Courts Commons^™

The Role Of Storytelling In Bisexual Jurisprudence, Eliot T. Tracz

Pace Law Review

This essay examines the unique challenges faced by bisexual individuals in the legal system and explores how storytelling can serve as an effective tool to combat bisexual erasure and stereotyping in jurisprudence. Despite comprising the largest demographic within the LGBTQ community, bisexual individuals are significantly underrepresented in legal discourse and case law. This essay identifies three primary challenges affecting bisexual legal recognition: erasure (the denial of bisexuality as an orientation), stereotyping (harmful assumptions about bisexual individuals), and interest divergence (conflicting priorities with both heterosexual and homosexual communities). Through detailed case analysis, this essay will demonstrate how these challenges have resulted …

National Origin Bias And U.S. Public Opinion On Supreme Court Nominees: Evidence From A Conjoint Experiment, Christopher P. Dinkel, Andrew Ifedapo Thompson, Marc C. Mcallister

Pace Law Review

As the ultimate arbiter of the interpretation of federal law and the U.S. Constitution, the U.S. Supreme Court has a significant impact on businesses and individuals across an increasingly diverse country. Although the vast majority of the Justices who have served on the Court have been white males, recent Presidents have appointed nominees who have brought greater racial and gender diversity to the Court. Despite these efforts, however, not a single U.S. Supreme Court Justice in the past six decades has been born abroad, even though Americans who were born outside the United States constitute nearly a tenth of the …

A Mistake For The Lake: Why Ohio Should Rethink Its Ban On Rights Of Nature For Lake Erie, Shelby Strohl

Cleveland State Law Review

“Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” - Professor Christopher Stone. The purpose of the rights of nature movement is to recognize that ecosystems and natural entities have the right to exist and thrive. Rights of nature give the natural entities legal protections against pollution and other harms. This Note recommends that the Ohio legislature reconsider its stance on prohibiting rights of nature under Ohio Revised Code Section 2305.011. This recommendation stems from the groundbreaking Lake Erie Bill of Rights, which granted rights of nature to Lake Erie in …

Second-Guessing The Jury: The Federal Circuit's Flawed Take On Enhanced Damages In Halo V. Pulse, Dennis D. Crouch

Faculty Publications

This article critically examines the Federal Circuit's February 2025 decision in Halo v. Pulse, focusing on the court's approach to enhanced damages in patent infringement cases. The analysis identifies a fundamental tension between jury findings of willful infringement under a clear and convincing evidence standard and the district court's subsequent discretion to deny enhanced damages by essentially reconsidering the same evidence. The article argues that the Federal Circuit's affirmation of this approach undermines the Supreme Court's 2016 Halo decision, which sought to make enhanced damages more accessible in cases of egregious misconduct. By creating an artificial distinction between "willful infringement" …

Smart Resolutions: Exploring The Role Of Artificial Intelligence In Alternative Dispute Resolution, Nadia Ahmad

Cleveland State Law Review

Artificial intelligence (AI) has had a significant impact on most industries, including the legal landscape. Effective AI incorporation has removed barriers to access to justice, resolving issues such as backlogged court systems and inadequate resources for pursuing claims. Similarly, the expediency and cost-effectiveness associated with alternative dispute resolution (ADR) have established ADR as a mainstay in most countries to enhance legal accessibility. It was inevitable that AI and ADR were integrated to efficiently deliver justice.

Most automated ADR systems implemented thus far have been with human intervention. As machine learning develops, there are efforts to completely automate ADR, and this …

Amicus Briefs, Retired Senior Military Officers, And The Judiciary: A Unique "Friend Of The Court," In The Constitutional Construct Of Civil And Military Relations, Joshua E. Kastenberg

Cleveland State Law Review

Military organizations, and particular, small groups of retired flag officers (generals and admirals) have increasingly filed amicus briefs to the United States Supreme Court and the federal courts of appeal. Most prominent among these are the “Becton Brief,” a group of largely Vietnam Veterans who were concerned that the Court would end any ability of the higher education system to consider race in admissions. Named after Julius Becton, a retired Army general, Vietnam Veteran, and former FEMA director, the brief’s signatories included General Norman Schwarzkopf and Admiral William Crowe, the former chairman of the joint chiefs of staff. The brief …

The Original Understanding Of The Western State Constitutions' Protections From Searches, Seizures, And Self-Incrimination, Greg Sergienko

UMKC Law Review

No abstract provided.

