Courts Commons^™

Representing The United States Government: Reconceiving The Federal Prosecutor's Role Through A Historical Lens, Scott Ingram

Notre Dame Journal of Law, Ethics & Public Policy

For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial …

Structure And Service Delivery Approach Of The Children’S Bureau’S Resource Centers And Implementation Centers, Tammy Richards, Michelle Graef, Kathy Deserly, Peter Watson, Mark Ells

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

The Children’s Bureau (CB) provides a system of training and technical assistance (T/TA) to build the capacity of state and tribal child welfare systems, with the goal of improving outcomes for children and families. During the time period of 2008-2014, this infrastructure included ten National Child Welfare Resource Centers (NRCs), five Child Welfare Implementation Centers (ICs), and a Training and Technical Assistance Coordination Center (TTACC). Individual ICs and NRCs differed in structure and content expertise, yet they served the same jurisdictions and at times provided services concurrently. To increase cohesion and consistency, the NRCs, ICs, TTACC, and CB worked together …

How Much Has The Supreme Court Changed Patent Law?, Paul Gugliuzza

Faculty Scholarship

The U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Adjudicative Limits Of Originalism, Gary S. Lawson

Faculty Scholarship

If you conduct an online search for something like “Justice Scalia’s most important opinions” or “Justice Scalia’s most influential opinions,” you will (or at least I did) almost always end up with a list that is top-heavy with dissents. That is not surprising. Dissenting opinions gave Justice Antonin Scalia the most freedom to exercise his considerable skills as a writer and were therefore more likely to produce memorable one-liners. They were also the best occasions for him to express his views can­didly and forcefully and thus served as the best vehicles for elaboration of his jurisprudential and doctrinal positions. Majority …

Close Encounters: A Feminist Legal Theory Analysis Of The State Treatment Of Female Child Sexual Abuse Victims, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This article explores the way in which the law currently deals with sexual violence against female children in the home – evaluating the ways in which the state has access to the private realm of the family and the ways in which civil and criminal legal systems deal with this type of trauma to girls across a spectrum of time. Research shows that the child protection system only captures a small percentage of sexual abuse right after it happens. However, research also shows that female child sex abuse survivors appear in statistically significant numbers among other groups – drug and …

Recalibrating Judicial Renominations In The Trump Administration, Carl W. Tobias

Law Faculty Publications

Now that President Donald Trump has commenced the fifth month of his administration, federal courts experience 121 circuit and district court vacancies. These statistics indicate that Mr. Trump has a valuable opportunity to approve more judges than any new President. The protracted open judgeships detrimentally affect people and businesses engaged in federal court litigation, because they restrict the expeditious, inexpensive and equitable disposition of cases. Nevertheless, the White House has been treating crucial issues that mandate careful attention-specifically establishing a government, confirming a Supreme Court Justice, and keeping numerous campaign promises. How, accordingly, can President Trump fulfill these critical duties …

Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned, Dale Margolin Cecka

Law Faculty Publications

"The appellate courts of this Commonwealth are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error."

These words of Judge Humphreys, denying a 2016 child custody appeal, are cogent. Yet four months later, in another appeal, Judge Humphreys joined a unanimous decision overturning a common provision in a custody order. In Bonhotel v. Watts, the Court of Appeals of Virginia held that judges cannot delegate judicial decision making power in child custody cases to outside professionals. This sounds obvious, but such delegation is actually ordered all the time. In final orders, Virginia's trial …

Blocking The Courts: The Trump Triple Threat, Joanne Doroshow

Other Publications

No abstract provided.

The Fmla And Psychological Support: Courts Care About "Care" (And Employers Should, Too), Katherine Stallings Bailey

Michigan Law Review

The Family and Medical Leave Act (“FMLA”) recognizes an employee’s right to take leave to care for a qualifying family member. In light of the Act’s remedial nature, the intended scope of the care provision is broad, but its definitional details are sparse. As a result of the attendant interpretive discretion afforded to courts, the Seventh Circuit announced its rejection of the requirement—first articulated by the Ninth Circuit—that care provided during travel be related to continuing medical treatment. A facial analysis of the resulting circuit split fails to appreciate the fundamental difference between the Seventh and Ninth Circuits’ considerations: the …

What The Polls Produce: Why Kentucky Should Retain Nonpartisan Elective Selection Of Its Supreme Court Justices, Nolan M. Jackson

Kentucky Law Journal

No abstract provided.

