Courts Commons^™

Foreign Judgments: The Limits Of Transnational Issue Estoppel, Reciprocity, And Transnational Comity, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

In Merck Sharp & Dohme Corp v Merck KGaA [2021] SGCA 14, a full bench of the Singapore Court of Appeal addressed the limits of transnational issue estoppel in Singapore law, and flagged possible fundamental changes to the common law on the recognition and enforcement of foreign judgments in Singapore. The litigation involves multiple parties spread over different jurisdictions. The specific facts involved in the appeal are fairly straightforward, centring on what has been decided in a judgment from the English court, and whether it could be used to raise issue estoppel on the interpretation of a particular term of …

An Evaluation Framework For Allied Legal Professional Programs: Assessing Improvements In Access To Justice, Andrea L. Miller, Paula Hannaford-Agor, Kathryn Genthon

Faculty Publications

The American legal system has a civil access-to-justice gap, wherein many people with civil legal issues are unable to obtain legal assistance. People with civil legal issues who cannot afford an attorney frequently must proceed through the legal system on their own. As the number of Self-Represented Litigants (SRLs) grows, several jurisdictions have investigated the creation of an additional tier of legal service providers, who can give limited legal assistance at a lower price than attorneys. For the purposes of this report, we will refer to these service providers as Allied Legal Professionals (ALPs). ALP programs can involve a wide …

Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto

William & Mary Bill of Rights Journal

This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to …

Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. …

Supreme Court Fact-Finding And The Distortion Of American Democracy: Hearing Before The Subcommittee On Federal Courts, Oversight, Agency Action And Federal Rights Of The Committee On The Judiciary, Senate, One Hundred Seventeenth Congress, First Session, Allison Orr Larsen

Congressional Testimony

No abstract provided.

Hard Battles Over Soft Law: The Troubling Implications Of Insurance Industry Attacks On The American Law Institute Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel

Cleveland State Law Review

ALI Restatements of the Law have traditionally exerted significant influence over court decisions and the development of the common law. During the past two decades, however, the ALI has seen an upsurge in interest group activity designed to shape or even thwart aspects of the Institute’s work. Most recently, the Restatement of the Law of Liability Insurance (RLLI) has been the focus of not only criticism of particular provisions but a concerted effort by members of the insurance industry to demonize the project as a whole and bar use of the document by courts.

The vehemence of insurer opposition seems …

"Clerical Mistake In A Judgment" Under Israeli And American Procedural Law – A New Model, Yitshak Cohen

Cleveland State Law Review

This Article examines the development and efficiency of the procedure for correction of a clerical mistake in a judgment in the Israeli law. As is well known, the procedure offers a short and simple way to correct an error in language within a decision. The litigants may file a motion to correct a decision in the same court that granted it, without having to file an appeal in the appellate court. The difficulty, however, is that this procedure contains three fundamental flaws that might even hinder its purpose: First, the law binds the parties and the court to the same …

Changing The Rule That Changes Nothing: Protecting Evicted Tenants By Amending Cleveland Housing Court Rule 6.13, James J. Scherer

Cleveland State Law Review

Renting is on the rise, with all households seeing an increase in the prevalence of renting a home versus owning one from 2006 to 2016. As rental rates rise, so too do the rates of eviction. The detrimental effects of eviction are numerous and can be self-reinforcing, with a single eviction decreasing one’s chances of securing decent and affordable housing, escaping disadvantaged neighborhoods, and benefiting from affordable housing programs. All this was before the coronavirus pandemic that devastated jobs and savings accounts across the nation.

One of the biggest impacts that eviction has on renters is a public court record. …

International Decision Commentary: Houngue Éric Noudehouenou V. Republic Of Benin, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The judgment in Houngue Éric Noudehouenou v. Republic of Benin adds to the growing body of human rights jurisprudence on national electoral processes in Africa’s international courts. The decision demonstrates the growing importance of Africa’s regional and sub-regional courts as an alternative venue for opposition politicians, activists, and citizens to mobilize and challenge election processes and constitutional amendment processes where the playing field in their state is uneven. In turn, it reinforces the pivotal role of the regional and sub-regional courts in consolidating democratic governance in Africa, and reveals the limits of assessing the performance of Africa’s international courts solely …

Remote Court: Principles For Virtual Proceedings During The Covid-19 Pandemic And Beyond, Alicia L. Bannon, Douglas Keith

Northwestern University Law Review

Across the country, courts at every level have relied on remote technology to adapt the justice system to a once-a-century global pandemic. This Essay describes and assesses this unprecedented journey into virtual justice, paying particular attention to eviction proceedings. While many judges have touted remote court as a revolutionary innovation, the reality is more complex. Remote court has brought substantial time savings and convenience to those who are able to access and use the required technology, but it has also posed hurdles to individuals on the other side of the digital divide, particularly self-represented litigants. The remote court experience has …

Mdl In The States, Zachary D. Clopton, D. Theodore Rave

Northwestern University Law Review

Multidistrict litigation (MDL) is exploding. MDL makes up a large and increasing portion of the federal civil docket. It has been used in recent years to manage and resolve some of our largest controversies: opioids, NFL concussions, Volkswagen “clean” diesel, and many more. And, given its growing importance, MDL has come to dominate the academic literature on complex litigation.

