Courts Commons^™

Covid-19'S Impact On Families, Lawyers, And Courts: An Annotated Bibliography, Allen K. Rostron

Faculty Works

No abstract provided.

Textualism, Dynamism, And The Meaning Of "Sex", Bill Watson

Cardozo Law Review de•novo

A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries critically examines textualism, both in general and as applied in Bostock v. Clayton County. This Essay makes three points in reply. First, the authors criticize strawman versions of textualism that no mainstream legal interpreter claims to hold. Second, the authors’ examples of “societal dynamism” do not put any pressure on textualism properly understood. And third, the authors’ corpus-linguistics analysis of the word “sex” is, from a textualist perspective, irrelevant to the issue in Bostock.

Brief Of Black Women Law Scholars As Amici Curiae In Support Of Respondents, Students For Fair Admissions, Inc. V. President And Fellows Of Harvard College And Univ. Of N.C., Suzette Malveaux

Scholarly Articles

Amici are Black women law scholars who, based on their professional and personal experiences, share a deeply rooted commitment to defending the legality of race-conscious admissions policies in educational institutions across the country. They submit this brief to present their unique and vital perspective on the history, constitutionality, and importance of race-conscious programs like those adopted by Harvard University and the University of North Carolina (“UNC”).

Review Of Veterans Law Decisions Of The Federal Circuit, 2021 Edition, 71 Am. U. L. Rev. 1619 (2022), Angela Drake, Yelena Duterte, Stacey Rae Simcox

UIC Law Open Access Faculty Scholarship

No abstract provided.

Address At The Constitution Day Convocation Of The University Of South Carolina School Of Law, J. Michael Luttig

South Carolina Law Review

This Article is a minimally edited transcript of The Honorable J. Michael Luttig’s Address given on September 15, 2022 at the University of South Carolina School of Law’s Constitution Day Convocation. Judge Luttig served on the United States Court of Appeals for the Fourth Circuit 1991–2006.

A Novel Approach To Deriving Sentencing Frameworks – Sentencing As A Science And/Or Art? Supreme Court Case Summary: Takaaki Masui V Public Prosecutor, Keith Ian Ray Toh, Shawn De Xian Ang

Singapore Law Journal (Lexicon)

In Takaaki Masui v Public Prosecutor and another appeal and other matters [2021] 4 SLR 160 (“Masui v PP”), the High Court (“HC”) introduced a new sentencing framework for purely private corruption offences under ss 6(a) and 6(b) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”). Significantly, the HC utilised mathematical concepts to evaluate and determine the content of sentencing frameworks, and also employed multiple two-dimensional and three-dimensional (“2D” and “3D”) graphs to represent various sentencing frameworks. This case summary will explore the analytical method employed by the HC and discuss whether the new sentencing framework …

Giants Of Contract Law – Some Personal Reflections, Hon. Andrew Phang

Singapore Law Journal (Lexicon)

The law of contract may seem mostly technical and, on occasion, even overly theoretical. However, if one looks more closely at its foundations as well as scholarship, it is clear that contract law has much greater value to offer us. In that regard, the present essay has two main aims. The first is the give a brief account of the lives as well as scholarship of four giants of contract law whom we have lost in the past few years. Indeed, it may be said that their scholarship has contributed to the foundational bedrock of the law of contract as …

State Rejection Of Federal Law, Thomas B. Bennett

Faculty Publications

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …

The Insidious Effect Of Soundbites: Why Fences Aren't Punishment, Theresa Gabaldon

American University Law Review

This Article was inspired by two recent Supreme Court decisions dealing with the ability of the Securities and Exchange Commission to seek disgorgement of unlawfully obtained profits. The topic, however, is not disgorgement. That is a different article, published by the author in the Cornell Lazu Reviezu in 2020, on which this one builds. This Article focuses instead on jurisprudential methodology. The Court has begun to exhibit an unfortunate penchant for jurisprudence by soundbite—the functional equivalent of Googling its ozun precedents for pithy quotes taken out of context from inapt cases. The results are, to put it politely, mischievous.

