Courts Commons^™

“Importing” Restrictions From One Federal Rule Of Evidence Provision To Another: The Limits Of Legitimate Contextual Interpretation In The Age Of Statutes, Edward J. Imwinkelried

Oklahoma Law Review

No abstract provided.

Mandatory, Fast, And Fair: Case Outcomes And Procedural Justice In A Family Drug Court, Melanie Fessinger, Katherine Hazen, Jamie Bahm, Jennie Cole-Mossman, Roger Heideman, Eve Brank

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

Objectives: Problem-solving courts are traditionally voluntary in nature to promote procedural justice and to advance therapeutic jurisprudence. The Family Treatment Drug Court (FTDC) in Lancaster County, Nebraska, is a mandatory dependency court for families with allegations of child abuse or neglect related to substance use. We conducted a program evaluation examining parents’ case outcomes and perceptions of procedural justice to examine whether a mandatory problem-solving court could replicate the positive outcomes of problem-solving courts. Methods: We employed a quasi-experimental design that compared FTDC parents to traditional dependency court parents (control parents). We examined court records to gather court orders, compliance …

Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford

Journal Articles

This essay is the second in a two-part series focused on our nation’s invisible juvenile justice system—one that operates under the legal radar as part of the U.S. Constitution’s Article III federal district court system. The first publication, Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers, examined the little-known practice of prosecuting children as adults in federal courts. This paper will look at the related phenomenon of juvenile delinquency matters that are filed and pursued in our nation’s federal court system. To date, most scholarship evaluating youth prosecution has focused on our country’s juvenile …

A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips

Northwestern Journal of Law & Social Policy

No abstract provided.

“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

University of Michigan Journal of Law Reform

First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed. Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of “adequacy …

Rethinking The Role Of Courts In Resolving Family Conflicts, Jane C. Murphy

Cardozo Journal of Conflict Resolution

Family courts have been a central focus of the national problem-solving courts movement over the last three decades.' These courts have sought to replace the law and process-oriented adversary model with a more collaborative and interdisciplinary regime that de-emphasizes legal norms and focuses on therapeutic goals. While the new paradigm may be an improvement over its more adversarial predecessor, it presents significant risks for many who appear in these courts.2 A growing consensus is emerging among scholars, policy makers, and family law practitioners that the focus for much of family dispute resolution should shift from courts to the community.

This …

The Past, Present, And Future Of Christian Adr, Ronald J. Colombo

Cardozo Journal of Conflict Resolution

Many religious traditions recommend (if not require) that their adherents bring some if not all of their disputes with co-adherents before a religious tribunal for resolution. The Christian religious tradition is no exception. That said, the dramatic history of the Church in the West, from that of a persecuted Jewish sect, to the official state religion of Imperial Rome, to an international authority competing with that of local monarchs, to its modern status of merely tolerated, has yielded a variety of evolving perspectives on the question of intra-faith dispute resolution within Christianity. This article examines that question and the historical …

Brief Of Amicus Curiae The Washington And Lee University School Of Law Black Lung Clinic In Support Of Petitioners: California V. Texas, Timothy C. Macdonnell

Scholarly Articles

Section 1556 of the Patient Protection and Affordable Care Act (PPACA) makes two major changes to the Black Lung Benefits Act. These changes remove limiting language to make it simpler for disabled miners and their families to establish that they are entitled to federal benefits. First, § 1556(a) reinstates the fifteen-year rebuttable presumption, which presumptively entitles former coal miners to benefits if they have worked over fifteen years underground and have a totally disabling pulmonary disease. The second, § 1556(b), reinstates a continuation of benefits for surviving spouses whose coal-mining spouse was receiving benefits at the time of their death. …

Justice Served, Housing Preserved: The Ramsey County Housing Court Model, Colleen Ebinger, Elizabeth Clysdale

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Free Speech And Off-Label Rights, Amy J. Sepinwall

Georgia Law Review

When a litigant invokes a constitutional right to
protect interests different from the ones underpinning
the right, he engages in what this Article calls an
off-label rights exercise. The Free Speech Clause has
recently become an especially prominent, and troubling,
site of off-label rights exercises. Two of the most
prominent cases in the Supreme Court’s last term
involved litigants who invoked their constitutional
rights to free speech to protect interests unrelated to
speech or expression. In Janus v. American Federation
of State, County, & Municipal Employees, a state
employee argued that forcing him to pay for the union’s
bargaining activities …

The Inherent And Supervisory Power, Jeffrey C. Dobbins

Georgia Law Review

Parties to litigation expect courts to operate both
predictably and fairly. A core part of this expectation is
the presence of codified rules of procedure, which ensure
fairness while constraining, and making more
predictable, the ebb and flow of litigation.
Within the courts of this country, however, there is a
font of authority over procedure that courts often turn to
in circumstances when they claim that there is no
written guidance. This authority, referred to as the
“inherent” or “supervisory” power of courts, is an almost
pure expression of a court’s exercise of discretion in that
it gives courts the …

