Courts Commons^™

How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon

Pepperdine Law Review

Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases …

The Pirate’S Code: Constitutional Conventions In U.S. Constitutional Law, Mark Tushnet

Pepperdine Law Review

A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions’ erosion has been accompanied by …

What Are The Judiciary’S Politics?, Michael W. Mcconnell

Pepperdine Law Review

What are the politics of the federal judiciary, to the extent that the federal judiciary has politics? Whose interests do federal judges represent? This Essay puts forward five different kinds of politics that characterize the federal judiciary. First, the federal judiciary represents the educated elite. Second, the federal judiciary represents past political majorities. Third, the federal judiciary is more politically balanced than the legislative or executive branches. Fourth, the federal judiciary is organized by regions, and between those regions there is significant diversity. Fifth, to the extent that the judiciary leans one way or the other, it leans toward the …

Better Briefs, Lydia Fearing

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate in its conclusion …

The Right To An Independent Judiciary And The Avoidance Of Constitutional Conflict: The Burger Court’S Flawed Reasoning In Chandler V. Judicial Council Of The Tenth Circuit And Its Unfortunate Legacy, Joshua E. Kastenberg

St. Mary's Journal on Legal Malpractice & Ethics

In 1970, the United States Supreme Court issued Chandler v. Judicial Council of the Tenth Circuit in which five Justices determined that the federal courts of appeals possessed an administrative authority to manage the district court judges within an appellate court’s respective circuit. The decision enabled the Tenth Circuit to decide the fitness of a judge to preside over cases without a formal motion from a litigant. Although Congress had enabled the courts of appeals to oversee basic judicial functions (such as temporarily assigning district court judges to overworked districts), Congress did not intend to grant the power to remove …

Brief Of Amici Curiae Intellectual Property Law Professors, John A. Conway, Mark Mckenna

Court Briefs

No. 18S-CQ-00134
Akeem Daniels v. Fanduel, Inc., Case No. 17-3051, The Honorable Judge Easterbrook, Circuit Judge

From the Summary of Argument

Untethered to a sufficient public policy interest, right of publicity claims have exploded nationwide. Plaintiffs have asserted claims against inspirational plaques featuring civil rights icons, Rosa and Raymond Parks Inst. for Self Dev. v. Target Corp., 812 F.3d 824 (11th Cir. 2016),artwork commemorating significant events, Moore v. Weinstein Co., LLC, 545 Fed. App’x. 405 , 407 (6th Cir. 2013); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003), Wikipedia edits that truthfully connected an astronaut with …

Improving Access To Justice Via Technology, Fredric I. Lederer

Popular Media

No abstract provided.

General Jurisdiction Over Corporate Defendants Under The Cjpta: Consistent With International Standards?, Catherine Walsh

Osgoode Hall Law Journal

“General jurisdiction” refers to a court’s competence to adjudicate disputes arising out of a defendant’s activities anywhere in the world. Absent consent or submission, international instruments reserve general jurisdiction over corporations to the states in which the corporation has its registered office, centre of administration, or principal place of business. The bases of general jurisdiction under the Court Jurisdiction and Proceedings Transfer Act (CJPTA) are far broader and include simply having a place of business in the forum or even registering to carry on business there. This article locates the conceptual roots of the CJPTA approach in the traditional common …

Judicial Jurisdiction In Canada: The Cjpta—A Decade Of Progress, Janet Walker

Osgoode Hall Law Journal

In 2016, the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) marked its tenth year in force. Promulgated by the Uniform Law Conference of Canada, and adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA was developed to clarify and advance the law of judicial jurisdiction. In a symposium hosted by Osgoode Hall Law School, ten leading scholars were invited to present papers on specific questions in order to assess the promise of the CJPTA to meet the needs of Canadians in the years ahead and to provide leadership for the law in other parts of Canada. This article provides …

Three Objections To Forum Of Necessity: Global Access To Justice, International Criminal Law, And Proper Party, Sagi Peari

Osgoode Hall Law Journal

In civil procedure, the plaintiff is the one who initiates the litigation process. In which forum can he or she initiate this process? In very general terms, the Canadian rules of judicial jurisdiction provide the plaintiff with three options for jurisdiction acquisition. First, the jurisdiction can be acquired based on explicit agreement between the plaintiff and the defendant as to the identity of the forum to adjudicate the case. Second, the plaintiff can initiate the litigation in the forum that has the so-called “real and substantial connection” between it and the parties’ specific interaction under the given ground of liability …

Has The Cjpta Readied Canada For The Hague Choice Of Court Convention?, Geneviève Saumier