Expanding Reach: The Importance Of Batson V. Kentucky Thirty Years On, Melynda J. Price J.D., Ph.D.

Kentucky Law Journal

No abstract provided.

A Call To Criminal Courts: Record Rules For Batson, Catherine M. Grasso, Barbara O'Brien

Kentucky Law Journal

No abstract provided.

Jury Simulation Goals, Jonathan J. Koehler, John B. Meixner Jr.

Scholarly Works

What are the goals that researchers who conduct jury simulations have or should have? Drawing on Pennington and Hastie (1981), we identify three primary goals: (1) develop theory, (2) describe how juries perform, and (3) improve the jury process. Where basic theory matters most, studies should be designed in ways that stress internal validity. Where describing the behaviors of real juries or persuading policy makers about changes that should be made, studies should focus on external and ecological validity as well. We urge researchers who are interested in describing jury behavior and improving the jury process to conduct ecologically valid …

Judicial Federalism In The European Union, Michael Wells

Scholarly Works

This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of …

Which Supreme Court Cases Influenced Recent Supreme Court Ip Decisions? A Citation Study, Joseph S. Miller

Scholarly Works

The U.S. Supreme Court has decided an increasing number of intellectual property cases — especially patent cases — over the last several terms. Which prior cases influence the stated reasoning in these recent Supreme Court IP cases? A handful of citation studies of supreme courts in the U.S., both state and federal, conducted over the last 40 years suggest that the Court would most often cite its own prior cases; that it would cite its more recent cases more often than its older cases; and that a small number of its prior cases would receive a large share of the …

Solomonic Judgments And The International Court Of Justice, Nienke Grossman

All Faculty Scholarship

This chapter, in a forthcoming book on legitimacy and international courts, analyzes the impact of Solomonic or "split the baby" judgments on the normative and sociological legitimacy of the International Court of Justice.

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

All Faculty Publications

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 widereaching impact for individuals who attempt to receive medical care for addiction in …

"No Ordinary Lawsuit": Climate Change, Due Process, And The Public Trust Doctrine, Michael Blumm, Mary Christina Wood

American University Law Review

On November 10, 2016, just two days after the election of President Donald Trump, the federal district court in Oregon handed down Juliana v. United States. This remarkable decision refused to dismiss a lawsuit brought by youth plaintiffs who claimed that the federal government's fossil fuel policies over the years, which have produced an atmosphere with dangerous levels of greenhouse gases (GHGs), violated the federal public trust doctrine (PTD) and their federal constitutional rights to due process and equal protection. The court found a constitutional right to a stable climate system, determining that the PTD was an implicit part of …

Second-Tier Certiorari: Adverse Precedential Effect As A Predicate For Finding A “Miscarriage Of Justice” In Government Appeals, John A. Greco

FIU Law Review

No abstract provided.

Without Explanation: Judicial Restraint, Per Curiam Affirmances, And The Written Opinion Rule, Craig E. Leen

FIU Law Review

No abstract provided.

A Cure For “Acute Motion Sickness”: A Practitioner’S Guide To Motion Practice In Florida’S Appellate Courts, Kimberly Kanoff Berman

FIU Law Review

No abstract provided.

Federal Review Of State Criminal Convictions: A Structural Approach To Adequacy Doctrine, Eve Brensike Primus

Michigan Law Review

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore …

Exploring The Intersections Between International And Domestic Justice Efforts, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Informed Misdemeanor Sentencing, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant. But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.

Under most theories of punishment, …

Trial And Error: Lawyers And Nonlawyer Advocates, Anna Carpenter, Alyx Mark, Colleen Shanahan

Faculty Articles

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …

Active Judging And Access To Justice, Anna Carpenter

Faculty Articles

"Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Protean Statutory Interpretation In The Courts Of Appeals, James J. Brudney, Lawrence Baum

Faculty Scholarship

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia.

We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative …

Human Rights In State Courts, India Thusi

Books & Book Chapters by Maurer Faculty

Human rights are among society’s most powerful ideals. The notion that all people have rights, simply by virtue of their humanity, has sparked new nations, inspired countless freedom movements, and transformed the relationship between people and their governments in places big and small around the globe. The founders of our country declared that we are all created equal and endowed with certain inalienable rights, and that opinions of other nations are entitled to “decent respect.” In the aftermath of the Holocaust and World War II, the United States helped craft the Universal Declaration of Human Rights (UDHR) and the modern …

Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an …

Doing Gloss, Curtis A. Bradley

Faculty Scholarship

It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As …