This …

Judicial Review Of Emergency Administration, Desiree Leclercq

American University Law Review

This Article seeks to describe and defend the judicial review of federal agencies’ responses to national emergencies - what I refer to as “emergency administration.” That may prove difficult. Agencies are experts in their respective fields. During emergencies, scholars and policymakers assume that judges will defer to that expertise under the Administrative Procedure Act (APA ). On January 13, 2022, the Supreme Court defied that assumption when it blocked the Biden Administration s workplace vaccine and masking rules. Critics now assume that judges are reviewing emergency administration to constrain regulation. Both assumptions conclude that judicial review is neither sincere nor …

The War In Ukraine And The Legitimacy Of The International Criminal Court, Yvonne Dutton, Milena Sterio

American University Law Review

The news of the many atrocities being committed as the war in Ukraine rages on has prompted a chorus of calls seeking to hold perpetrators accountable. Heralded as a critical player is the International Criminal Court (the ICC or “Court”). Unlike in the past where states have decried requests to increase the Court’s budget or refused to cooperate with the Office of the Prosecutor’s (“OTP”) efforts to gather evidence or arrest suspects, states are generously donating funding and other resources to bolster the Court’s likelihood of bringing successful prosecutions.

This Article argues that the unique situation surrounding state support for …

The Immigration Court: Zigzagging On The Road To Judicial Independence, Mimi Tsankov

University of Colorado Law Review

The Article will begin by outlining the basic structure of the existing system and identifying some of the key changes that have impacted IJs (Immigation Judges) on the bench, which have driven us to a moment in history that many argue is our most tenuous. Part I will offer a brief overview of our court structure for context. Part II will explain how, after a tumultuous five years, Immigration Courts are currently significantly tarnished such that rehabilitation of the existing system may serve a short-term purpose but will inevitably fail to address the larger, fundamental inequities that result from a …

Crime And Excessive Punishment: How The Courts Accelerate The Race To Recidivism, Rachel Kunjummen Paulose

Lewis & Clark Law Review

Congress wants citizens to believe that it is very tough on crime. In federal statutes, as well as in the United States Sentencing Guidelines, authorities have imposed heightened penalties on criminals whose history demonstrates violence, a propensity for aggravated conduct involving guns and drugs, or a repetitive disregard for the law.

Who is an armed career criminal? What is an aggravated felony? Who is a career offender? Congress cannot be bothered with the details, but it assures an anxious public that it will lock up all these bad guys and throw away the key. Words matter in the law. By …

One Step Backward: The Ninth Circuit's Unfortunate Rule 404(B) Decision In United States V. Lague, Dora Klein

Faculty Articles

The federal courts' current approach to character evidence is widely recognized as problematic. Although Rule 404(b)(1) categorically prohibits the use of character evidence, Rule 404(b)(2) presents a list of examples of permitted purposes that has tempted courts to view the admission of other-acts evidence as proper so long as the evidence is merely relevant to a non-character purpose. Additionally, courts have misconstrued the inclusive structure of Rule 404(b) as creating a presumption

in favor of admissibility. Recent efforts to correct this mistakenly permissive view include decisions by several of the federal circuit courts of appeals recognizing that Rule 404(b) requires …

Originalism And The Inseparability Of Decision Procedures From Interpretive Standards, Michael L. Smith

Faculty Articles

In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism's advocates and critics. Originalists argue that certain historical facts determine the Constitution's meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a

standard to judge interpretations.

