Schott has professionally worked on numerous complicated federal suits and a plethora of complex actions, many of which efforts concluded with alternative dispute resolution. Selby is concomitantly an exceptional lawyer, who has compiled a distinguished record in the public and private sectors. For example, the compelling prospect …

Nominate Judge Koh To The Ninth Circuit Again, Carl W. Tobias

Law Faculty Publications

During February 2016, President Barack Obama nominated United States District Judge Lucy Haeran Koh to a “judicial emergency” vacancy on the United States Court of Appeals for the Ninth Circuit. She has capably served over multiple years in the Northern District of California competently deciding numerous high-profile lawsuits, specifically regarding intellectual property. Accordingly, the President’s efforts to confirm her were unsurprising. However, 2016 was a presidential election year when judicial nominations traditionally slow and ultimately halt. This difficulty was exacerbated when Republicans consistently refused to implement any confirmation process for United States Court of Appeals for the District of Columbia …

Sovereignty And Social Change In The Wake Of India's Recent Sodomy Cases, Deepa Das Acevedo

Faculty Articles

American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest litigation can be returned …

Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai

Articles & Book Chapters

Large parts of Canada, from Ontario to parts of British Columbia and north to the Northwest Territories, are covered by the “numbered treaties”, signed between First Nations and the Crown between 1871 and 1929. These treaties provide for the continuation of Indigenous hunting, fishing and harvesting activities until the land is “taken up” by the provincial Crown for activities such as mining, lumbering and settlement. This draft book chapter argues that consent of First Nations should be required before further development that impact on their harvesting rights. The consent standard has already been widely adopted in the private sector both …