Courts Commons^™

The American Tradition Of Self-Made Arms, Joseph G.S. Greenlee

St. Mary's Law Journal

No abstract provided.

Inside Out, Upside Down: Circuit Court Confusion Over Character Copyrightability, Caitlin E. Oh

Emory Law Journal

Enormous amounts of new content are posted on social media every day. Ordinarily, if a work is original and created by the author, the work is automatically protected under copyright without the need for registration. However, in recent years, copyright protection has become difficult to obtain for one type of expression: fictional characters.

Today, characters hold immense cultural significance. For some, characters provide an escape from reality, entertainment, and, in some cases, a blueprint to which one can aspire. For entertainment studios, characters hold immense economic value. If a character is popular—holding cultural significance—a studio might create a prequel or …

Virtually Inaccessible: Resolving Ada Title Iii Standing In Click-And-Mortar Cases, Saxon S. Kagume

Emory Law Journal

As the electronic age has taken hold of the global community, and digital devices have become the mainstay of human interaction, new accessibility barriers have emerged for people with disabilities. Although most courts now conclude virtual inaccessibility is an injury cognizable under Title III of the Americans with Disabilities Act, great ambiguity surrounds the injury-in-fact requirement of Article III standing in online accessibility cases. Despite pleading for elucidation and clarifying principles, federal district courts have been left to navigate the uncharted territory of the digital injury-in-fact inquiry with exiguous guidance from higher courts. The resultant confusion in the federal courts …

The City Suit, Zachary D. Clopton, Nadav Shoked

Emory Law Journal

This Article addresses the role of local governments in the most American of activities: the lawsuit. During the last few decades, city litigation has grown more proactive, diverse, and prominent. Cities now frequently file lawsuits respecting the most notable issues of the day. Each of these suits involves specific policy concerns peculiar to its subject matter, but as a group—as a legal phenomenon—they all raise common, and disputed, doctrinal questions pertaining to standing, local preemption, res judicata, state immunity, and more.

When tackling these diverse doctrinal issues—sounding in both civil procedure and local government law—courts and scholars have failed to …

Theorizing Corroboration, Maggie Wittlin

Faculty Scholarship

A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.

This Article argues that there is a key problem with using corroboration to evaluate …

Bottom-Rung Appeals, Merritt E. Mcalister

Fordham Law Review

There are “haves” and “have-nots” in the federal appellate courts, and the “haves” get more attention. For decades, the courts have used a triage regime under which they distribute judicial attention selectively: some appeals receive a lot of judicial attention, and some appeals receive barely any. What this Article reveals is that this triage system produces demonstrably unequal results, depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce significant disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

The Federal Circuit: A Microcosm Of Changes In The Legal Landscape, Jimmie V. Reyna

American University Law Review

On April 2, 1982, Congress established the United States Court of Appeals for the Federal Circuit through the Federal Courts Improvement Act of 1982, which merged the United States Court of Customs and Patent Appeals with the appellate division of the United States Court of Claims. The Federal Circuit has just surpassed forty years of appellate jurisprudence.

The Purcell Principle And The Antiblackness Of Constitutional Fundamentalism, Brittany Carter

American University Law Review

In Milligan v. Merrill, a district court in Alabama found that the state legislature designed Alabama’s new congressional district map in a way that diminished Black political power, and ordered the legislature to redraw its map to remedy the violation. Two weeks later, the Supreme Court stayed the district court’s order, allowing Alabama’s congressional elections to proceed under the discriminatory maps. The only stated rationale, offered by Justices Kavanaugh and Alito in a concurring opinion, was the so-called Purcell principle – the notion that federal courts should not enjoin a state’s election laws in the period close to an election. …

The Judicial Activism Of Justice Anthony Kennedy, Carlos A. Ball

American University Law Review

Few recent Supreme Court justices have had a greater impact on constitutional law than Anthony Kennedy. Although commentators have explored the substance of Justice Kennedy’s jurisprudence in some detail, legal scholars have not systematically analyzed the extent of his judicial activism. This Article uses the term “judicial activism” descriptively rather than normatively to help account for a judge’s willingness to strike down federal, state, and local laws on constitutional grounds. It finds that, under a descriptive definition, when compared to the justices with whom he served, Justice Kennedy was a singularly judicial activist judge.