This Article takes issue with this approach. Originalism is not like other instances in law where statutes or …

Systemic Risk Of Contract, Tal Kastner

Scholarly Works

Complexity and uncertainty define our world, now more than ever. Scholars and practitioners have celebrated modular contract design as an especially effective tool to manage these challenges. Modularity divides complex structures into relatively discrete, independent components with simple connections. The benefits of this fundamental drafting approach are intuitive. Lawyers divide contracts into sections and provisions to make them easier to understand and reduce uncertainty. Dealmakers constructing complex transactions use portable agreements as building blocks to reduce drafting costs and enable innovation. Little attention, however, has been paid to the risks introduced by modularity in contracts. This Article demonstrates how this …

The Long Shadow Of United States V. Rosenberg: A Biographical Perspective On The Hon. Irving Robert Kaufman, Rodger D. Citron

Scholarly Works

No abstract provided.

Mapping The Civil Justice Gap In Federal Court, Roger Michalski, Andrew Hammond

UF Law Faculty Publications

Unrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts. Despite their importance, we still know little about who these pro se litigants are. Debates about pro se litigation take place without sufficient empirical information. To help fill some of the gaps in our understanding of pro se litigants, this Article takes a new approach by mapping where pro se litigants live.

Using a massive data set of 2.5 million federal dockets from a ten-year period, we obtained addresses of non-prisoner pro se litigants. We then geolocated these addresses and cross-referenced that information …

Recognizing A Fundamental Right To A Clean Environment: Why The Juliana Court Got It Wrong And How To Address The Issue Moving Forward, Robert Kemper

FIU Law Review

As the existential threat of climate change becomes increasingly prevalent, U.S. plaintiffs, lawyers, and activists have begun seeking redress in federal courts arguing for recognition of a constitutional right to a clean environment. Recently, in Juliana v. United States, the Ninth Circuit explicitly recognized the grave threat of climate change for the health, well-being, and security of the American people and the nation as a whole. Additionally, the court found that the U.S. government has contributed to climate change through both inaction and policy decisions that promote the use of fossil fuels. The plaintiffs claimed that they had a constitutional …

State V. Hampton-Boyd, 253 A.3d 418 (R.I. 2021, Brian W. Murphy

Roger Williams University Law Review

No abstract provided.

The Jury Veto, Stephen E. Henderson

Faculty Articles

While the American civic religion is to be distrustful of government, feelings of discontent regarding our systems of criminal investigation and adjudication feel historic. And while those systems are capable of great carnage en route, the endgame is, ultimately, criminal punishment. Yet before punishment can be imposed, every prosecution—and therefore every defendant—is meant to encounter a potential “circuit breaker”: the jury. I propose that we re-inject this democratic voice into our criminal adjudications, but through an entirely novel structure: the defendant (and perhaps the prosecutor) would have the choice of invoking a jury empowered to ‘veto’ any judicial sentence. By …

The Finality Of Unmodified Appellate Commissioner Rulings In Washington State, Aurora R. Bearse

Washington Law Review Online

In Washington appellate courts, unelected court commissioners handle most of the motion practice. Some motions are minor and mostly procedural, but other motions touch on the scope of the appeal or its merits. Because commissioners have the power to shape the course of an appeal, the Washington Rules of Appellate Procedure allow parties to internally appeal any commissioner decision to a panel of elected judges, via what is called a “motion to modify” under RAP 17.7. If a panel modifies a commissioner’s ruling, the panel’s decision becomes the final decision of the court on that issue. Similarly, multiple opinions recognize …

Delusions, Moral Incapacity, And The Case For Moral Wrongfulness, Lea Johnston

Indiana Law Journal

Responsibility is a legal—not medical—construct. However, science can be useful in exposing faulty assumptions underlying current doctrine or practice, illuminating changes in practice or evidentiary standards to better effectuate the law’s animating purpose, and even suggesting updates to legal standards to account for modern understandings of functionalities of concern. This Article uses the science of delusions to assess the law regarding, and practice of establishing, criminal irresponsibility for defendants with psychosis. Over the last two decades, researchers from the cognitive sciences have compiled strong evidence that a host of cognitive and emotional impairments contribute to the origin and maintenance of …