Camera-Shy Courtrooms: Balancing Extraordinary Transparency And The Appearance Of Justice, Caroline Olsen

William & Mary Bill of Rights Journal

High-profile trials alert us to the dissonance between transparency and accountability in the federal judiciary. This Note will explore this tension and argue that when policymakers respond to calls for “extraordinary transparency,” transparency should be subordinate to fairness. Part I will discuss the principles underlying public adjudication and how, through various constitutional challenges, the limits of public access have changed over time. Analyzing modern high-profile trials, Part II will demonstrate how those very principles are inadequately protected in jurisdictions that allow unrestrained public access to the courtroom. Part III will describe how transparency, when conflated with accountability, threatens procedural due …

Fee-Shifting Shortcuts, Maureen Carroll

Articles

Federal fee-shifting statutes, which allow certain prevailing plaintiffs to recover a reasonable attorney’s fee from the defendant, are critically important to civil rights enforcement. When it comes to the interpretation of these statutes, however, a wide gap separates the doctrine articulated by the Supreme Court and the decisions issued by lower courts. According to the Supreme Court, the calculation of a feeshifting award requires a highly contextualized inquiry, specific to the plaintiff’s attorneys and claims; in the lower courts, by contrast, judges take a set of welltrodden shortcuts that flatten many of the differences the case law makes relevant.

This …

Interveners’ Ideas As Influence: Revisiting Ktunaxa Nation, Danielle Mcnabb, Minh Do

Dalhousie Law Journal

With the patriation of the Constitution in 1982, including the addition of the Canadian Charter of Rights and Freedoms and provisions delineating the rights of Indigenous peoples, the Supreme Court of Canada inherited profound political powers. The number of non-governmental actors “intervening” in cases sharply increased. Judicial review produced a democratizing effect because a new “window of opportunity” for marginalized groups to enact social change through the Court was opened. However, several scholars suggest that in practice, the Constitution has led to “very few gains” for Indigenous peoples. To better understand the nature of Indigenous intervener participation, and to assess …

Words Of Wisdom By The Honorable William E. Smith Lecture/Cle Program And Reception February 19, 2025, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

A Distinctive Court: A Glimpse Into The History And Significance Of The D.C. Circuit, Hon. J. Michelle Childs, James J. Brudney

Jurist in Residence Lectures

In her lecture, Judge J. Michelle Childs discusses the unique nature of the docket of the United States Court of Appeals for the District of Columbia Circuit, highlighting its collegiality as well as its role in addressing issues of national significance, particularly in administrative cases and those involving the scope of governmental power.

Criminalizing Domestic Violence In Egypt: Legal Gaps, Risk Consequences, And The Need For Reform, Ahmed Hussein

Theses and Dissertations

This thesis advocates for the implementation of domestic violence legislation in Egypt as a crucial legal and judicial reform necessary to prevent such violence and challenge societal norms that normalize it. It first examines the evolution of domestic violence legislation in line with international human rights standards, highlighting its applications worldwide and the role of states to interfere in an aim to combat such violence. The arguments for and against explicit criminalization are analyzed, emphasizing how legal frameworks can alter social behaviors that normalize violence. Following this, the thesis will focus on Egypt's legal framework addressing domestic violence, showing how …

Uptier Debt Exchange Transactions: A Winner-Take-All Battle In The Leveraged Loan Market, Angela Chang

Brooklyn Law Review

This Note explores the legal implications of uptier debt exchange transactions (UDETs) in the syndicated loan market. These transactions are restructuring strategies that allow distressed companies to exchange existing debt for “superpriority” debt, often to the detriment of excluded creditors. The Bankruptcy Code aims to balance debtor relief with creditor rights, but, as this Note demonstrates, UDETs exploit ambiguities in credit agreements to shift priorities in favor of certain lenders. This Note examines the pivotal case of In re Serta Simmons Bedding, LLC, a decision which highlighted the need for creditors to reassess whether the flexibility of their credit agreements …

What Really Is “Objectionable Conduct” In New York Co-Ops? Navigating A Board Deferential Standard Of Review Post-Pullman, Jenna Tammaro

Brooklyn Law Review

Home is where the heart is, and in the United States, home ownership is an integral part of the American dream. A place to call home offers emotional safety as well as financial security. Property ownership can even mark the start of generational wealth. Since a home is something that can mean so much to so many, the loss of one’s home is an unimaginable fear. The risk becomes even greater when the odds are stacked against homeowners, particularly for cooperative corporation (co-op) shareholders in New York. Co-op proprietary leases exploit the risk of loss for these owners. Most proprietary …

Performative Actions And Profits: A New Test For Delaware Derivative Oversight Claims, Joshua Dana

Brooklyn Law Review

One of the most important aspects of Delaware corporate law is the duty of oversight, which requires corporate directors and officers to establish and maintain reasonable oversight systems at their companies. In determining whether a director or officer has breached their duty of oversight, courts apply the bad-faith standard. This Note contends that the bad-faith standard is an ineffective way to hold corporate directors and officers accountable for their lack of oversight because under the bad-faith standard, courts are unable to distinguish nonmeaningful performative action that is merely intended to create the illusion of good-faith oversight from true good-faith action. …

