Courts Commons^™

A Workable Substantive Due Process, Timothy M. Tymkovich, Joshua Dos Santos, Joshua J. Craddock

Notre Dame Law Review

In this Article, we have three objectives. First, we’d like to add our own conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways— to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. …

A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick

Notre Dame Law Review

Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of …

Certification Comes Of Age: Reflections On The Past, Present, And Future Of Cooperative Judicial Federalism, Kenneth F. Ripple, Kari Anne Gallagher

Notre Dame Law Review

In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification. This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?

Beyond these questions, this Article also will look at how certification has expanded beyond …

Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder

Notre Dame Law Review

This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.

Brief Of The Boston University Center For Antiracist Research As Amicus Curiae In Support Of Petitioner In Larry Thompson V. Police Officer Pagiel Clark, Shield #28472; Police Officer Paul Montefusco, Shield #10580; Police Officer Phillip Romano, Shield #6295; Police Officer Gerard Bouwmans, Shield #2102, Respondents, Angela Onwuachi-Willig, Jasmine Gonzales Rose, Neda Khoshkhoo, Caitlin Glass

Faculty Scholarship

INTEREST OF AMICUS CURIAE

The Boston University Center for Antiracist Research (the “Center”) is a nonpartisan, nonprofit university-based research institution that convenes researchers, scholars, and policy experts across disciplines to find novel and practical ways to understand, explain, and solve seemingly intractable problems of racial injustice and inequity. The Center’s interest in this case arises from its expertise in researching and understanding the harms of policies, practices, and actions that produce and sustain racial inequities, and in advancing antiracist alternatives that promote racial equity.

The Second Circuit’s interpretation of the so-called “favorable termination rule,” which imposes an “indications-of-innocence” standard, is …

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would …

Rewriting Judicial Recusal Rules With Big Data, Raymond J. Mckoski

Utah Law Review

Big data affects the personal and professional life of every judge. A judge’s travel time to work, creditworthiness, and chances of an IRS audit all depend on predictive algorithms interpreting big data. A client’s choice of counsel, the precise wording of a litigant’s motion, and the composition of the jury may be dictated by analytics. Touted as a means of bringing objectivity to judicial decision-making, judges have employed big data to determine sentences and to set the amount of restitution in class action cases. Unfortunately, the legal profession and big data proponents have ignored one perplexing problem begging for a …

Revisiting And Confronting The Federal Judiciary Capacity "Crisis": Charting A Path For Federal Judiciary Reform, Ryan Vacca, Peter S. Menell

Faculty Publications

The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next seventy years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid- 1960s, jurists, scholars, practitioners, and policy-makers had voiced grave concerns about the capacity of the federal system to function effectively in the face of ever-increasing caseloads.

Heeding calls for reform, in 1972 Congress charged a commission chaired by Senator Roman Hruska to study the functioning of the federal courts and recommend reforms. After extensive study, the Hruska …

Fixing The Problem Of Incompetent Defense Counsel Before The International Criminal Court, Matthew Catallo

Michigan Journal of International Law

Throughout the latter half of the twentieth-century, defense counsel arguing before international criminal tribunals provided notoriously ineffective assistance. This note examines whether defense counsel similarly fail to provide competent assistance at the International Criminal Court––and if they do so for similar reasons. In examining the ICC’s procedural and regulatory framework, this note highlights the systemic inequities at the Court that favor the prosecution and devalue the defense, thereby hindering the acquisition of competent defense counsel and promoting the retention of incompetent defense counsel.

To address these iniquities, this note promotes various administrative reforms, all of which could be implemented without …

What Probate Courts Cite: Lessons From The New York County Surrogate’S Court 2017-2018, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

By knowing what a judge cites, one may better understand what the judge believes is important, how the judge understands her work will be used, and how the judge conceives of the judicial role. Empirical scholars have devoted serious attention to the citation practices and patterns of the Supreme Court of the United States, the United States Courts of Appeals, and multiple state supreme courts. Remarkably little is known about what probate courts cite. This Article makes three principal claims — one empirical, one interpretative, and one normative. This Article demonstrates through data, derived from a study of all decrees …

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

St. Mary's Law Journal

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

Reflections On The Influence Of Social Media On Judging, Peter D. Lauwers Justice

Canadian Journal of Law and Technology

This essay examines the influence of social media on judging. While the ethical implications of judges’ engagement in social media have received some scholarly attention, the actual influence of social media on judging has not.1 But it is possible to make some useful observations that might at once seem obvious and disquieting.

