Courts Commons^™

Court Capture, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …

A Reflection On The Ethics Of Movement Lawyering, Susan Carle, Scott L. Cummings

Scholarly Articles in Law Reviews & Journals

This essay takes a new look at legal ethics issues salient to "movement lawyers" who maintain a sustained commitment to social movement goals and collaborate with social movement organizations over time to achieve them. The essay provides a historical overview of movement lawyering, tracing its development to current practice in which movement lawyers work in collaboration with mobilized social movement groups, though not always in traditional lawyer-client relationships. As this analysis reveals, contemporary movements employ a sophisticated array of strategies, which may pull lawyers away from traditional representation paradigms. We argue that the legal ethics literature on movement lawyering must …

Who Will Judge The Many When The Game Is Through: Considering The Profound Differences Between Mental Health Courts And Traditional Involuntary Civil Commitment Courts, Michael L. Perlin

Articles & Chapters

This paper is an expansion of a presentation given by the author at the annual Therapeutic Jurisprudence Workshop at Osgoode Hall Law School, York University, Toronto, Ontario, Canada, October 15, 2016. There is a developing robust literature about mental health courts (MHCrts) in the United States, and researchers have begun to focus on a broad range of empirical issues, such as the extent to which defendants are competent to waive their trial rights in such settings, the significance of diversion, etc. Also, advocates and other scholars have engaged in vigorous debates about the value of these courts, and the extent …

Trouble Counting To Three: Circuit Splits And Confusion In Interpreting The Prison Litigation Reform Act's Three Strikes Rule, 28 U.S.C. Sec. 1915(G), Molly Guptill Manning

Articles & Chapters

No abstract provided.

Studying The "New" Civil Judges, Anna Carpenter, Jessica Steinberg, Colleen Shanahan, Alyx Mark

Faculty Articles

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Articles by Maurer Faculty

No abstract provided.

Increasing Transparency In The Us Tax Court, Leandra Lederman

Articles by Maurer Faculty

Transparency is a widely accepted judicial norm because it increases accountability. Access to U.S. Tax Court documents has long differed from access to the documents of other courts. For example, the Tax Court does not participate in PACER (Public Access to Court Electronic Records). This essay discusses some of the ways in which access to Tax Court documents has been restricted; areas in which the Tax Court has increased transparency over the years; upcoming changes; and where increased transparency is still needed, such as with respect to case statistics.

Politics, Power Dynamics, And The Limits Of Existing Self-Regulation And Oversight In Icc Preliminary Examinations, Asaf Lubin

Books & Book Chapters by Maurer Faculty

Professor Lubin's contribution to volume 2 is titled, "Politics, Power Dynamics, and the Limits of Existing Self-Regulation and Oversight in ICC Preliminary Examinations," pp. 77-150.

Should the normative framework that governs the International Criminal Court’s (‘ICC’) oversight concerning preliminary examinations undergo a reform? The following chapter answers this question in the affirmative, making the claim that both self-regulation by the Office of the Prosecutor (‘OTP’) and quality control by the Pre-Trial Chamber (‘PTC’) currently suffer from significant deficiencies, thus failing to reach the optimum point on the scale between absolute prosecutorial discretion and absolute control. The chapter demonstrates some of …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural and …

Expanding The Search For America's Missing Jury, Richard Lorren Jolly

Michigan Law Review

A review of Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries.

Delaware's Retreat: Exploring Developing Fissures And Tectonic Shifts In Delaware Corporate Law, James D. Cox, Randall S. Thomas

Faculty Scholarship

No abstract provided.

Erie As A Way Of Life, Ernest A. Young

Faculty Scholarship

No abstract provided.

Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs

Faculty Scholarship

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States lack a constitutional immunity …

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme

Faculty Scholarship

Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, such as enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.

The Supreme Court’s recent decision in TC Heartland v. Kraft Foods illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically measure …

Strategic Publication, Ben Grunwald

Faculty Scholarship

Under the standard account of judicial behavior when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.

This Article argues that a divided panel has a third option: strategic publication. The panel can choose …

Cumulative Finality, Bryan Lammon

Georgia Law Review

A proper notice of appeal is a necessary first step in
most federal appeals. But federal litigants sometimes
file their notice of appeal early, before district court
proceedings have ended. When those proceedingsfinally
end and no new notice is filed, the law of cumulative
finality determines what effect-if any-the premature
notice has. Sometimes the notice is effective and the
appeal proceeds as normal. Sometimes it's not, and
litigants lose their right to appeal.
At least, that's how the law of cumulative finality looks
from a distance. Up close, the courts of appeals are
hopelessly divided on matters of cumulative finality. …

A Single Symbolic Dollar: How Nominal Damages Can Keep Lawsuits Alive, Megan E. Cambre

Georgia Law Review

The Eleventh Circuit's August 2017 opinion in
Flanigan's Enterprises v. City of Sandy Springs
deepened a circuit split regarding the role of
nominal damages in the justiciabilityanalysis. The
critical question is whether, in cases involving
constitutional violations, a claim for nominal
damages alone suffices to confer standing or to
defeat mootness when other forms of relief are
unavailable or moot. The Second, Fifth, and Ninth
Circuits have all held that nominal damages alone
are enough, but not without contention from
dissenting judges. The First, Third, Fourth,
Seventh, Eighth, and D.C. Circuitshave considered
the question-but have not conclusively decided its
answer. …

