Courts Commons^™

Law School News: Rwu Law Recognized By White House 01-28-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Reconceiving Ethics For Judicial Law Clerks, Gregory Bischoping

St. Mary's Journal on Legal Malpractice & Ethics

Judicial law clerks hold a unique and critical position in our legal system. They play a central part in the functioning of the judiciary, oftentimes writing the first draft of their judge’s opinions and serving as their trusted researcher and sounding board. Moreover, they are privy to the many highly confidential processes and private information behind the important work of the judiciary. It stands to reason the comprehensive set of ethical duties that bind the world of lawyers and judges should also provide guidance for judicial law clerks. The most important among those ethics rules is a duty of confidentiality. …

Resolving The Anders Dilemmas: How & Why Texas Should Abandon The Anders Procedure, Michael J. Ritter

St. Mary's Journal on Legal Malpractice & Ethics

When an indigent defendant has a right to counsel for an appeal, and counsel believes the appeal is wholly frivolous, Texas has adopted the Anders v. California procedure that permits counsel to withdraw from representation and argue to the appellate court why their client’s appeal is wholly frivolous. This Article argues that, either by a change to the disciplinary rules or by judicial decision, Texas should abandon the Anders procedure as other states have. Doing so will promote the integrity of the right to counsel, avoid numerous conflicts and dilemmas created by the Anders procedure, and advance judicial efficiency and …

The Overreach Of Limits On 'Legal Advice', Lauren Sudeall

Vanderbilt Law School Faculty Publications

Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice.

Applying Products Liability Law To Facebook’S Platform And Algorithms: Addiction, Radicalization, And Real-World Harm, Grant W. Shea

Law Student Publications

Facebook has become central to the lives of millions of Americans. As of 2021, 69% of U.S. adults use Facebook. Among those U.S. adults who use Facebook, roughly 70% visit Facebook at least once a day. Moreover, as of 2020, 36% of U.S. adults receive their news through Facebook. That means roughly 60 million U.S. adults receive their news through Facebook each day. Facebook’s impact on American society cannot be overstated when viewed through such a lens. Thus, it is important to ensure Facebook responsibly designs its products: its platform and its algorithms.

Analysis Of The Application Of The Code Of Ethics Of Judges And Jurors (2022), James Moliterno, Jemali Saiti, Ana Pavlovska-Daneva, Andrej Bozhinovski

Books and Chapters

No abstract provided.

Movement Judges, Brandon Hasbrouck

Scholarly Articles

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable …

Riding To The Rescue: The Conditional Spending And Commandeering Jurisprudence Of Sandra Day O’Connor In An Era Of Federal Overreach, Meryl Justin Chertoff

SALPAL Papers & Reports

No abstract provided.

Robert Cover’S Love Of Stories: A Rumination On His Wanting To Discuss The Brothers Karamazov With Me Across Five Conversations During The Last Five Years Of His Life, With An Application To The Chauvin Murder Trial Of 2021, Richard H. Weisberg

Touro Law Review

The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of …

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Touro Law Review

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …

Is Extraterritoriality The Golden Ticket Out Of Corporate Liability? How The Modern-Day Willy Wonka’S Chocolate Factory Evaded Liability Under The Alien Tort Statute In Nestlé V. Doe, Alyaa Chace

Touro Law Review

The Alien Tort Statute (“ATS”) was drafted as part of the Judiciary Act of 1789. It was intended to provide federal courts with the jurisdiction to hear civil actions brought by foreign plaintiffs for torts committed in violation of the law of nations or other United States treaty. After a two-hundred-year dormancy period, the Statute has since been revived and become a vehicle by which foreign plaintiffs seek redress for environmental and human rights offenses carried out on foreign soil, often at the hands of United States corporations. However, the Supreme Court continues to limit the reach of the Statute, …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Utah Law Faculty Scholarship

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power …

Aging, Health, Equity, And The Law: Foreword, Joan C. Foley

Touro Law Review

No abstract provided.