This essay is divided into four parts. Part 1 describes the normative judicial disposition. Part 2 examines the psychology of judging. Part 3 asks what could go wrong with the judicial use of social media. Part 4 describes a stance judges might take towards social media.

Violating The Inviolate?: Divided Tennessee Supreme Court Upholds Constitutionality Of Noneconomic Damage Caps, Focuses On Right To Jury Trial, Bailey D. Barnes

Faculty Publications

On Feb. 26, in McClay v. Airport Management Services LLC, the Tennessee Supreme Court upheld the constitutionality of the noneconomic damage cap provisions of the Tennessee Civil Justice Act of 2011. The court’s analysis primarily centered on the constitutional right to a trial by jury. The justices split on whether the General Assembly maintains the authority to alter or abridge the state’s common law when doing so affects a constitutional right.

The three-justice majority concluded that noneconomic damage caps do not violate the right to a jury trial, though one of those justices authored a concurring opinion declaring the issue …

Constitutionalism And Africa's Agenda 2063: How To Build "The Africa We Want", John Mukum Mbaku

Brooklyn Journal of International Law

In 2013, Africans, under the leadership of the African Union, set out to develop a “strategic framework for the socio-economic transformation of the continent over the next 50 years.” This new development program was expected to “accelerate the implementation of past and existing continental initiatives for growth and sustainable development.” This transformative program, called Agenda 2063: The Africa We Want, was officially adopted by the Assembly of Heads of State and Government of the African Union in Addis Ababa, Ethiopia in January 2015. The heart of this ambitious development initiative are seven aspirations, which Africans hope to achieve by the …

The Case For A Federal Criminal Court System (And Sentencing Reform), Christopher Slobogin

Vanderbilt Law School Faculty Publications

In their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. As they depict it, justice in the federal courts is either delayed or denied, disparity in legal outcomes among circuits is increasing, and the Supreme Court is falling farther and farther behind in resolving circuit splits. While these problems have been around for a while, Menell and Vacca argue they are getting worse and will only continue to worsen if radical action is not taken. Their article provides enough of a factual record to …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 06-2020, Roger Williams University School Of Law, Michael M. Bowden, Katie Mulvaney

Life of the Law School (1993- )

No abstract provided.

A Balanced Consideration Of The Federal Circuit’S Choice-Of-Law Rule, Jennifer E. Sturiale

Utah Law Review

The Federal Circuit’s jurisdiction is unique. Unlike the jurisdiction of all other U.S. courts of appeals, the Federal Circuit’s jurisdiction is defined not by its geographical boundaries, but rather by the subject matter of the original claims and compulsory counterclaims. The court has appellate jurisdiction over final decisions from all U.S. district courts if a plaintiff’s claim or a party’s counterclaim arises under the patent laws. From this unusual jurisdictional grant, the Federal Circuit has concluded that, as a policy matter, it should apply and develop its own law only if the legal issue pertains to patent law. For all …

Danse Macabre: Temporalities Of Law In The Visual Arts, Jeanne L. Schroeder

Articles

In Danse Macabre: Temporalities of Law in the Visual Arts, Desmond Manderson delves the visual arts for insights into jurisprudence and legal practice. The book is a tour de force. Observing that just as art always fails to capture the image of justice, justice also always escapes positive law, Manderson claims, "We cannot paint the present; nor can we write the present law. . . . painting and lawmaking are always behind the times, late for their rendezvous with a world that has turned without them. . . . they strive to shape a future that they will never live …

Judicial Precedent In Emerging Constitutional Jurisdictions: Formulating A Doctrine Of Constitutional Stare Decisis For Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

Judicial precedents in constitutional law raiseunique stare decisis considerations. While they are authoritative pronouncementson the proper interpretation of the Constitution and are thus an essentialcomponent of constitutional law, they are also merely judicial precedents – andthus susceptible to being overturned. These considerations have been thesubject of a well-developed body of literature, especially in the context of USSupreme Court constitutional precedents.Yet, despite being a constitutional supremacy, little attention has beenpaid in Singapore to the question of the proper judicial approach towardsconstitutional precedents. This paper aims to address this issue. It will discernthe de facto principles that Singapore judges have thus far …

Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae C. Quinn, Grace R. Mclaughlin

Washington and Lee Journal of Civil Rights and Social Justice

There is no federal juvenile court system in the United States. Rather, teens can face charges in Article III courts and can be transferred to be tried and sentenced as adults in these venues. This Article is the first of two articles in the Washington and Lee Journal of Civil Rights and Social Justice seeking to shed light on the largely invisible processes and populations involved in federal youth prosecution. This Article focuses on the federal transfer and prosecution of American youth as adults. It considers constitutional and statutory law relating to these federal transfers and then considers why current …

School To Students: Post That, And You Won't Play, Ashley Waddoups

BYU Law Review

No abstract provided.

The Right To A Public Trial In The Time Of Covid-19, Stephen E. Smith

Washington and Lee Law Review Online

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific …

Law School News: The Honorable Margaret H. Marshall: Doctor Of Laws, Honoris Causa 05-10-2020, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Justice Diseased Is Justice Denied: Coronavirus, Court Closures, And Criminal Trials, Ryan Shymansky

West Virginia Law Review Online

This Article aims to consider the immediate impacts of the novel coronavirus on criminal defendants’ access to speedy trials by jury. In particular, it aims to examine whether court closures and delays could affect the substantive rights of criminal defendants—and particularly pretrial detainees—to a speedy and public trial by jury. To date, very little scholarship has considered this question. Yet the ideal of a speedy trial by jury is deeply embedded in our Constitution and our judicial system, and the potential for a pandemic to limit or negate that right should ring scholastic and judicial alarm bells.

This analysis proceeds …

Models Of Pre-Promulgation Review Of Legislation, Rachel Myers

Indiana Journal of Constitutional Design

Pre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review …

The Death Of The Autonomous Venezuelan Judiciary, Amid Bennaim

University of Miami Inter-American Law Review

Access to impartial and effective courts is the cornerstone of democratic civil society. When the intention of political actors is to extinguish democratic civil society, they often wear away at the autonomy of the judiciary. International law and the constitutions of many states throughout the world guarantee access to autonomous courts. Despite having such guarantees in place, the government of the Bolivarian Republic of Venezuela has consistently attacked the judiciary in order to erode its autonomy and bring it under political control. Strategies used to achieve that goal include purging judges, intimidating them, and preventing judges from getting tenure. As …

Law School News: Olin W. Thompson, Iii: Doctor Of Laws, Honoris Causa 05-08-2020, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Cryptocurrencies' Revolt Against The Bsa: Why The Supreme Court Should Hold That The Bank Secrecy Act Violates The Fourth Amendment, Jeremy Ciarabellini

Seattle Journal of Technology, Environmental, & Innovation Law

The Bank Secrecy Act (BSA) creates a Hobson’s choice: one must either struggle to function in modern society without a bank account or submit to financial surveillance by the government. Both choices result in drastic consequences.

Digital Court Records Access: Social Justice And Judicial Balancing, Peter J. Guffin

Maine Law Review

With its transition from paper to electronic records, the state court system in Maine is entering new, uncharted territory. In drafting rules regarding public access to electronic court records, a critical issue facing the court system is how to go about balancing the privacy interests of the individual and the state’s interest in providing transparency about the court’s operations. Both interests are important in our democracy, and it is critical that we take measures to preserve both. The purpose of writing this essay is to show that Judge Coffin’s judicial philosophy and rights-sensitive balancing process, although the product of a …

Drug Courts And The Following Of The Federal Guidelines, Charles James Souza

Master’s Theses and Projects

During the 1980’s, drug offense were running high within the United States. The court system along with the police and other fields were forced to form other methods of dealing with offenders who have a substance abuse problem. In 1989, the first drug court in the United States was formed in the state if Florida. The idea was to create a therapeutic method to help those who are committing non-violent criminal acts due to their addiction. The goal of drug court was to get offenders the treatment they needed so they would not resort to criminal activity. Drug court personal …