Bailing On Bail: The Unconstitutionality Of Fixed, Monetary Bail Systems And Their Continued Use Throughout The United States, Margaret E. Margaret

Georgia Law Review

Incarceratingdefendants prior to trial was designed to be
the exception, not the norm. Many state and local
jurisdictionsthroughout the United States, however, employ
fixed, monetary bail systems that result in the systematic pre-
trial incarceration of indigent defendants solely because of
their inability to pay for their release. Not only do such bail
systems violate indigent defendants' constitutional rights,
they also contribute to the billions spent by local governments
each year on maintainingovercrowded jails and have lasting
effects on those indigent defendants wrongfully detained.
This Note explores the constitutionalityof fixed, monetary
bail systems through the lens of a recent Georgiacase, …

Twitter And The #So-Calledjudge, Elizabeth G. Thornburg

SMU Law Review

Two-hundred-eighty characters may be insufficient to deliver a treatise on the judiciary, but it is more than enough to deliver criticism of the third branch of government. Today, these tweeted critiques sometimes come not from the general public but from the President himself. Attacks such as these come at a challenging time for court systems. We live in a highly politicized, polarized society. This polarization is reflected in attitudes toward the courts, particularly the federal courts. Unfortunately, public doubts about the court system come at a time when public understanding of the structure of government, and especially the court system, …

Adaptation Nation: Three Pivotal Transitions In American Law & Society Since 1886, Mariano-Florentino Cuéllar

Oklahoma Law Review

No abstract provided.

Waiver, Work Product, And Worry: A Case For Clarifying The Waiver Doctrine In Oklahoma, Mitchell B. Bryant

Oklahoma Law Review

No abstract provided.

Combating Prosecutorial Misconduct In Closing Arguments, Michael D. Cicchini

Oklahoma Law Review

No abstract provided.

President Donald Trump And Federal Bench Diversity, Carl W. Tobias

Law Faculty Publications

President Donald Trump constantly reminds United States citizens about the myriad circuit and district court appointments that his White House is making to the federal judiciary. Last September, Trump proposed the seventh “wave,” which included three people of color among sixteen judicial nominees. This wave permitted the administration to triple the number of ethnic minority picks whom it had selected, which means that the Executive Branch has proffered ten persons of color in appeals court and district court submissions, yet none is a lesbian, gay, bisexual, or transgender (LGBT) individual. Nevertheless, a problematic pattern, which implicates a stunning lack of …

Without Evidence: Joel Richard Paul’S John Marshall, Kevin C. Walsh

Scholarly Articles

John Marshall—soldier, lawyer, legislator, statesman, and fourth chief justice of the United States—led a long public life that spanned from the American Revolution to the rise of Jacksonian democracy. Joel Richard Paul’s full-length biography takes the reader from Marshall’s birth on the Virginia frontier in 1755, to his death in 1835 at the head of an American judiciary that had gained significantly in power and respect because of Marshall’s leadership over the preceding 34 years.

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …

Celebrating Mundane Conflict, Deborah J. Cantrell

Publications

This Article interrogates the dominant conception of conflict and challenges the narrative of conflict as hard, difficult and painful to engage. The Article reveals two primary framing errors that cause one to misperceive how ubiquitous and ordinary is conflict. The first error is to misperceive conflict as categorical — something either is a conflict or it is not. People make that error as a way of trying to avoid conflict. People falsely hope that there might be a category of “not conflict,” like disagreements, that will be easier to navigate. The second error is to misperceive the world and individuals …

Dethroning The Hierarchy Of Authority, Amy J. Griffin

Publications

The use of authority in legal argument is constantly evolving—both the types of information deemed authoritative and their degree of authoritativeness—and that evolution has accelerated in recent years with dramatic changes in access to legal information. In contrast, the uncontroversial and ubiquitous “hierarchy of authority” used as the cornerstone for all legal analysis has remained entirely fixed. This article argues that the use of the traditional hierarchy as the dominant model for legal authority is deeply flawed, impeding a deeper understanding of the use of authority in legal argument. Lawyers, judges, and academics all know this, and yet no scholarly …

Commentary, Improving The Quality And Consistency Of Copyright Infringement Analysis In Music, Kristelia A. García

Publications

No abstract provided.

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Articles, Chapters in Books and Other Contributions to Scholarly Works

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts.Our understanding of civil justice is based primarily on federal litigationand the decisions of appellate judges. Staggeringly little legalscholarship focuses on state courts and judges. We imply do not know what mostjudges are doing in their day-to-day courtroom roles or in their roles asinstitutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the …

Feminist Judging Matters: How Feminist Theory And Methods Affect The Process Of Judgment, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The word “feminism” means different things to its many supporters (and undoubtedly, to its detractors). For some, it refers to the historic struggle: first to realize the right of women to vote and then to eliminate explicit discrimination against women from the nation's laws. For others, it is a political movement, the purpose of which is to raise awareness about and to overcome past and present oppression faced by women. For still others, it is a philosophy--a system of thought--and a community of belief centering on attaining political, social, and economic equality for women, men, and people of any gender. …