Courts Commons^™

Missing Decisions, Merritt E. Mcalister

UF Law Faculty Publications

Significant numbers of federal appellate merits terminations—those decisions resolving appeals and other proceedings on the merits—are missing from Westlaw and Lexis, the leading commercial legal databases. Bloomberg Law has similar, and similarly incomplete, coverage. Across most of the circuits huge percentages—at least 25% or more—of the courts’ self-reported merits terminations, which predominately include unpublished adjudications, never make their way to navigable databases.

Although scholars have long considered how publication practices shapes access to court decisions—especially at the district court level—this is the first work to analyze commercial database access to unpublished federal appellate decisions. Since at least 2007, when a …

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica Steinberg, Anna Carpenter, Colleen Shanahan, Alyx Mark

Faculty Articles

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Seeing Those We’Ve Rendered Invisible – A Clarion Call For Criminal Justice, Stephen E. Henderson, Jordan Thomas

Faculty Articles

Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press 2020) In this brief review, we situate Rapping’s work among those demanding criminal justice reform, praise an unrelated bonus, and propose a friendly amendment to nudge his vision over the finish line of justice. It will not be enough to provide newly enabled and supported public defenders to those our systems consider indigent. We ought to provide them to us all.

Population-Based Sentencing, Jessica M. Eaglin

Articles by Maurer Faculty

The institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses. How have courts responded to this trend? Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques. First, the courts have expanded individual procedural rights into sentencing where they once did not apply. Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn

Touro Law Review

No abstract provided.

Reconstructing The Voting Rights Act: Subnational Action And Voting Rights Post-1965, Sean M. Holly

Honors Theses

The discussion of suffrage and the development of the U.S. electorate is misguidedly based solely around federal action; constitutional amendments and federal legislation are commonly revered as primary determinants of the right to vote. This tendency poses a specific problem with contemporary discussions of the Voting Rights Act of 1965. Specifically, discussions of the VRA ignores the ability of subnational actors to innovate politically and readjust their vehicles of political development in the wake of federal supposition of state powers. The Voting Rights Act did not destroy state authority regarding the right to vote; it merely disrupted their vehicles of …

The Political Reality Of Diversity Jurisdiction, Richard D. Freer

Faculty Articles

Diversity jurisdiction survived concerted frontal assaults made from the mid- to late-twentieth century. It weathered criticism of academics and of some high-profile federal judges. Today, diversity jurisdiction represents a burgeoning percentage of the federal civil docket, and it is supported by an efficiency rationale that did not exist at the founding. Today, academics and judges seem relatively ambivalent toward, and some even accepting of, diversity jurisdiction. Today, we see efforts not to abolish diversity jurisdiction, but to rationalize the various threads of its doctrine.

These efforts should be informed by the lessons that should have been learned by those who …

Religious Alternative Dispute Resolution In Israel And Other Nations With State-Sponsored Religious Courts: Crafting A More Efficient And Better Relationship Between Rabbinical Courts And Arbitration Law In Israel, Michael J. Broyde, Ezra Ives

Faculty Articles

This paper proposes the expansion of both private and public options regarding religious arbitration in Israel, broadening both the choice of law and the choice of forum available to Israeli citizens in cases of either commercial law or issues of status (such as divorce, marriage, and conversion). The current law in Israel prohibits citizens from adjudicating their monetary disputes in state religious courts and treats private religious courts as no different from any other arbitration tribunal, precluding these private religious courts from marriage, divorce and conversion matters. We propose that both of these restrictions be lifted, while the role of …

Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook

Faculty Articles

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …

International Commercial Courts In The United States And Australia: Possible, Probable, Preferable?, S. I. Strong

Faculty Articles

As worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a …

Of Arms And The Militia: Gun Regulation By Defining “Ordinary Military Equipment”, Edward J. Curtis

Touro Law Review

Recent mass shootings have placed pressure on Congress and state legislatures to regulate semi-automatic rifles and handguns in the interest of public safety. However, the Second Amendment provides that, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. There is no obvious public safety exception.

Semi-automatic rifles, handguns, and other kinds of arms can be regulated more effectively by defining the “ordinary military equipment” militia members are expected to provide. This may be accomplished using the rationale employed by the United States …

Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan

Touro Law Review

Under Jewish law, mercy and compassion are essential principles to ensure the presence of a just legal system. Not only do mercy and compassion in the law preserve traditional values of human dignity, implementing a more compassionate legal system has practical benefits in both the spheres of legal judgment and of legal punishment. This article will compare the Jewish legal system’s application of these necessary doctrines to how other modern legal systems, including the American legal system, implement mercy and compassion. As a result of this in-depth comparison, this article recommends that the American legal system, and other modern legal …

Rethinking Appeals, Uri Weiss

Touro Law Review

This paper makes the point that a court decision that is open to an appeal is akin to a take-it-or-leave-it settlement proposal for both parties. For the case to not be appealed, both parties need to “take,” i.e., accept, this proposal. Thus, on one hand, if both parties cannot achieve a settlement by themselves, they usually benefit from the right to appeal. On the other hand, a right to appeal activates the regressive effects that characterize settlements, which also applies to lower-court decisions. For example, legal uncertainty has a regressive effect on lower-court decisions: if the judge wishes to block …