"On The Eve Of Destruction": Courts Confronting The Climate Emergency, Mary Christina Wood

Indiana Law Journal

In the dim and smokey twilight, with only bare necessities in tow, a family rushes to escape the wildfire racing toward them. Elsewhere, a household evacuates just ahead of a category five hurricane, perhaps not for the first time. Along the coastlines, countless others are resigned to looking on as their homesites erode into the inexorably rising surf. At this moment, millions of Americans are forced to reckon with the horrors of the climate catastrophe, and the number of such people who now viscerally grasp our grim climate reality grows every day. Even the judges of this nation prove no …

End Of Life, Elder Abuse, And Guardianship: An Exploration Of New York’S Surrogate Decision-Making Framework, Tristan Sullivan-Wilson, Esq., Deirdre Lok, Esq., Joy Solomon, Esq.

Touro Law Review

The best end of life care is always that which aligns with the wishes and values of the incapacitated person. For individuals with the capacity to execute advance directives, these documents and conversations with appointed surrogates are the clearest way to make care values known. However, the time, access, and ability to engage in advance planning is not an opportunity equally afforded.For those without advance directives and now involved in a guardianship proceeding, the party petitioning or otherwise involved in the case should consider addressing end of life decision-making directly in the guardianship hearing when major medical decision-making power may …

Blurring The Line Between Student And Employee: Exploitation Of For-Profit College Students, Michele Abatangelo

Touro Law Review

For decades, for-profit colleges throughout the United States have exploited their students through a predatory business model. In February 2022, the Education Department approved $415 million in borrower defense claims for nearly 16,000 students who attended for-profit schools finding that these schools misrepresented post-graduation employment prospects. For-profit colleges also use manipulative recruitment tactics such as targeted advertising of low-income and minority students and providing false information to prospective students about loan repayment obligations post-graduation. Some for-profit institutions also rely on student labor in their facilities rather than hiring paid employees. This review discusses why it is imperative that courts scrutinize …

Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais

Touro Law Review

Currently, the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution provides minimal constitutional safeguards against discrimination based on sexual orientation. Laws that treat queer Americans differently than their straight counterparts are presumptively constitutional if those laws bear a rational relationship to any legitimate government interest. Consequently, states may limit same-goods and services of certain businesses, and qualify for government programs. The Supreme Court established enhanced equal protection guarantees for classifications based on race, ethnicity, and national origin which are deemed suspect classifications. These classifications will only survive judicial review if the government proves the law is necessary …

How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat

Touro Law Review

There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …

Improper Distinction Under The Ada Leads To An Irrational Outcome: Favoring One Life Over Another, Daniel Frederick Parise

Touro Law Review

Society has a distorted view of those battling addiction and essentially marks them with a sign of disgrace; however, what society may not fully understand is that addiction is a disability beyond the afflicted individual’s control. The National Survey on Drug Use and Health indicates that 19.7 million Americans have battled a substance use disorder in their life. Of the 19.7 million Americans who battled illicit substance use disorders, approximately seventy-four percent also struggled with alcohol use disorder.

Based on these statistics, it is clear that illicit drug use disorders are often interconnected with alcohol use disorders. However, Congress makes …

Once Mentally Ill, Always A Danger? Lifetime Bans On Gun Ownership Under Fire Following Involuntary Commitment, Amanda Pendel

Touro Law Review

18 U.S.C. § 922(g)(4) imposes a lifetime ban on those who have been involuntarily committed to a mental institution from purchasing, or possessing a firearm, regardless of an extended passage of time, or a finding that the individual is unlikely to pose a danger to themselves or the public. Three circuits have created a split concerning the constitutionality of this statute. The Third Circuit held in Beers v. Attorney General United States that those involuntarily committed were outside of the scope of the Second Amendment; therefore, the § 922(g)(4)’s categorical ban is constitutional. Next, the Ninth Circuit in Mai v. …