Pretrial Detention Of Indigents: A Standard Analysis Of Due Process And Equal Protection Claims, Robert William G. Wright

Georgia Law Review

Over the past several years, criminal justice activists
have sought to reform misdemeanor bail policies that
condition pretrial release on an arrestee’s ability to pay
a predetermined cash bond. Activists have challenged
such bail polices by filing lawsuits on behalf on indigent
persons who have been exposed to such policies. Often,
these lawsuits allege that bail policies violate both the
Due Process and Equal Protection Clauses of the
Fourteenth Amendment. While due process and equal
protection analyses are generally well-defined, U.S.
Supreme Court precedent does not offer a clear analysis
for courts to apply to due process and equal protection …

The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

How would a court resolve a broker-dealer's action to enforce its class action waiver, which would require the court to disregard FINRA Rule 13204? The Supreme Court has identified one exception to the FAA's mandate: if a “contrary congressional command” displaces the FAA. Thus far, the Court has not had occasion to examine whether a class action waiver in a broker-dealer's employment agreement with an employee is enforceable under this exception. While the Court seems very supportive of these waivers, the securities industry is different. Securities arbitration is heavily regulated, and pronouncements by the SEC--when exercising power expressly delegated to …

Sovereign Immunity, The Au, And The Icc: Legitimacy Undermined, Christa-Gaye Kerr

Michigan Journal of International Law

This note examines how the International Criminal Court’s indictment of African leaders has led to a breakdown in the relationship between the Court and the African Union and offers solutions to repair this relationship. In particular, the ICC’s blanket rejection of sovereign immunity and its close relationship with the UNSC delegitimize the Court. As an organization that relies on the cooperation of states across the world, this is something the Court cannot afford. The ICC’s decade-long fight with the African Union over the disproportionate number of charges leveled against African nationals has weakened its stature with African states. This has …

Rehabilitating Our Immigration System With The Rehabilitation Act: Rejecting Video Teleconferencing And Presumptively Requiring In-Person Court Appearances As A Reasonable Accommodation For Mentally Incompetent Detainees, Cassandra H. Chee

American University Law Review

In recent years, the Executive Office for Immigration Review (EOIR), the office of the U.S. Department of Justice (DOJ) responsible for adjudicating immigration cases, has increasingly relied on the use of video teleconferencing (VTC) in immigration court proceedings, as opposed to in-person court appearances. Citing VTC as an efficient and effective way to conduct hearings and manage its large docket backlog, EOIR has installed VTC units at its headquarters and at nearly all immigration courts, and the agency’s use of VTC has risen exponentially under the Trump Administration. Yet, VTC has been proven to harm immigration judges’ abilities to assess …

Multidistrict Litigation And Personal Jurisdiction, Zachary T. Nelson

Lewis & Clark Law Review

Under the Fourteenth Amendment’s Due Process Clause, a court cannot lawfully adjudicate a party’s rights or obligations unless, among other things, that court possesses sufficient personal jurisdiction over the party. The means by which a court may obtain such jurisdiction have grown increasingly narrow in recent years. Parallel to that trend has been the meteoric rise of multidistrict litigation (MDL), in which the Judicial Panel on Multidistrict Litigation transfers and consolidates numerous civil cases in a single federal court that, in many instances, lacks personal jurisdiction over one or more parties. Although MDL is statutorily limited to “pretrial proceedings,” 97% …

John Marshall’S Constitution: Methodological Pluralism And Second-Order Ipse Dixit In Constitutional Adjudication, D.A. Jeremy Telman

Lewis & Clark Law Review

This Article provides a comprehensive treatment of the constitutional jurispru- dence of the Marshall Court (1801–1835), addressing its relationship to con- temporary originalism. Until recently, there seemed to be no need for such a study. With the move from intentionalism to textualism in the 1980s, originalists came to understand their movement as an innovation and a reac- tion against the perceived excesses of the Warren and Burger Courts. Original- ists did not claim that originalist methodology informed nineteenth-century constitutional adjudication.

Recently, however, originalists have made claims that constitutional adjudi- cation in the United States has always been originalist. This Article …

A Return To The Traditional Use Of The Writ Of Mandamus, Audrey Davis

Lewis & Clark Law Review

A litigant filing a petition for a writ of mandamus takes a gamble. If unsuc- cessful, the petitioner risks not only wasting time and effort but also insulting the district court judge by calling into question his or her ability to carry out the basic duties of a judge. And even if successful, the petitioner still faces the risk of returning to the district court on less-than-friendly terms. More than anything, however, the writ of mandamus poses such risks because appellate courts have employed widely varying approaches in developing a standard for granting the writ. In order to offer greater …

Procedural Self-Inflicted Wounds?, Joshua P. Davis, Brian J. Devine

Lewis & Clark Law Review

A proposal has recently come before the Federal Civil Rules Advisory Commit- tee to expand the ability of parties in multidistrict litigation to seek immediate interlocutory appellate review. This Essay suggests that the proposal is unwise as a matter of policy. It would make MDL litigation more expensive and less efficient. Counterintuitively, it may even harm the very large corporations who are championing the change. This Essay explains why that might occur—why large corporate defendants may pursue legal innovations that harm them—a possibility with implications well beyond interlocutory appellate review.

