Courts Commons^™

Fosta: A Necessary Step In Advancement Of The Women’S Rights Movement, Alexandra Sanchez

Touro Law Review

No abstract provided.

New Prime Inc. V. Oliveira: Putting The Wheels Back On The Faa’S Section 1 Exemption For Transportation Workers, Reed C. Trechter

Oklahoma Law Review

No abstract provided.

Citing Sisters: A Study Of The Oklahoma Appellate Courts, Lee F. Peoples

Oklahoma Law Review

No abstract provided.

The Cultural Constraints Of Legal Transplantation A Ten-Year Retrospective, James L. Nolan Jr.

Cardozo Journal of Conflict Resolution

No abstract provided.

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

The Defender General, Daniel Epps, William Ortman

Scholarship@WashULaw

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate …

Symbolism And The Thirteenth Amendment: The Injury Of Exposure To Governmentally Endorsed Symbols Of Racial Superiority, Edward H. Kyle

Michigan Journal of Race and Law

One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Give Me Your Tired, Your Poor (Unless They Are From “One Of Three Mexican Countries”): Unaccompanied Children And The Humanitarian Crisis At The U.S. Southern Border, Samantha R. Bentley

University of Richmond Law Review

This Comment argues that the United States’s response to the humanitarian crisis at its border is wholly inadequate. It argues that the government chose to advance two policies, Zero Tolerance and Family Separation, that exacerbated the humanitarian crisis at the border. These policies facilitated practices that violated domestic and international law. Most importantly, this Comment argues that the United States government traumatized one of the most vulnerable groups of people in the world: children.

Excessive Force: A Feasible Proximate Cause Approach, Latasha M. James

University of Richmond Law Review

Through an analysis of the statutory and case law surrounding the use of excessive force, this Comment will review how differentiating applications of the law have led to varying and sometimes unjust results. Jurisdictions differ regarding what pre-shooting conduct can be considered, what the “objective reasonableness” standard encompasses, and how tort law should impact this analysis. Therefore, this Comment works to provide a framework for the consistent application of the objective reasonableness standard. Part I reviews the proscribed levels of force, noting when the use of force becomes excessive, and discusses the tort concept of proximate cause and how the …

The Corporate Chameleon, Megan Wischmeier Shaner

University of Richmond Law Review

This Article seeks to address what is currently missing from corporate law—a clear way of determining “officer” status as that distinct legal role is contemplated in corporate jurisprudence. Part I discusses the three primary actors involved in the internal governance of the corporation—directors, stockholders, and officers—and how the law defines each one. While corporate law clearly contemplates officers as a distinct role, a quick comparison of the three reveals a failure to identify with any precision the bounds of “officer” status. Part II looks to other areas of the law for guidance in defining and identifying the officers of the …

Why Can't We All Just Cher?: Drag Celebrity Impersonators Versus An Ever-Expanding Right Of Publicity, Emily Hoenig

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Fines, Fees, And Filing Bankruptcy, Pamela Foohey

Scholarly Works

This essay was written in conjunction with the “Court Debt”: Fines, Fees, and Bail, Circa 2020 symposium held during the Association of American Law Schools' 2019 annual meeting. The essay details the extent to which "court debt" -- civil and criminal fines, fees, and interest -- can be dealt with by filing bankruptcy. In short, although filing bankruptcy on balance may help people deal with court debt and other debts, the barriers that people face to filing raise questions about the accessibility of civil courts and suggest that the consumer bankruptcy system itself is yet another place in which race …

An Examination Of How The Canadian Military’S Legal System Responds To Sexual Assault, Elaine Craig

Articles, Book Chapters, & Popular Press

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only one soldier has been convicted …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Policing Procedural Error In The Lower Criminal Courts, Justin Murray

Publications

The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Faculty Scholarship

This Article examines the states' response to Epic Systems v. Lewis, which held enforceable under the Federal Arbitration Act (FAA) mandatory arbitration agreements that require employees to waive their participation in collective and class actions in employment contracts. Recent evidence shows that mandatory arbitration can erode access to justice for and deterrence of employment law claims. States in response are considering qui tam statutes, which assign the state interests in penalties for employment law violations to private enforcers in return for a bounty, to substitute for the loss of class action enforcement after Epic Systems.

These statutes can …

From Trulia To Akorn: A Ride On The Roller Coaster Of M&A Litigation, Pierluigi Matera, Ferruccio M. Sbarbaro

Faculty Scholarship

In recent years, M&A litigation has experienced a dramatic increase, culminating with a peak in 2015, when over 96. of publicly announced mergers were challenged in a shareholder lawsuit. A large number of these lawsuits were frivolous and vexatious, since most claims were filed by plaintiffs' attorneys just to extract some fees with little effort. Some abusive practices emerged, signalling an alarming exploitation of the system. One scheme that plaintiffs' attorneys put in place was the disclosure-only settlement. There, the stockholders obtained some modest supplemental disclosures, the plaintiff's attorneys got significant fee awards from the defendant directors and the defendant …

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 …

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 …

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 …

Disrobing The Judiciary: The Systematic Stripping Of Judicial Power By The Legislature, Chynna Breann Hibbitts

Kentucky Law Journal

No abstract provided.

The Friday Night “Who Is Driving?” Debate Will Soon Come To An End: How Autonomous Vehicles Are Changing Our Lives And Societal Norms, Nicholas Calabria

Touro Law Review

No abstract provided.

The “Foul” Protection For A Photographer’S Original And Creative Choices In A Photograph: Exploring The Implications Of Rentmeester V. Nike, Inc. On Creativity In Photography, Olivia Lattanza

Touro Law Review

No abstract provided.

The Growth And Need For Veterans Treatment Courts, Chad Lennon

Touro Law Review

No abstract provided.

Just How Reliable Is The Human Memory? The Admissibility Of Recovered Repressed Memories In Criminal Proceedings, Shannon L. Malone

Touro Law Review

No abstract provided.