Courts Commons^™

The Soft Power Of Dissent: The Impact Of Dissenting Opinions From The Russian Constitutional Court, Alexandra V. Orlova

Vanderbilt Journal of Transnational Law

This Article poses a question regarding the importance of judicial dissents emanating from constitutional courts. It examines the power of dissents emanating from the Russian Constitutional Court, given the fact that the Russian government has invested a significant effort in suppressing dissenting voices. The very presence of dissents in the Russian Constitutional Court poses an interesting question regarding their impact on democracy, consensus building, and civil society. This Article argues that while dissents coming from the Russian Constitutional Court may not be binding, they carry a great deal of "soft power." Judicial dissents aid in challenging commonly espoused consensus both …

Is Financial Difficulty Really Enough? The Battle Of The Circuits To Define Reasonable Cause For Small Businesses' Failure To Pay Taxes, Lyndsey Insani

Valparaiso University Law Review

No abstract provided.

Senator Chuck Grassley And Judicial Confirmations, Carl Tobias

Law Faculty Publications

Iowa Republican Senator Chuck Grassley finished his second term as Chair of the Senate Judiciary Committee with the early January 2019 adjournment of the 115th Congress. He was the first nonlawyer to lead the august committee over almost 200 years. A core panel duty is moving judicial nominees through the confirmation process, which helps senators discharge their constitutional advice and consent responsibility. Because the Chair plays an integral role—Grassley fulfilled this obligation in a critical, albeit controversial, manner—and because his service as Chair has ended, it is crucial to evaluate how the lawmaker discharged that important responsibility.

This Essay initially …

President Donald Trump's War On Federal Judicial Diversity, Carl Tobias

Law Faculty Publications

In Donald Trump's 2016 presidential campaign, the candidate promised to nominate and confirm federal judges who would possess ideologically conservative perspectives. Across President Trump's first twenty-seven months, the chief executive implemented numerous actions to effectuate his campaign pledge. Indeed, federal judicial selection may be the area in which President Trump has achieved the most substantial success throughout his first twenty-seven months in office, as many of Trump's supporters within and outside the government recognize. Nevertheless, the chief executive's achievements, principally when nominating and confirming stalwart conservatives to the appellate court bench, have imposed numerous critical detrimental effects. Most important for …

The (Im)Partial Jury: A Trial Consultant’S Role In The Venire Process, Stephanie M. Coughlan

Brooklyn Law Review

Over the last four decades, trial consultants have become integral members of the venire process. Before the trial consulting field emerged, attorney-conducted voir dire focused too heavily on an attorney’s gut instincts and subconscious biases. This note highlights two concerns arising from attorney-conducted voir dire. First, in Batson v. Kentucky and its progeny, the Supreme Court addressed the unconstitutionality of a system that permits attorneys to strike jurors based on unfounded prejudices. Although Batson and its progeny prohibit lawyers from exercising discriminatory challenges against prospective jurors, this practice can easily go undetected. Second, as illustrated in Peña-Rodriguez v. Colorado, the …

Two Roads Diverged: Statutory Interpretation By The Circuit Courts And Supreme Court In The Same Cases, Lawrence Baum, James J. Brudney

Fordham Law Review

Scholars and judges have long disagreed on whether courts of appeals construing statutes ought to adapt their use of interpretive resources to Supreme Court approaches. If circuit courts and the Supreme Court approach statutory issues in similar ways, this can perhaps provide a measure of predictability for litigants and the public while conserving judicial resources; it may also enhance perceptions of fairness in the judicial system. Such normative arguments invite—even demand—a fuller understanding of the underlying descriptive reality: whether anything approaching uniformity or consistency actually exists. This Article aims to provide that understanding. It does so through an in- depth …

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20^th century when this concept transitioned from an economic and property rights based approach to one …

Forum Selling Abroad, Jens Frankenreiter, Stefan Bechtold, Daniel Klerman

Scholarship@WashULaw

Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff manipulation of …

Informal Judicial Hierarchies: Case Assignment And Chamber Composition At The European Court Of Justice, Jens Frankenreiter

Scholarship@WashULaw

Is there a rationale behind non-random case assignment at the European Court of Justice (ECJ)? I argue that the flexible system of case assignment acts as a surrogate for a full-fledged judicial hierarchy, ensuring that the decision-making of the Court reflects the preferences of the majority of judges absent many hierarchical elements commonly observed in other judicial systems. I empirically test this hypothesis using Monte Carlo simulations of the composition of chambers during the time period 2009-2012 under alternative case assignment regimes. To proxy for judicial ideology, I use information on the political preferences of appointing Member State governments vis-à-vis …

The Role Of Circuit Courts In The Formation Of United States Law In The Early Republic, David P. Waddilove

Journal Articles

The Role of Circuit Courts in the Formation of United States Law in the Early Republic: Following Supreme Court Justices Washington, Livingston, Story, and Thompson. ByDAVID LYNCH. [Portland, OR: Hart Publishing, 2018. xxi +233 pp. Hardback £70.00. ISBN 978-15-09910-85-4.]