Arthur A. Thomas: A Hero Of A Valet, Todd C. Peppers

Scholarly Articles

During his time on the Supreme Court, Justice Oliver Wendell Holmes Jr. was the beneficiary of adulation from his legal secretaries (today we refer to them as law clerks) and young legal scholars, like Felix Frankfurter and Harold Laski. While the Justice basked in the warm glow of their hero worship, he was quick to point out to them that “no man is a hero to his valet.” The phrase was not original to Holmes, although the expression sounds like it sprang from his clever mind. The underlying meaning is simple—the servant tending daily to his employer sees flaws and …

Do Seven Members Of Congress Have Article Iii Standing To Sue The Executive Branch?: Why The D.C. Circuit’S Divided Decision In Maloney V. Murphy Was Wrongly Decided In Light Of Two Prior District Court Decisions And Historical Separation Of Powers Jurisprudence, Bradford Mank

Faculty Articles and Other Publications

The D.C. Circuit’s divided decision in Maloney v. Murphy granting standing to minority party members of the House Oversight Committee appears questionable in light of two prior district court decisions in Waxman and Cummings that had denied standing in similar circumstances. Most importantly, Maloney is inconsistent with Supreme Court precedent regarding standing for individual members of Congress. In Raines v. Byrd, the Supreme Court held that individual members of Congress generally do not have standing to enforce institutional congressional interests such as whether a statute is constitutional, but that one or both Houses of Congress must sue as an institution. …

The Americans With Disabilities Act Amendments Act: What About Reasonable Accommodation? Where Are We Now?, Teressa Elliott, Kathleen A. Carnes

Touro Law Review

The Americans with Disabilities Act Amendments Act (“ADAAA”) was passed in 2008 and became effective on January 1, 2009. There are issues regarding reasonable accommodation that have arisen in connection with this Act. This article first explains what changes were made to the ADA’s employment-related provisions with the ADAAA and also explains the relevant U.S. Supreme Court cases that led to passage of the ADAAA. Reasonable accommodation under the Act and reasonable accommodation cases are then discussed as well as the U.S. Airways v. Barnett case. We then end with ways to interpret these cases for guidance and the conclusion …

Contents

Tennessee Law Review

No abstract provided.

Choice Of Law And Time, Jeffrey L. Rensberger

Tennessee Law Review

Choice of law is usually thought of as a problem of law across geography, of how laws apply to persons and events not entirely within a state's boundaries. But time is another dimension to the choice of law problem. In cases wholly domestic to a single state, this temporal issue appears when a court considers whether a change in law has retroactive application. But changes in law occur in interstate cases as well. Moreover, the facts relevant to a choice of law analysis may change between the time of the underlying events and the litigation. Does the court consider facts …

Contents

Tennessee Law Review

No abstract provided.

Opioid Accountability, Daniel G. Aaron

Tennessee Law Review

The opioid crisis has steadily killed Americans for twenty years. In total, we have lost more than 500,000 American lives since the 1990s, and countless more suffer from chronic addiction.

After years of piecemeal efforts to address this massive loss of life and health, the opioid litigation, largely centralized in Ohio federal district court, has brought significant hope for change. But there is a notable divide between the popular sense of the litigation and its reality. A full 57% of Americans believe that opioid companies should be held accountable for precipitating a public health crisis. However, the litigation, has been …

Antitrust's Ai Revolution, Daryl Lim

Tennessee Law Review

Antitrust law operates like an algorithm. Its lodestar, the rule of reason, is a black box. Unlike most other areas of the law, judges, not Congress, write the rules and sometimes in surprisingly capricious ways. These rules govern everything from Google and Facebook's "killer acquisitions" to vaccine development agreements during a pandemic. Injecting artificial intelligence (AI) into antitrust analysis seems prosaic, but in fact, it is revolutionary.

Courts routinely lean on ideology as a heuristic when they must interpret the rule of reason in light of economic theory and evidence. Chicago School conservatism reined in some excesses of earlier populist …

Contents

Tennessee Law Review

No abstract provided.

Case Index

Tennessee Law Review

No abstract provided.