Yes, “Stealthing” Is Sexual Assault… And We Need To Address It, Mikaela Shapiro

Touro Law Review

Nonconsensual condom removal, more popularly known as “stealthing,” exposes victims to potential physical risks such as pregnancy and disease and, as victims make clear, feelings of violation and shame. Such condom removal changes sex from consensual sex into nonconsensual sex. There are currently no laws criminalizing stealthing in the United States. This Note considers possible criminal and civil remedies victims may seek in a court of law. Conditional consent, initial consent to sexual activity that is contingent upon intercourse with a condom and may be revoked once that condom is removed, is a key factor in stealthing cases. Ultimately, this …

Slapps Across America, Jack Toscano

Touro Law Review

The Supreme Court’s landmark decision in New York Times v. Sullivan was meant to protect our fundamental right to free speech from defamation lawsuits. However, Strategic Lawsuits Against Public Participation, known as SLAPPS, continue to chill free speech through weak but expensive to defend defamation lawsuits. In response to SLAPPs many states have passed anti-SLAPP statutes that are meant to identify SLAPPs, quickly dismiss SLAPPS, and punish plaintiffs who bring SLAPPs. A difficult issue for federal courts throughout the country is whether these state anti-SLAPP statutes should apply in federal courts. This Note examines the Supreme Court opinions in Shady …

The Long Shortlist: Women Considered For The Supreme Court, Michael Conklin

Journal of Race, Gender, and Ethnicity

No abstract provided.

Court Packing Is A Chimera, Brian L. Frye

Law Faculty Scholarly Articles

The dream of the 1930s is alive in Washington. Democrats see

Republicans hemorrhaging voters as Trump struggles with the

economy and the pandemic and are salivating at the prospect of

retaking not only the White House, but also the Senate. Of course, you

should never sell a bearskin until you've caught the bear. But even a

blowout victory can't get Democrats the prize they really want, a

Supreme Court majority. So, in back-to-the-future fashion, many

progressives are pushing the idea of court packing. After all, in politics,

rules are made to be broken.

Oral Argument In The Time Of Covid: The Chief Plays Calvinball, Matthew Sag, Tonja Jacobi, Timothy R. Johnson, Eve M. Ringsmuth

Faculty Publications & Other Works

In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in-person by the current Court and examine whether the justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female justices disproportionately more than the male justices and gave the male justices more …

Correction Of Monumental Judicial Malpractice: The Case For Clearing Secessionist And Slaveholding Symbols Of "Justice" From The Courthouse, Michael J. Pastrick Esq.

Mitchell Hamline Law Review

No abstract provided.

The Evolution And Jurisprudence Of The Foreign Intelligence Surveillance Court And Foreign Intelligence Surveillance Court Of Review, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’s roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Assertion And Hearsay, Richard Lloret

Dickinson Law Review (2017-Present)

This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

Scholarly Works

This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was …

Talking Back In Court, M. Eve Hanan

Scholarly Works

No abstract provided.

What Is The Meaning Of "Plain Meaning", Jeffrey W. Stempel

Scholarly Works

The American approach to construing texts (statutes, regulations, contracts and documents generally) stresses decision through determining the “plain meaning” of the document based on the court’s reading of the text. Where the court finds plain meaning on the face of text, it generally refuses to consider additional contextual information or extrinsic evidence of meaning.

Notwithstanding its status as the dominant approach to interpretation, the plain meaning concept has not been well defined or operationalized. Despite judicial confidence in the plain meaning approach, courts have wisely been willing to sidestep it and eschew the rather clear facial meaning of text when …

Blind Justice: Virginia’S Jury Sentencing Scheme And Impermissible Burdens On A Defendant’S Right To A Jury Trial, Mitchell E. Mccloy

Washington and Lee Law Review

This Note argues that Virginia’s mandatory jury sentencing scheme, which bars juries from reviewing state sentencing guidelines, impermissibly burdens a defendant’s Sixth Amendment right to a jury trial. By analyzing both judge and jury sentencing guidelines compliance rates from the past twenty-five years, this Note demonstrates that in Virginia, a defendant has a significantly higher chance of receiving a harsher sentence after a jury trial than after a bench trial or a guilty plea. Given that judges rarely modify jury sentences, the defendant is effectively left with a choice between two different sentences before plea negotiations can even begin.

Because …

No, The Firing Squad Is Not Better Than Lethal Injection: A Response To Stephanie Moran’S A Modest Proposal, Michael Conklin

Seattle University Law Review

In the article A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, Stephanie Moran argues that the firing squad is the only execution method that meets the requirements of the Eighth Amendment. In order to make her case, Moran unjustifiably overstates the negative aspects of lethal injection while understating the negative aspects of firing squads. The entire piece is predicated upon assumptions that are not only unsupported by the evidence but often directly refuted by the evidence. This Essay critically analyzes Moran’s claims regarding the alleged advantages of the firing squad over …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Year In Review: The Federal Circuit's 2020 Government Contract Law Decisions, The Honorable Jeri Kaylene Somers, Jedidiah Blake Ii, Matthew Gurr, Benjamin Phillips Iii

American University Law Review

This Article discusses a number of important 2020 government contracts decisions from the U.S. Court of Appeals for the Federal Circuit. As in previous years, appeals involving government contracting issues comprised only a small portion of the Federal Circuit’s docket, the majority of which is consistently intellectual property disputes. Although only comprising a small portion of the docket, the government contracts appeals that the Federal Circuit considered in 2020 covered a wide range of topics. This year-in-review first addresses Federal Circuit decisions across three major issues in government contracts appeals—cost and pricing, contract interpretation, and bid protests—before examining other significant …