The chosen justices were: Bushrod Washington, who served 1801–1829; H. Brockholst Livingston, 1807–1823; Joseph Story, 1811–1845; and Smith Thompson, 1823–1843.

Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter

Faculty Scholarship

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

Symposium: This Case Is Moot, Jessica Bulman-Pozen, Adam Samaha

Faculty Scholarship

Forget guns for a moment. Imagine that, once upon a time, Boca Raton had a rule that prohibited its residents from transporting their golf clubs to driving ranges outside the city. Boca’s finest golfers challenged the constitutionality of the rule in court. Now imagine that the city thought twice and repealed the rule and that Florida then passed a statute authorizing people to transport their clubs to the driving ranges of their choice. The golfers could live happily ever after.

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial …

The States Have Spoken: Allow Expanded Media Coverage Of The Federal Courts, Mitchell T. Galloway

Vanderbilt Journal of Entertainment & Technology Law

Since the advent of film and video recording, society has enjoyed the ability to capture the lights and sounds of moments in history. This innovation left courts to determine what place, if any, such technology should have inside the courtroom. Refusing to constrain the future capacity of this technology, the Supreme Court "punted" on this issue until a time when this technology evolved past its initial disruptive nature. Throughout the past forty-five years, the vast majority of state courts have embraced the potential of cameras in the courtroom and have created policies governing such use. In contrast, the federal judiciary …

What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern

Michigan Law Review

Habeas corpus petitioners must navigate the procedural barriers of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) before courts consider their petitions on the merits. Among the barriers imposed is a general prohibition on “second or successive” habeas petitions, meaning a petitioner who previously filed a habeas petition may not bring another, with limited exceptions. One such exception, recognized by the Supreme Court in Magwood v. Patterson, allows for a second habeas petition after the petitioner obtains a “new judgment.” Magwood and AEDPA, however, left the term “new judgment” undefined. This Note summarizes the history of habeas corpus in the …

National Injunctions And Preclusion, Zachary D. Clopton

Michigan Law Review

Critics of national injunctions are lining up. Attorney General Jeff Sessions labeled these injunctions “absurd” and “simply unsustainable.” Justice Clarence Thomas called them “legally and historically dubious,” while Justice Neil Gorsuch mockingly referred to them as “cosmic injunctions.” Scholars in leading law reviews have called for their demise. Critics argue that national injunctions encourage forum shopping, unfairly burden the federal government, and depart from the history of equity. They also claim that national injunctions contradict the Supreme Court’s decision in United States v. Mendoza to exempt the federal government from offensive nonmutual issue preclusion—a doctrine that permits nonparties to benefit …

Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims And Undermine International Development, Andrew T. Bulovsky

Michigan Law Review

In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time, the decision to decline jurisdiction creates a perverse incentive for host states to turn a blind eye to …

Mdl As Public Administration, David L. Noll

Michigan Law Review

From the Deepwater Horizon disaster to the opioid crisis, multidistrict litigation—or simply MDL—has become the preeminent forum for devising solutions to the most difficult problems in the federal courts. MDL works by refusing to follow a regular procedural playbook. Its solutions are case specific, evolving, and ad hoc. This very flexibility, however, provokes charges that MDL violates basic requirements of the rule of law.

At the heart of these charges is the assumption that MDL is simply a larger version of the litigation that takes place every day in federal district courts. But MDL is not just different in scale …

The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore

Michigan Law Review

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action, …

Punishment And Its Limits, Debra Parkes

All Faculty Publications

The nearly three decades in which Beverley McLachlin was a member of the Supreme Court, including as Chief Justice, witnessed a number of shifts in Canadian penal policy and in the reach and impact of criminal law. During the Harper decade (2006 to 2015) in which the federal Conservatives enjoyed a majority government led by Prime Minister Stephen Harper, criminal justice policy took a turn toward the punitive. The federal government tore a page out of the American legislative handbook and sought to “govern through crime”, albeit in a more restrained Canadian style.

