Courts Commons^™

Originalism And Personal Jurisdiction: Several Questions And A Few Answers, Lawrence B. Solum, Max Crema

Faculty Scholarship

The modern constitutional law of personal jurisdiction is largely the product of living constitutionalism. International Shoe's minimum-contacts and fairness standard was not derived from the constitutional text, and it cannot be supported by the original meaning of the Due Process of Law Clauses of the Fifth and Fourteenth Amendments. This Article explores the implications of that fact for the constitutional law of personal jurisdiction, with a focus on the federal courts.

The Article proceeds in six steps. First, it lays out the theoretical framework provided by Public Meaning Originalism, including the Fixation Thesis, the Constraint Principle, and the interpretation-construction …

The Intersection Of Judicial Interpretive Methods And Politics In Supreme Court Justices’ Due Process Opinions, Julie Castle

Capstone Showcase

The Supreme Court, a nine seat bench of unelected and lifetime tenured Justices, determines the constitutionality of dozens of cases each year. In this thesis, I research to what extent the political affiliation of the Justices affect the judicial decision making process and, ultimately, outcomes. Using pattern matching, I evaluate due process opinions from Justice Breyer, Justice O’Connor, and Justice Scalia, all of whom have established constitutional analysis methods, in order to determine if they reasonably adhere to their established method. Due to the highly political nature of due process cases, variance between the expected (adherence to the Justices’ established …

Points Of No Return: How The Ninth Circuit’S New Voluntary Undertaking Doctrine Changes Return-To-Play In Sports, Sam C. Ehrlich

University of San Francisco Law Review

No abstract provided.

Very Important Cases (“Vics”): United States V. Briggs And The Status Of Cases Involving Sexual Violence And Statutes Of Limitations, Michele A. Yankson

University of San Francisco Law Review

No abstract provided.

Ford's Underlying Controversy, Christine P. Bartholomew, Anya Bernstein

Journal Articles

Personal jurisdiction—the doctrine that determines where a plaintiff can sue—is a mess. Everyone agrees that a court can exercise personal jurisdiction over a defendant with sufficient in-state contacts related to a plaintiff’s claim. This Article reveals, however, that courts diverge radically in their understanding of what a claim is. Without stating so outright, some courts limit the claim to a cause of action or its elements, while others understand it to encompass the controversy underlying the litigation. What is worse, few have noticed that these discrepancies even exist, much less explained why. This Article does just that. We show that …

Polluters Paradise: The Dark Canon Of The United States Supreme Court In Pollution Control Law, Oliver A. Houck

American University Law Review

This Article is the last in a series of four articles exploring the Supreme Court's destructive legacy on environmental protection in the United States. This Article specifically explores the relationship between the Supreme Court and pollution through the lens of four landmark cases. Perhaps unsurprisingly, these cases together evince the Court’s tendency to distort both facts and law to reach outcomes that will benefit industrial polluters and emitters alike.

In the first case, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, the Court disregarded EPA regulations banning the discharge of toxic materials into waters to approve a pollution-heavy mining operation. …

Expanding Medicaid In The Postpartum Period, Madison P. Harrell

Law Student Publications

This Comment will discuss how the current Medicaid law is insufficient to address the issue of disappointing maternal health outcomes in the United States and how the federal government should begin to remedy the problem. First, I will shed light on the maternal health crisis in the United States, before discussing the history of pregnancy and postpartum Medicaid coverage. Then, I will outline the enactment of the Affordable Care Act, the subsequent court battle over its constitutionality, and the effects of that decision on the current landscape of pregnancy and postpartum Medicaid coverage. Finally, I will detail my proposal for …

Copyright Takes To The Streets: Protecting Graffiti Under The Visual Artists Rights Act, Michaela S. Morrissey

Law Student Publications

Artists who choose the streets as their canvas—whether to beautify neighborhoods, spark political protest, or merely mark their territory—are faced with uncertainties when it comes to questions of copyright protection for their work. Prior to Castillo v. G&M Realty L.P., the rights granted to street artists had generally been uncharted territory. However, a verdict that pitted the rights of street artists against the rights of property owners finally gave street art the credibility many felt it long deserved. In Castillo, the United States Court of Appeals for the Second Circuit recognized graffiti as a work of visual art, thus …

Shadow Dockets Lite, Hayley Stillwell

Faculty Articles

Inherent to the role of judges is the obligation to explain themselves and to create precedent—which is why the U.S. Supreme Court’s “shadow docket” has recently garnered ample criticism. Unfortunately, other courts share these deficiencies. Oklahoma Supreme Court justices often decline to vote without explanation. They also note their disagreement with some or all of an opinion, but fail to explain why. Tenth Circuit Court of Appeals judges decide whether an opinion is unpublished—and thus nonprecedential—without explanation. These practices are “shadow dockets lite” because they are more consistent with the role of judges than the Supreme Court’s shadow docket, but …

The Field Of State Civil Courts, Anna Carpenter, Alyx Mark, Colleen Shanahan, Jessica Steinberg

Faculty Articles

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

State V. Michaud, 251 A.3d 9 (Ri 2021)., Blair Robinson

Roger Williams University Law Review

No abstract provided.