Dna Exonerations And Stakeholder Responses: A Case Of Cognitive Dissonance, Anne Richardson Oakes, Julian Killingley

Tennessee Law Review

The availability of DNA testing developed in the 1980s transformed the ability of prosecutors to secure convictions while providing Innocence Projects with the tools to overturn them. However, DNA exonerations which establish conclusively that a person convicted of a crime is in fact innocent, can represent a major threat to the value systems and therefore the self-belief of stakeholders who acted in good faith and in the genuine but mistaken belief that the exoneree was guilty. This Article reports on the findings of an investigation into stakeholder responses to DNA exonerations between 1990-1999 when DNA evidence was new and more …

The Not-So-Odd Couple: Specific Personal Jurisdiction And Party Joinder, Haley Palfreyman Jankowski

Tennessee Law Review

Traditionally, scholars and courts alike have thought of joinder of parties and personal jurisdiction as separate questions. Party joinder determined who should be in the lawsuit, whereas personal jurisdiction determined what power courts could exercise over those parties-a question that invariably becomes more complicated when more parties are added to the lawsuit. The Supreme Court's 2017 decision in Bristol-Myers Squibb Co. v. Superior Court forced a reckoning between these two areas of civil procedure. In Bristol-Myers Squibb, the Court irreversibly connected specific personal jurisdiction and party joinder by holding that non-Californian plaintiffs could not be part of a California lawsuit …

Does Motive Also Follow The Bullet? Transferred Intent And Violent Crimes In Aid Of Racketeering, Melvin L. Otey

Tennessee Law Review

No abstract provided.

Taxing Creativity, Xuan-Thao Nguyen, Jeffrey A. Maine

Tennessee Law Review

The recent sell offs of song catalogs by Bob Dylan, Stevie Nicks, Neil Young, and Mick Fleetwood for extraordinarily large sums of money raise questions about the law on creativity. While patent and copyright laws encourage a wide array of creative endeavors, tax laws

governing monetization of creative works do not. The Songwriters Capital Gains Equity Act, in particular, solidifies creativity exceptionalism, exacerbates tax inequities among creators, and perpetuates racial disparities in the tax Code. This Article asserts that the law must encourage creativity from all creators. It is time to eliminate tax exceptionalism for musical compositions or expand its …

How Do You Solve A Problem Like Sb8? Flagrantly Unconstitutional Laws, Procedural Scheming, And The Need For Pre-Enforcement Offensive Litigation, Kimberley Harris

Tennessee Law Review

Reproductive rights are facing multiple existential threats. While the Supreme Court has overturned the constitutional right to pre- viability elective abortions in Dobbs v. Jackson Women's Health Organization, in Texas the ability to obtain a pre-viability abortion vanished almost ten months earlier. With the enactment of S.B. 8, the so-called "Texas Heartbeat Act," abortions after approximately the sixth week of pregnancy, including those that result from rape or incest, were banned months before the Court ruled in Dobbs. Despite being clearly unconstitutional under the then-existing precedent of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, the Texas …

The Present Public Meaning Approach To Constitutional Interpretation, Michael L. Smith

Tennessee Law Review

Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism fall flat if critics fail to propose a preferable alternative to originalism. After all, it takes a theory to beat a theory. This Article proposes such a theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This alternative has attracted surprisingly little discussion in the originalist …

Workplace Harasser Liability: Assailing Moral Hazards And Rehabilitating The Individualist Approach, Ryan H. Nelson

Tennessee Law Review

The focus of recent workplace harassment scholarship has been on irreproachable workplaces. Without detracting from that literature, this Article seeks to rehabilitate the individualist approach as a worthy supplement to institutional liability. It explicates, contextualizes, and outlines solutions to the moral hazards that would shelter workplace harassers from the risks of individual harasser liability if such liability ever comes to pass, thereby reclaiming the deterrent potential of the individualist approach. This Article begins by exploring how, without additional law reform, individual harasser liability would fail to optimally deter workplace harassment in two regards. First, it presents and analyzes original empirical …