Multidistrict Litigation And Common Law Procedure, Alexandra D. Lahav

Lewis & Clark Law Review

On the 50th anniversary of the Multidistrict Litigation Act, the Act has gotten more attention than ever. One area that has led to significant controversy is the use of judicial discretion to craft procedures to manage MDLs. It is generally agreed that judges exercise discretion to create innovative procedures to resolve large-scale aggregate litigation transferred to their courts and that judges learn from approaches in previous MDLs that they think were successful in crafting these procedures. The controversy is that some think that this procedural approach is both exceptional and lawless. This Essay argues against this view, showing how the …

Texas Mdl, D. Theodore Rave, Zachary D. Clopton

Lewis & Clark Law Review

Federal multidistrict litigation (MDL) gets all the attention. This mechanism for consolidating cases filed around the country in a single federal district court for pretrial proceedings has become the dominant mode of resolving mass torts in U.S. courts. But not all mass adjudications find their way into federal court. Texas, like about half of the states, has developed an MDL mechanism to coordinate proceedings within its own courts. In this Essay, we examine the history, doctrine, and data of Texas MDL. Although Texas modeled its approach on the federal MDL statute, the Texas MDL system differs in important ways from …

What Do Mdl Leaders Do? Evidence From Leadership Appointment Orders, David L. Noll

Lewis & Clark Law Review

In federal multidistrict litigation (MDL), district courts regularly appoint attorneys to manage the litigation of cases that are transferred to a single district court for coordinated pretrial proceedings. Orders appointing MDL leaders serve as a constitution or charter for a particular MDL, reallocating functions that otherwise would be performed by individually retained plaintiffs’ attorneys to court-appointed leaders. As such, they perform a crucial role in the “MDL model” of aggregate litigation and settlement. Yet in spite of their importance, knowledge of these orders is mostly folk wisdom.

This Article presents preliminary findings from a study of leadership appointment orders in …

Have Problem-Solving Courts Changed The Practice Of Law?, Cynthia Alkon

Cardozo Journal of Conflict Resolution

No abstract provided.

A Colonial Castle: Defence Of Property In R V Stanley, Alexandra Flynn, Estair Van Wagner

All Faculty Publications

In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered his farm. Boushie died instantly. Stanley relied on the defence of accident and was found not guilty be an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime), much of which was of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass shaped the trial, yet were not tested by the jury through a formal invocation of the defence of property.

What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson

Faculty Scholarship

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This …

Should I Stay Or Should I Go: Student Housing, Remote Instruction, Campus Policies And Covid-19, Patricia E. Salkin, Pamela Ko

Scholarly Works

In March 2020, as the world scrambled to understand and address myriad public health and economic challenges unfolding from the novel coronavirus labeled COVID-19, higher education was forced into a tailspin. This article examines the legal and policy challenges that result from, among other issues, the congregate housing situations existing for on- and off-campus housing at colleges and universities. The legal issues demonstrate federalism at work and include; at the federal level, regulations and guidance from the White House, the Center for Disease Control (CDC) and the U.S. Department of Education; at the State level from gubernatorial executive orders, state …

"Downright Indifference": Examining Unpublished Decisions In The Federal Courts Of Appeals, Merritt E. Mcalister

UF Law Faculty Publications

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.” The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate …

Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd

Indiana Journal of Law and Social Equality

No abstract provided.

The Meaning Of A Misdemeanor In A Post-Ferguson World: Evaluating The Reliability Of Prior Conviction Evidence, John D. King

Georgia Law Review

Despite evidence that America’s low-level courts are
overburdened, unreliable, and structurally biased,
sentencing judges continue to uncritically consider a
defendant’s criminal history in fashioning an
appropriate punishment. Misdemeanor courts lack
many of the procedural safeguards that are thought to
ensure accuracy and reliability. As with other stages of
the criminal justice system, people of color and poor
people are disproportionately burdened with the
inaccuracies of the misdemeanor system.
This Article examines instances in which sentencing
courts have looked behind the mere fact of a prior
conviction and assessed whether that prior conviction
offered any meaningful insight for the subsequent
sentence. …

The Categorical Imperative As A Decarceral Agenda, Jessica M. Eaglin

Articles by Maurer Faculty

In his forthcoming book, The Insidious Momentum of Mass Incarceration, Frank Zimring proposes two alternative methods to decarcerate: states can adopt a categorical imperative to reduce prison populations or states can reform the governance of sentencing. This symposium Essay focuses on the first of these options, as proposed in his tentative Chapter Six, wherein Zimring calls for categorically removing drug-addicted offenders from eligibility for prison sanctions and expanding use of jails for categories of offenses or offenders.

These methods, I suggest, exist in tension with numerous popular sentencing reforms being implemented in the states right now. Popular reforms, including the …