At its base, MDL is a tool to coordinate related cases across different courts in service of justice, efficiency, and fairness. These goals are not unique to the federal courts. State courts handle far more cases than federal courts, including the …

Third-Party Standing And Abortion Providers: The Hidden Dangers Of June Medical Services, Elika Nassirinia

Northwestern Journal of Law & Social Policy

Standing is a long held, judicially-created doctrine intended to establish the proper role of courts by identifying who may bring a case in federal court. While standing usually requires that a party asserts his or her own rights, the Supreme Court has created certain exceptions that allow litigants to bring suit on behalf of third parties when they suffer a concrete injury, they have a “close relation” to the third party, and there are obstacles to the third party's ability to protect his or her own interests. June Medical Services, heard by the Supreme Court on June 29, 2020, …

The Insights, Uses, And Ethics Of Social Neuroscience In Anti-Discrimination Law, Susan Carle

Scholarly Articles in Law Reviews & Journals

The article explores the uses in anti-discrimination law of social neuroscience—a broad interdisciplinary field that draws on the insights of brain science, medicine, epidemiology, social psychology, behavioral economics, moral cognitive neuroscience and many other experimentally based disciplines. It discusses the promising uses of social neuroscience findings from all these subfields on such matters as the irrational biases of “fast” thinking processes in general, and implicit biases against “out” groups more specifically, as well as group conformity, the black sheep effect, and more. The article traces a few of the ways these insights can help inform anti-discrimination law in both particular …

Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce …

A Comparison Of Public Defenders Vs. Private Attorneys, Tiffany Costello

Honors Senior Capstone Projects

This study seeks to determine whether there are any differences in conviction rates or client satisfaction between public defenders and private attorneys in state or federal courts. Although researchers have spent time examining differences between attorney type and client satisfaction or conviction rates, little information exists on the assessment of attorney type in the federal system. The study will consist of a two-part survey with approximately twenty-seven closed-ended questions about client satisfaction, conviction, court, and attorney type. The target population will be any criminal defendant in federal or state court with an attorney. In this study, the sampling method will …

June Medical And The Marks Rule, Owen P. Toepfer

Notre Dame Law Review

This Note, proceeding in three parts, describes the history of the Court’s abortion jurisprudence, evaluates the current state of the Marks rule, and demonstrates that Chief Justice Roberts’s concurrence in June Medical is the controlling opinion for Marks purposes under each definition of “narrowest” that several federal circuit courts of appeals employ. Part I first traces the historical arc of abortion jurisprudence from Roe v. Wade to June Medical and thereafter provides background on the history of and academic reactions to the Marks rule. Part II considers the various approaches to the Marks rule taken by the several federal circuits …

Scientific Gerrymandering & Bifurcation, Katrina F. Kuh, Megan Edwards, Frederick A. Mcdonald

Elisabeth Haub School of Law Faculty Publications

Environmental litigation must often examine the propriety of corporate conduct in areas of scientific complexity. In the second generation of climate nuisance suits, for example, allegations of corporate participation in the climate disinformation campaign are woven into plaintiffs’ claims. Toxic tort suits, currently and most notably in the Roundup and PFAS litigation, present another area of environmental litigation grappling with the legal ramifications of alleged corporate deception about scientific information. Toxic tort suits often surface allegations, and in many cases disturbing evidence, of what we term corporate “scientific gerrymandering”— corporate efforts to finesse, slow, or even mislead scientific understanding of …

Rethinking Mac Clauses In The Time Of Akorn, Boston Scientific, And Covid-19, Samuel Shapiro

Michigan Business & Entrepreneurial Law Review

The MAC clause is perhaps the most important clause in contract law, giving acquirers the ability to terminate even the largest agreements in the face of an often vaguely defined “Material Adverse Change.” For decades, even though MAC clauses have been present in nearly every merger agreement, courts have almost universally refused to enforce them. But the Delaware Chancery Court’s 2018 decision in Akorn may finally change that. As the world deals with the economic uncertainty caused by COVID-19, courts may soon get more opportunities to decide whether or not they will follow Akorn’s lead and begin to allow …

The Continued Relevance Of The Contributions Of The Sierra Leone Tribunal To International Criminal Law, Charles C. Jalloh

Articles

No abstract provided.