This conclusion rests on three findings. …

When Amicus Curiae Briefs Are Inimicus Curiae Briefs: Amicus Curiae Briefs And The Bypassing Of Admissibility Standards, David Dematteo, Kellie Wiltsie

American University Law Review

Amicus curiae briefs are being submitted at historically high levels by a range of individuals and entities, and there is compelling evidence that these briefs are highly influential in judicial decision-making, including in the Supreme Court of the United States. Although amicus curiae briefs have been an ingrained aspect of the U.S. legal system for hundred-plus years, various legal scholars, researchers, commentators, and judges, including Supreme Court Justices, have raised concerns about their use, including that amicus curiae briefs contain redundant information and often function as advocacy tools. This Article addresses an aspect of amicus curiae briefs that has received …

How Biden Can Continue Making The Federal Courts Better, Carl Tobias

Law Faculty Publications

From 2017 until 2020, former President Donald Trump and the Republican Senate majority nominated and confirmed record-breaking numbers of appellate court judges. This emphasis undermined ethnic, gender, sexual orientation, and experiential diversity as well as ideological balance on these courts and neglected to address persistent district court and emergency vacancies. Moreover, to achieve these historic confirmation levels, the GOP Senate majority eviscerated or altered certain rules and customs of regular order, which included the creation of a circuit-level exception to the blue slip process. President Joe Biden, in turn, has pledged to rectify the damage to the courts and the …

Confirm Julie Rikelman For The First Circuit, Carl Tobias

Law Faculty Publications

Now that the United States Senate has reconvened after pauses for holidays, the upper chamber must expeditiously appoint designee Julie Rikelman to the U.S. Court of Appeals for the First Circuit, which is the smallest, albeit critical, appellate court. The nominee, whom President Joe Biden tapped during late July 2022, would supply remarkable experiential, gender, and ideological diversity gleaned from pursuing much cutting-edge reproductive freedom litigation, which included arguing Dobbs before the Supreme Court that overturned Roe v. Wade. The nominee has definitely excelled in law’s highest echelon over twenty-plus years, most recently as the U.S. Litigation Director in the …

Appoint Judge Ana De Alba To The Ninth Circuit, Carl Tobias

Law Faculty Publications

The United States Senate must rapidly appoint Eastern District of California Judge Ana de Alba to the Ninth Circuit. This appellate tribunal is a preeminent regional circuit, which faces substantial appeals, has the largest complement of jurists, and clearly includes a massive geographic expanse. The nominee, whom President Joe Biden designated in spring 2023, would offer remarkable gender, experiential, ideological, and ethnic diversity realized primarily from serving productively with the California federal district, and state trial, courts after rigorously litigating for one decade in a highly regarded private law firm. For over fifteen years, she deftly excelled in law’s upper …

Functional Federal Equity, Riley T. Keenan

Law Faculty Publications

Throughout history, English and American courts have adapted traditional equitable doctrines and remedies to new social, economic, and technological circumstances. This traditional approach to equity traces to England’s High Court of Chancery in the seventeenth century, and federal courts in the United States have applied it since the founding, fashioning new forms of equitable relief to break labor strikes, desegregate schools, redraw electoral maps, and prevent the enforcement of unconstitutional laws.