Incarcerated Individuals' Lives Do Not Matter: A Fourteenth Amendment Procedural Due Process Problem, Marshall Farber

Et Cetera

This Note examines the Seventh Circuit’s decision in Love v. Vanihel, in which Tony Love lost 5,700 days of good-time credit following the Indiana Department of Corrections’ issuance of Executive Directive #17-09 (“ED 17-09”). Prior to this directive, the state’s disciplinary code capped good-time credit loss at one year per offense, but ED 17-09 imposed significantly harsher sanctions, stripping Love of over 15 years of accrued credit after a single disciplinary infraction. The Seventh Circuit affirmed the district court’s decision, holding that Love had procedurally defaulted and forfeited his due process claims. This Note argues that the Seventh Circuit’s …

Million-Dollar Mysteries: Recent Complex Patent Cases Lost To Rule 36, Dennis D. Crouch

Faculty Publications

This article examines the Federal Circuit's continued use of Rule 36 summary affirmances to dispose of complex patent cases without written opinions. Through analysis of eight recent Rule 36 cases decided in early 2025, the author demonstrates that sophisticated legal issues involving millions of dollars are being summarily affirmed despite presenting novel and important questions of patent law. The cases discussed involve design patent evidentiary standards, jury trial rights for hybrid legal-equitable claims, analogous art determinations, claim construction, written description requirements, and PTAB procedural issues. The author argues that while the court may be avoiding difficult cases with complex factual …

Delivery Drivers Deserve The Whole Package: Package Delivery Drivers And The Transportation Worker Exemption Of The Federal Arbitration Act, Evan Kelly

Catholic University Law Review

Package delivery is a ubiquitous part of modern American life, and package delivery driving is a fast-growing occupation in the United States. These drivers work long hours in a fast-paced, highly regimented environment, and because of arbitration agreements they are made to sign, they often cannot go to court to settle disputes with their employers. Under the Federal Arbitration Act (FAA), these arbitration agreements are generally “valid, irrevocable, and enforceable.” However, the FAA includes an exemption (known as the “Transportation Worker exemption”) that excludes arbitration agreements in “contracts of employment for seamen, railroad employees, or any other class of worker …

Pleading With Particularity: Decoding When Computer Fraud And Abuse Act Claims Must Comply With Rule 9(B), Brooke R. Newman

Pepperdine Law Review

The primary tool for litigating cybercrimes is the Computer Fraud and Abuse Act (CFAA), which Congress enacted in 1984 following increased computer misuse. Since its debut, the CFAA has undergone a series of amendments. The most noteworthy of which for civil litigators came in 1994 when Congress enacted a civil penalty for cybercrimes. Part of this penalty includes 18 U.S.C. § 1030(a)(4), which prohibits fraudulent conduct in connection with computer usage. In recent years, litigators have weaponized § 1030(a)(4) to challenge a variety of conduct, most of which has nothing to do with cybercrimes. These filings have split district courts …

Is Snap Removal Unconstitutional?, Ryan H. Nelson

Pepperdine Law Review

In snap removal, an individual removes a civil action to federal district court from the courts of a state where one or more putative defendants are a citizen before any such putative defendant has been served with process. By removing before any forum-state defendants are served, the removal arguably eludes the forum-defendant rule, which prohibits removal based solely on the diversity or alienage jurisdiction statute if “any of the parties in interest properly . . . served as defendants is a citizen of the State in which such action is brought.” For years, federal judges and legal academics have disputed …

Brief For Religious Liberty Scholars In Support Of Petitioners, Mark S. Storslee, Kevin T. Baine, Richard S. Cleary Jr., Ian M. Swenson, Joshua A. Hanley, Richard W. Garnett

Court Briefs

No. 24-154
Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission

On Petition for a Writ of Certiorari to the Supreme Court of the State of Wisconsin

From the Summary of Argument

The First Amendment’s Religion Clauses prohibit the government from answering religious questions or discriminating among religions. At a minimum, that means courts may not dole out protection to some religious groups but not others based on favored or supposedly ‘typical’ religious activities. When administering statutory exemptions whose beneficiaries are religious organizations, courts may not gainsay organizations’ sincere religious beliefs to impose their own view …

The Effect Of Voir Dire Variations On Juror Disclosures, Joshua A. Haby

Dissertations and Doctoral Documents, University of Nebraska-Lincoln, 2023–

Voir dire, sometimes referred to as jury selection, is the legal process the court uses to pursue an impartial jury. The presiding judge controls many aspects of how voir dire proceeds. In deciding voir dire variations, the judge presumably engages in a calculus weighing factors like the goal of voir dire, time, and specific trial needs to determine appropriate procedures. Certain procedures are considered expansive and others limited. Where expansive procedures provide more information from jurors, they may take longer; limited procedures may be more expeditious but limit access to information from jurors (Hans and Jehle, 2003; Mize, Hannaford-Agor, and …