Osgoode Hall Law Journal

This paper examines whether the Court Jurisdiction and Proceedings Transfer Act has readied Canada to adopt the 2005 Hague Choice of Court Convention. Reviewing the Hague Convention as well as previous and current law and cases on forum selection clauses in common law Canada, including the very recent Supreme Court of Canada decision in Douez v Facebook, yields two conclusions. First, there are existing interpretive challenges flowing from gaps in the CJPTA with respect to jurisdictional clauses that need to be addressed. Second, the principles governing forum selection clauses in Canada are largely consistent with those put forward in the …

Residual Discretion: The Concept Of Forum Of Necessity Under The Court Jurisdiction And Proceedings Transfer Act, Michael Sobkin

Osgoode Hall Law Journal

Under section 6 of the CJPTA, a court may hear a case for which it lacks territorial competence under the statute if it is satisfied that: (1) there is no other court outside the province in which the plaintiff can commence the proceeding; or (2) the commencement of the proceeding outside the province cannot reasonably be required. Courts in provinces that have not enacted the CJPTA have grafted a similar discretion on to the common law rules of jurisdiction. This article seeks to determine the intentions of the drafters of the CJPTA in providing for this power and to discuss …

The Court Jurisdiction And Proceedings Transfer Act And The Hague Conference’S Judgments And Jurisdiction Projects, Joost Blom

Osgoode Hall Law Journal

The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia, and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must …

Jurisdiction Motions And Access To Justice: An Ontario Tale, Gerard J. Kennedy

Osgoode Hall Law Journal

This article investigates the access to justice concerns surrounding jurisdiction motions in Ontario, having analyzed one hundred and forty-seven jurisdiction motions decided in Ontario between 2010 and 2015. The author challenges the previously expressed view that jurisdiction motions are presently being “abused” by defendants and their counsel. He also suggests that trends in jurisdiction motions this decade point to some improvement from an access to justice perspective. Nonetheless, jurisdiction motions are frequently presenting an impediment to access to justice, with uncertainty in the law likely being the primary reason for this. The author considers potential proposals to address the access …

Cross-Border Transfers Of Court Proceedings, Vaughan Black

Osgoode Hall Law Journal

The Court Jurisdiction and Proceedings Transfer Act might easily have been two statutes rather than one. There could have been a pair of uniform acts, one delineating the territorial competence of the provinces’ superior courts and the other implementing a regime for the cross-border transfer of court proceedings. After all, these two matters are neither logically interdependent nor especially tightly linked. Part 3 of the CJPTA, dealing with transfers of proceedings, is not confined to lawsuits where the initial court takes jurisdiction under Part 2. It applies regardless of whether the initial court bases its jurisdiction on the CJPTA or …

Six Of One, Half A Dozen Of The Other? Jurisdiction In Common Law Canada, Stephen G.A. Pitel

Osgoode Hall Law Journal

This short article considers the central differences in the law on taking jurisdiction in civil and commercial disputes between those common law provinces that have implemented a statute on jurisdiction (British Columbia, Nova Scotia, and Saskatchewan) and those common law provinces that rely on the common law (Alberta, Ontario, and others). It focuses on the distinction between presence and ordinary residence, the role and analysis of presumptive connecting factors for taking jurisdiction, and issues related to immovable property.

Assessing The Impact Of Unilingualism At The Supreme Court Of Canada: Panel Composition, Assertiveness, Caseload, And Deference, Jean-Christophe Bédard-Rubin, Tiago Rubin

Osgoode Hall Law Journal

This paper is a first empirical foray in the debate concerning mandatory bilingualism for Supreme Court judges in Canada. The paper summarizes the main arguments, discusses the framing of bilingualism as a “legal” or an “identity” requirement, and uses empirical data to assess whether unilingualism has had an impact on four dimensions of the decision-making process at the Supreme Court of Canada: panel composition, assertiveness, individual caseloads and deference towards lower courts by unilingual and bilingual judges. Our results suggest that there is a correlation between the fluency in French and the first three elements but that there is no …

Policy Considerations And Implications In United States V. Bryant, Jessica Larsen

Northwestern Journal of Law & Social Policy

No abstract provided.

The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska

William & Mary Bill of Rights Journal

You, too, can sue Donald Trump under the Emoluments Clause!

Since Inauguration Day, several lawsuits have been filed against President Trump because of his refusal to divest certain assets. They assert that Trump’s business interests conflict with the Emoluments Clause of Article I. That arcane provision forbids certain federal officials from accepting any perquisite or gain from a foreign monarch or state. The suits contend, for example, that a foreign dignitary’s booking of a room at the Trump International Hotel in Washington, D.C. would constitute an unlawful emolument.