Increasing Substantive Fairness And Mitigating Social Costs In Eviction Proceedings: Instituting A Civil Right To Counsel For Indigent Tenants In Pennsylvania, Robin M. White

Dickinson Law Review (2017-Present)

The U.S. Constitution provides criminal defendants the right to a court-appointed attorney but gives no similar protection to civil litigants. Although federal law does not supply any categorical rights to counsel for civil litigants, all 50 states have instituted the right in at least one category of civil law that substantially impacts individuals’ rights. Since 2017, several U.S. cities have enacted such a right for tenants facing eviction. In so doing, these cities responded to American families’ increasing rent burden, the recent publication of nationwide eviction data, the sociological research concerning the impact of eviction, and the lack of procedural …

What Is A “Case”?, Lynn M. Mather

Journal Articles

This article interrogates the concept of a “case” in court, in an effort to clarify underlying concerns in debates over whether there is “too much” or “too little” litigation. One perspective on litigation takes a bottom-up view, examining the considerations and motives of disputing parties who file civil claims. This perspective includes theories about litigation and social structure, economics, dispute transformation, political participation, and psychology. An alternative top-down view examines litigation from the perspective of government, including its interest in dispute resolution, social control, and institutional capacities of courts. The article reviews and critiques existing literature on these perspectives and …

Brief Of Amicus Curiae Professor Susan Carle In Support Of The Plaintiffs Arguing For Affirmance In Johnson And Tinker V. City Of Boston, Ma, Susan Carle

Amicus Briefs & Court Filings

This brief is being submitted by a law professor, Susan D. Carle, with more than 30 years of expertise in federal employment and antidiscrimination law, and especially the history and purposes of disparate impact law. She submits this brief to share her expertise with this Court. She is currently Professor of Law and Vice Dean of American University Washington College of Law (organizational affiliation is offered for identification purposes only).

A Concept Of Shared Principles And The Constitutional Homogeneity In Europe: The Case Of Subsidiarity, Volker Roeben

Cardozo International & Comparative Law Review

The article explores the concept of subsidiarity as a shared legal principle in both the European Union (EU) and German law, focusing on its role in ensuring the accountability of central authority while safeguarding the autonomy of peripheral legislatures. It highlights the convergence of the Court of Justice of the European Union (CJEU) and the German Federal Constitutional Court (FCC) on a rationale of legality, aimed at preventing central overreach into peripheral competences. Despite this alignment, the article notes divergent outcomes in the application of subsidiarity, with the FCC more frequently invalidating federal legislation compared to the CJEU's more restrained …

The Militia: A Definition And Litmus Test, Marcus Armstrong

St. Mary's Law Journal

The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the …

“We” The Jury: The Problem Of Peremptory Strikes As Illustrated By Flowers V. Mississippi, Kayley A. Viteo

St. Mary's Law Journal

Abstract forthcoming.

Treating Runaway Youth As Criminals: Wrongfully Silencing Their Voices And Issuing Arrest Warrants, Tziona Breitbart

Cardozo Journal of Equal Rights & Social Justice

The note argues that criminalizing runaway youth through the use of arrest warrants and court involvement is harmful and counterproductive. It advocates for a shift in approach, emphasizing the need to prioritize the voices and well-being of runaway youth, eliminate punitive measures, and provide supportive services to address the root causes of their behavior.

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

Articles

In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

Upaya Hukum Pemegang Fidusia Terhadap Penyitaan Objek Jaminan Berdasarkan Putusan Pengadilan Negeri Nomor 305/ Pdt.G/2019/Pn.Jkt.Utr., Fricilia .

Indonesian Notary

Penelitian ini membahas mengenai kasus perdata yang diperiksa dan diadili di Pengadilan Negeri Jakarta Utara dengan perkara Nomor 305/Pdt.G/2019/PN.Jkt.Utr. Pihak Penggugat adalah perusahaan yang bergerak dalam pembiayaan leasing, sedangkan Tergugat adalah perorangan yang telah mendapatkan fasilitas kredit dari Penggugat. Kemudian dalam perjalanannya Tergugat wanprestasi dalam hal menunggak pembayaran yang diketahui bahwa Tergugat sedang dalam kasus tindak pidana narkotika serta objek jaminan fidusia menjadi barang sitaan Kejaksaan Negeri Jakarta Utara untuk dimusnahkan. Penggugat melakukan gugatan dan sita jaminan dimana berdasarkan putusan Pengadilan Negeri Nomor 305/Pdt.G/2019/PN.Jkt.Utr., Penggugat dimenangkan dan kemudian dikeluarkan sita jaminan kendaraan atas milik Tergugat untuk diserahkan ke Penggugat. Adapun …

Courts Beyond Judging, Michael C. Pollack

BYU Law Review

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Using Random Assignment To Measure Court Accessibility For Low-Income Divorce Seekers, James D. Greiner, Ellen L. Degnan, Thomas Ferriss, Roseanna Sommers

Articles

We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file …