2021 Rhode Island Public Laws, Madison C. Picard

Roger Williams University Law Review

No abstract provided.

Beagan V. Rhode Island Department Of Labor And Training, 253 A.3d 858 (R.I. 2021), Candace Quinn

Roger Williams University Law Review

No abstract provided.

Courts In Conversation, Thomas P. Schmidt

Faculty Scholarship

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that …

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

Faculty Works

In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …

Judges In Lawyerless Courts, Anna Carpenter, Colleen Shanahan, Jessica Steinberg, Alyx Mark

Faculty Articles

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer accommodation, information, and process simplification to people without legal representation. Until now, scholars have known little about judicial behavior in lawyerless courts, including whether and how judges are implementing role reform recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear—and the discretionary power they wield—in dispensing justice for millions of unrepresented people each year. While today’s …

The Institutional Mismatch Of State Civil Courts, Colleen Shanahan, Jessica Steinberg, Alyx Mark, Anna Carpenter

Faculty Articles

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

The Case For Pattern-Or-Practice Investigations Against District Attorney's Office, Rory Fleming

University of San Francisco Law Review

No abstract provided.

The Future Of Criminal Culpability: Posttraumatic Stress Disorder's ("Ptsd") Effect On A Defendant's Actions And State Of Mind, Amin R. Yacoub, Becky Briggs

University of San Francisco Law Review

No abstract provided.

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

Faculty Scholarship

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …

Denial Of Housing To African Americans: Post-Slavery Reflections From A Civil Rights Advocate, Elaine Gross

Touro Law Review

In this article, I draw on two decades of experience as a civil rights advocate to reflect on the denial of housing to African Americans in post-slavery America. I do so as Founder and President of the civil rights organization, ERASE Racism. I undertake historical research and share insights from my own experience to create and reflect upon six lessons related to understanding the systematic discrimination and segregation of African Americans. The lessons encompass: (1) the role of the federal government, (2) the role of municipal governments, (3) White supremacy ideation and actions, (4) legislative advocacy and legal actions, (5) …

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 …

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

Articles

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 …

Alleged Violations Of The 1955 Treaty Of Amity, Economic Relations, And Consular Rights (Iran V. U.S.) (Judgment On Preliminary Objections) (I.C.J.), Diane A. Desierto

Journal Articles

On February 3, 2021, the International Court of Justice delivered its judgment on preliminary objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America). The judgment rejected all of the United States’ preliminary objections, declared the admissibility of Iran's Application, and held that the Court has jurisdiction “on the basis of Article XXI, paragraph 2 of the Treaty of Amity, Economic Relations, and Consular Rights of 1955.”

Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans

Scholarship@WashULaw

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …

Defending The Defenders: Why Bureaucratic Independence Is A Necessary Supplement To Judicial Defense Of Democracy The Specter Of Dictatorship: Judicial Enabling Of Presidential Power, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland, as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature on democratic “backsliding” or “decline” proposes a menu of “guardrails” for shoring up democracy from gradual collapse. Broadly, these guardrails fall under two headings: I call one judicial, the other bureaucratic. The former looks to the power of judicial review, under which courts may invalidate enactments that threaten, not just the Constitution, but the very democratic …

Judicial Compliance In District Courts, Jens Frankenreiter, Daniel L. Chen

Scholarship@WashULaw

Public enforcement of law relies on the use of public agents, such as judges, to follow the law. Are judges motivated only by strategic interests and ideology, as many models posit, rather than a duty to follow the law? We use the random assignment of U.S. Federal judges setting geographically-local precedent to document the causal impact of court decisions in a hierarchical legal system. We examine lower court cases filed before and resolved after higher court decisions and find that lower courts are 29-37% points more likely to rule in the manner of the higher court. The results obtain when …

The Institutional Mismatch Of State Civil Courts, Colleen Shanahan, Jessica Steinberg, Alyx Mark, Anna E. Carpenter

Utah Law Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

Rule Of Law And International Human Rights, Vincent J. Samar

Cardozo International & Comparative Law Review

This article reviews the field of international human rights with particular attention to the way that the International Court of Justice, the International Criminal Court, the Human Rights Committee, and local domestic courts operate to resolve human rights cases. It first notes what internationally recognized human rights there are and the sources that give rise to them. It then explains how relativism enters human rights decision-making, especially at the domestic court level, in part because a common grounding for the human rights propounded was never adopted. Even at the level of the International Court of Justice, its failure to include …

Post-Grant Adjudication Of Drug Patents: Agency And/Or Court?, Arti K. Rai, Saurabh Vishnubhakat, Jorge Lemus, Erik Hovenkamp

Articles

The America Invents Act of 2011 (AIA) created a robust administrative system-the Patent Trial and Appeal Board (PTAB)-that provides a route for challenging the validity of granted patents outside of district courts. Congress determined that administrative adjudication of the validity of initial patent grants could be cheaper and more scientifically accurate than district court adjudication of such validity.

For private economic value per patent, few areas of technology can match the biopharmaceutical industry. This is particularly true for small-molecule drugs. A billion-dollar drug monopoly may be protected from competition by a relatively small number of patents. Accordingly, the social cost …