Most commentators quickly threw cold water on the prospect of any plaintiff …

What U.S Defense Attorneys Know About Facial Composites, Marisa H. Jaross

Student Theses

The Innocence Project’s DNA exoneration database (2018) indicates that approximately 27% of wrongful conviction cases containing eyewitness evidence also included a composite or sketch[1] of the perpetrator. This statistic is alarming, given that composites are rarely used in criminal investigations (PERF, 2013), but not surprising considering “good” composites are notoriously difficult to construct (e.g., Wells, Charman, & Olson, 2005). It is well understood that eyewitness evidence can be particularly persuasive evidence of guilt for juries and thus we were interested in learning more about how defense attorneys prepare for trial with respect to this specific type of eyewitness evidence. …

Opinions In Context: An Exploration Of The Rhetoric Used By Supreme Court Justices Antonin Scalia And Ruth Bader Ginsburg Regarding The Separation Of Church And State, Catherine Evans

Senior Honors Projects, 2010-2019

Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg represented opposite ends of the political spectrum on the Court, having been appointed by presidents from different parties. Their opinions on cases revolving around the interpretation of separation of church and state do/did not occur within a vacuum, and this paper examines both the context surrounding these opinions and rhetoric of the opinions themselves, closing with a discussion of the former’s effect on the latter. Specifically, four cases (two for each) from the beginning and end of the justices’ careers will be analyzed: Capitol Square Review and Advisory Board v. Pinette …

Discretionary Gatekeeping: The Us Supreme Court's Management Of Its Original Jurisdiction Docket Since 1961, Vincent L. Mckusick

Maine Law Review

There is a special drama when a state sues another state invoking the original jurisdiction of the Supreme Court of the United States. In the international arena, similar disputes between sovereign states would be settled through diplomatic negotiations or armed conflict, and the stakes in the Supreme Court trial are often as high as in international disputes. The same special drama attends a trial in the Supreme Court with the United States opposing one or more of the fifty States. In drafting Article III of the Constitution the Founders treated the states as quasi-sovereigns and, to match the dignity of …

Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall

Maine Law Review

In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often …

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …

Five Years Under The Veterans Judicial Review Act: The Va Is Brought Kicking And Screaming Into The World Of Meaningful Due Process, Lawrence B. Hagel, Michael P. Horan

Maine Law Review

I have been asked to give you the “veterans' perspective” on whether the Court of Veterans Appeals has served the purpose for which it was created by Congress and also to describe what additional steps the court might take to further the ends desired by veterans. This is no easy task. It is difficult not because I do not have a lot to say. It is difficult because it is a charge to speak, in a sense, for all veterans. In order to understand what I mean, I think it may be helpful to give you a little background on …

The Impact Of Judicial Review On The Department Of Veterans Affairs' Claims Adjudication Process: The Changing Role Of The Board Of Veterans' Appeals, Charles L. Craigin

Maine Law Review

In a March 1992 statement submitted to the Congress, the Deputy Secretary of Veterans Affairs described the impact of judicial review on the Department of Veterans Affairs (Department or VA) as “profound.” That description is still apt and applies with as much force to the Board of Veterans' Appeals (Board or BVA) as it does to the Department as a whole. Nothing has had as much impact on the Board as the Veterans' Judicial Review Act (VJRA). The VJRA established the United States Court of Veterans Appeals in 1988 and charged it with the review of decisions of the Board. …

Jurisdiction Of The United States Court Of Veterans Appeals: Searching Out The Limits, Frank Q. Nebeker

Maine Law Review

I have been asked to talk to you about the United States Court of Veterans Appeals-specifically, challenges and trends in defining the scope of the court's jurisdiction. As a brand-new court, and one without any antecedent, the court began to establish precedent to deal with all aspects of its jurisdiction. In fact, it is still very much in the process of setting such precedent. For the first time, the court brought the principle of stare decisis to the veterans' community. The principle required considerable readjustment within the Department of Veterans Affairs (Department or VA). The VA's regional offices and the …

Introductory Remarks, Donald N. Zillman

Maine Law Review

I am very pleased to welcome this distinguished company to the University of Maine School of Law and to Portland. I thank Chairman Cragin for bringing such a distinguished group to his law school. I thank the Maine Law Review for taking the sponsor's role and for insuring that the publication of our proceedings will take our thoughts far beyond this room. My interest in military law and veterans law as participant and scholar extends over the last twenty years. And so, when Chairman Cragin broached the idea of a conference to provide the first assessment of how the “new …

Pena-Rodriguez V. Colorado: Elevating A Constitutional Exception Above The Tanner Framework, Caroline Covington

Maryland Law Review

No abstract provided.