The Longer-Term Impact Of Civil Justice Reform: A 10-Year Retrospective On Utah Civil Discovery Reform, Paula Hannaford-Agor, Miriam Hamilton

Faculty Publications

In 2021, the National Center for State Courts (NCSC) obtained grant funding from State Justice Institute to undertake a retrospective study of the Utah civil justice reforms. The new study replicated some of the analyses from the 2015 study to compare case characteristics and outcomes against the post-implementation data extracted for the 2015 study. In addition to examining the impact on case characteristics and outcomes, an objective of the new study was to examine the impact of the Rule 26 revisions on practitioner behavior, which is less easily captured in case filings. To do so, NCSC convened a project advisory …

Custom’S Pervasive Role In Law And The Boundaries Of Positivism, James Paul George

Faculty Scholarship

Custom is law’s foundation, modulator, and occasional antithesis. This Article explores that relationship, starting with varying insights from some of the few legal philosophers who have examined the custom/law dynamic. The heart of this Article provides examples showing custom’s many influences on the law, set in five functional areas: origin, application, interstitial, rule-source, and oppositional. Although the custom/law interplay spans human behavior, these examples come from law practice where custom is exposed. Many are routine, some are significant, and all show our reliance on behaviors and norms that are not positive law. The conclusion addresses but does not resolve some …

This Is An Intervention: The Role Of Federal Courts In Suppressing Non-Compete Agreements, Anya Y. Karaman

William & Mary Law Review

Part I of this Note will provide background information on noncompete agreements, focusing primarily on those executed in conjunction with employment. Part I will also provide background on the FTC’s rule and the preliminary injunction analysis. Part II will explore how different jurisdictions treat the public interest factor when analyzing whether to enforce a non-compete. Part III will examine how the FTC’s rule has already impacted the public interest analysis in court. Finally, Part IV will address potential challenges to this proposal and argue why federal courts—as opposed to state legislatures, for example—are in the best position to protect workers …

The Impact Of Diversity On The Bench For Employment Discrimination Cases, Therea M. Beiner

University of Richmond Law Review

Political scientists, law professors, and legal practitioners have long been interested in what diversity on the United States federal court bench might mean for justice as well as the appearance of justice. For much of the history of the federal courts, there were so few female, racial, and ethnic minority judges that little could be said about any differences in approaches these “nontraditional” judges might take in their decision-making processes. The number of nontraditional judges increased slowly during the Carter Ad- ministration, which was the first to make diversifying the federal bench a priority. Each succeeding Democratic president increased this …

Noticing Injunctions, Mae C. Quinn

University of Richmond Law Review

Injunctions abound. And yet, they are largely invisible. Beyond the parties to a case in which an injunction is ordered, few outsiders may be aware they exist. And even when an order for injunctive re- lief makes the news, its exact terms may not be widely known. But like legislative enactments and publicly reported appellate decisions, injunctions can carry significant legal implications. Indeed, depending on the nature of the relief declared, such equitable orders can last in perpetuity. And as a practical matter, third parties outside of the litigation may be directly or indirectly impacted by their terms, which prohibit …

Discovery, Injury, And Diligence: Reconciling Subjective And Objective Copyright Limitations Standards Post-Warner Chappell, Dennis D. Crouch, Timothy Knight

Faculty Publications

This Article examines the evolving interpretation of the Copyright Act's statute of limitations in light of RADesign, Inc. v. Michael Grecco Productions, Inc., a case pending before the Supreme Court. Following the Court's decision in Warner Chappell Music, Inc. v. Nealy (2024), which left open the question of whether copyright claims can be based on infringement occurring more than three years prior, the circuit courts remain split on whether the three-year statute of limitations runs from the time of infringement (the "injury rule") or from when the copyright holder discovers the infringement (the "discovery rule"). Through analysis of the Grecco …

Peeping Town: Drone Surveillance And The Exclusionary Rule In Long Lake Township V. Maxon, Stuart Massa

Northwestern University Law Review

For years, legal commentators have pondered the effect of the Fourth Amendment on drones, but purely as an academic exercise. No court had ever considered drone surveillance under the Fourth Amendment––until now. In Long Lake Township v. Maxon, a northern Michigan township flew a drone over a local resident’s home to gather photographic evidence of an alleged zoning violation. Relying on that evidence, the township sued to enforce its zoning ordinance. The resident moved to suppress the evidence, arguing that the drone’s warrantless surveillance violated the Fourth Amendment. The case made it all the way up to the Michigan …