Civilly Disobedient: Justifying Juror Misconduct, Grace K. Wilson

CMC Senior Theses

A fair, unbiased jury that follows the courts instructions is a crucial aspect of the American criminal justice system, mandated by both the California and United States Constitution. When jurors violate judicial instructions, it can jeopardize the impartiality of a case. Despite this, little research has been completed on what individual differences are indicative of greater willingness to commit jury misconduct. Misconduct can occur when jurors fail to follow judicial instructions in circumstances that a reasonable person may be tempted to disobey. This study explores potential individual differences that correlate with a greater likelihood of excusing and even committing juror …

Social Cost Of Carbon In Environmental Impact Assessment, Meinhard Doelle

Articles, Book Chapters, & Popular Press

While the social cost of carbon (SCC) has played a prominent role in regulatory decision-making in recent years, use in the environmental impact assessment (EIA) realm has been minimal. This article explores potential roles for SCC in EIA. Using Canada’s proposed new federal impact assessment (IA) regime as a basis, the analysis examines how a jurisdiction could employ SCC to integrate climate change considerations into project-level assessment and decision-making. Potential roles are first discussed in relation to the broad purposes of IA, before focusing on key assessment factors such as consideration of economic costs and benefits, cumulative effects, climate change …

Class Actions In Canada: The Promise And Reality Of Access To Justice, Camille Cameron

Articles, Book Chapters, & Popular Press

Class actions have found their way into the fabric of Canada’s civil justice system. Class action legislation has been in place in Ontario for 27 years and in British Columbia and Quebec for 25 and 40 years respectively. Trial and appellate courts have had many opportunities to deal with and develop the law of class actions. Notwithstanding their longevity, however, there is little qualitative and empirical research to test many of the justice claims that are made in favour of, and the criticisms that are levelled at, class actions. This is the unsettled terrain into which Professor Kalajdzic ventures. Her …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

Filling The California Ninth Circuit Vacancies, Carl Tobias

Law Faculty Publications

At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Officelabeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge AlexKozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.

Limited clarity about whether more judges will leave active service over Trump’s presidency …

Filling The New York Federal District Court Vacancies, Carl Tobias

Law Faculty Publications

President Donald Trump contends that federal appellate court appointments constitute his foremost success. The president and the United States Senate Grand Old Party (GOP) majority have compiled records by approving forty-eight conservative, young, accomplished, overwhelmingly Caucasian, and predominantly male, appeals court jurists. However, their appointments have exacted a toll, particularly on the ninety-four district courts around the country that must address eighty-seven open judicial positions in 677 posts.

One riveting example is New York’s multiple tribunals, which confront twelve vacancies among fifty-two court slots. The Administrative Office of the United States Courts considers nine of these openings “judicial emergencies,” because …

Finding Harmony: Law Society Of British Columbia V Trinity Western University, Sancho Mccann

Dalhousie Journal of Legal Studies

This case comment focuses on what the Supreme Court of Canada’s 2018 decision in Law Society of British Columbia v Trinity Western University tells us about how courts should review the discretionary decisions of administrative decision-makers for compliance with the Charter. The majority describes this as an application of the framework from Doré and Loyola, and I argue that the Court missed a chance to bring that framework into conceptual harmony with that from Oakes. The Court should be reluctant to use the framework of reasonableness and deference set out in Doré and Loyola when the decision-maker (the Law Society …

Fact Or Fiction: Flawed Approaches To Evaluating Market Behavior In Securities Litigation, Ann Lipton

Publications

Courts entertaining class actions brought under Section 10(b) of the Securities Exchange Act are required to make numerous factual judgments about the economic effects of the alleged misconduct. For example, they must determine whether and for how long publicly-available information has exerted an influence on security prices, and whether an alleged fraud caused economic harm to investors. Judgments on these matters dictate whether cases will proceed to summary judgment and trial, whether classes will be certified and the scope of such classes, and the damages that investors are entitled to collect.

Over the years, courts have developed a variety of …

Copyright Arbitrage, Kristelia A. García

Publications

Regulatory arbitrage—defined as the manipulation of regulatory treatment for the purpose of reducing regulatory costs or increasing statutory earnings—is often seen in heavily regulated industries. An increase in the regulatory nature of copyright, coupled with rapid technological advances and evolving consumer preferences, have led to an unprecedented proliferation of regulatory arbitrage in the area of copyright law. This Article offers a new scholarly account of the phenomenon herein referred to as “copyright arbitrage.”

In some cases, copyright arbitrage may work to expose and/or correct for an extant gap or inefficiency in the regulatory regime. In other cases, copyright arbitrage may …