Yet despite its pedigree, the Supreme Court has abandoned this traditional approach to equity over the past two decades. Today, the Court limits federal courts to the doctrines and …

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliot Hollman

Law Student Publications

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

Duped By Dope: The Sackler Family’S Attempt To Escape Opioid Liability And The Need To Close The Non-Debtor Release Loophole, Bryson T. Strachan

Law Student Publications

The opioid epidemic continues to rage on in the United States, ravaging its rural populations. One of its main causes? OxyContin. Purdue Pharma (“Purdue”), the maker of OxyContin, aggressively marketed opioids to the American public while racking up a fortune of over $13 billion dollars for its owners,3 the Sackler family. As a result, roughly 3,000 lawsuits were filed against Purdue and members of the Sackler family. Generally, the lawsuits alleged that Purdue and members of the Sackler family knew OxyContin was highly addictive yet aggressively marketed high dosages of the drug and misrepresented the drug as nonaddictive and without …

Problems With Authority, Amy J. Griffin

Georgetown Law Faculty Publications and Other Works

Judicial decisionmaking rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Despite the central role of such rules in judicial decisionmaking, we lack a good account of how they are created, revised, and enforced. There is something paradoxical and troubling about the notion that the rules of the game are determined by the players as they play the game according to those rules. Because weight-of-authority rules are largely informal and almost entirely unwritten, we don’t even …

Stay In Your Lane: Rooker-Feldman Prohibits Lower Federal Court Review Of Non- Final State Court Judgments, Matthew Bertelli

Roger Williams University Law Review

No abstract provided.

A Fresh Start: Sealing Eviction Records In Rhode Island, Katie Gradowski

Roger Williams University Law Review

No abstract provided.

Martins V. Bridgestone Americas Tire Operations, 266 A.3d 753 (R.I. 2022)., Keith Lefevre

Roger Williams University Law Review

No abstract provided.

Educating Judges & Advancing Inclusion: The Evolution Of Gendered Language In U.S. Courts, Sarah Mcconnell

Roger Williams University Law Review

No abstract provided.

In Re. J.T., 252 A.3d 1276 (R.I. 2021)., Pia Piscitelli

Roger Williams University Law Review

No abstract provided.

“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, And The Fourth Amendment, Matthew L. Brock

Law Student Publications

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array …

Mistakes With The Mistake Defense In Texas Criminal Law, Charles Bubany

St. Mary's Law Journal

No abstract provided.

Necessary Necessity: Courts’ Historical Assessment Of The Condition Precedent For Martial Law, Eric Merriam

Oklahoma Law Review

No abstract provided.

A Child’S Constitutional Right To Family Integrity And Counsel In Dependency Proceedings, Rachel Kennedy

Emory Law Journal

Since the child welfare system’s inception, abuse and neglect laws have conflated poverty-related neglect with active parental violence and willful neglect. The ensuing state surveillance has disproportionately harmed poor children and children of color. Pursuant to the state’s expansive parens patriae authority, countless families are investigated, and thousands of children are separated from their caretakers each year—only to be returned within days or weeks after a finding that the reasons for removal were unsubstantiated. Other children risk drifting in foster care limbo until they experience the termination of parental rights—an adjudication so severe that some courts call it the “civil …

How Florida’S Courts Should Evaluate The Admissibility Of Field Sobriety Testing And Blood Thc Levels Evidence In Marijuana Impaired Driving Prosecutions, Christopher Bomhoff

FIU Law Review

Field sobriety and blood alcohol concentration tests are proven reliable techniques to determine whether a person us under the influence of alcohol. No such technique has been developed to reliably determine whether a person is under the influence of marijuana. However, despite a lack of scientific consensus regarding the reliability of field sobriety and blood toxicology tests to determine marijuana impairment, these methods are routinely used as evidence of guilt in marijuana impaired driving prosecutions. Twenty-four states have legalized the recreational use of marijuana, and Florida appears to be set to join them in the near future. As a result …

Judges For Sale: The Effect Of Campaign Contributions On State Criminal Courts, Arturo Romero Yáñez, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Do campaign contributions impact democratic processes? Using donation data from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants.

We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as those based on professional, ideological, political, or personal ties. …

Good Representatives, Bad Objectors, And Restitution In Class Settlements, Jay Tidmarsh, Tladi Marumo

Journal Articles

his Article uses two recent decisions -one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors - to explore deeper connections between class­action settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative's efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the …