Courts Commons^™

Judicial Accountability, Anya Bernstein

Faculty Scholarship

Judicial decisions are moving ever more authority over regulatory statutes away from agencies and to courts instead. One justification offered for this power transfer: agencies lack the accountability of courts. This Article takes up that claim, assessing the institutions’ relative capacities for accountability in their authoritative interpretations of regulatory statutes—agency regulations and court rulings. I take accountability to involve actors undertaking reasoned decisionmaking grounded in publicly recognized values and facts and justifying their decisions to others who can evaluate, influence, or override those judgments. Accountability thus involves a give and take: it gives an account of government reasoning to a …

Automating International Human Rights Adjudication, Veronika Fikfak, Laurence R. Helfer

Faculty Scholarship

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of …

6. Mark: Sources And References, Matthew Lipman

Secondary School Curriculum

This sequential bibliography matches the 1980 edition of Mark page by page. It contains both sources—works that influenced Matthew Lipman in writing the novel—and references to philosophical works he and Ann Margaret Sharp recommend to explore the novels’ philosophical themes.

Our Partisan Supreme Court And An Essential First Step Toward Reclaiming What's Been Lost, Gary Simson

Articles

Partisan decision-making by even only one Supreme Court Justice in a single case is not a trivial matter. The ill effects are greatly compounded when five or more Justices of a similar partisan bent regularly deliberate about, and decide, cases in a partisan way. At that point, we’ve got what can fairly be described as a partisan Supreme Court.

I argue in this Article that, to all of our great misfortune, a partisan Supreme Court is very much what we’ve got today. On a more hopeful note, though, I also argue that although reforming the Court to be a much …

The Siren Song Of Territoriality, Robin J. Effron, Alan M. Trammell

Scholarly Articles

Territoriality—the theory that a state’s physical borders determine its power and sovereignty—boasts a long, venerable history. For centuries, it served as the dominant political theory for myriad ideas. It defined a wide range of doctrines, including personal jurisdiction, choice of law, and prescriptive jurisdiction. By the middle of the twentieth century, though, this rigid territoriality no longer described or responded to the challenges of a society that had grown increasingly mobile and interconnected. Courts replaced inflexible territorial theories with more functional theories rooted in fairness and state regulatory interests.

In recent years, territoriality has seen a curious resurgence. The Supreme …

Channel The Panel To Improve State Supreme Court Independence, Aditya Medicherla

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

No-Hire Rulings Forget Competition, Val Ricks

American University Law Review

Two recent and noted antitrust rulings on the legality of no-hire (or “no-poach”) agreements paid lip service to preserving and promoting competition for employees but in the end failed to apply competition as a standard. Instead—and this is seen only deep in the weeds of the decisions themselves, on careful reading—judges demanded that no-hire agreements be held illegal only when they constitute abuse of market power, more or less. These decisions impliedly distinguish horizontal agreements not to compete for employees from horizontal agreements not to compete for customers, or on price. The opinions tend to “require careful economic analysis” of …

Historical Practice At The Founding, Ryan Snyder

Faculty Publications

In recent years, the Supreme Court has increasingly relied on historical practice—actions other than judicial decisions that implement the law after its adoption. That creates tension with the Court’s professed adherence to originalism—the view that a law’s meaning is fixed at the time of its adoption. To resolve this tension, the Court and many scholars have embraced theories such as “liquidation,” which argue that the Founders themselves used practice to update or change the law’s meaning over time. But until now, no one has systematically examined whether the Founders accepted those theories.

This Article provides the first comprehensive analysis of …

Automating International Human Rights Adjudication, Veronika Fikfak, Laurence R. Helfer

Michigan Journal of International Law

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of …

Join The Military And Lose Your Kids: An Exploration Of The Adverse Effects Of Military Service In Child Custody Determinations, Cortland T. B. Boechler

Journal of Legislation

Servicemembers do not lose their fundamental rights when they join the military, but in practicality, many lose their parental rights the moment they enlist. Many servicemembers lose custody because judges often interpret service and duty relocations as incongruent to the best interest of the child. Presumably, many judges lack the understanding that military service brings familial stability. That being the case, Congress should add a provision in the Servicemembers Civil Relief Act requiring judges to consider all the benefits of military service in the "best interest of the child" analysis. This solution gives military parents a fighting chance to keep …

303 Creative, Exclusive Private Enforcement, And Blue-State Revenge, Howard M. Wasserman, Charles W. “Rocky” Rhodes

Journal of Legislation

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.

Blue states and liberal scholars and advocates have …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Paradox Of Continuing Risk, W. Jonathan Cardi, Ashton Jenne, Chance Villarreal

American University Law Review

The continuing-risk rule is ubiquitously cited by Restatements, casebooks, and treatises as a core duty rule in negligence cases. Indeed, as this Article reveals, the rule has been “adopted”—in the sense that at least one court in a jurisdiction has applied the rule, and no court has rejected it—in thirty-one jurisdictions. In addition to the breadth of its adoption, the continuing-risk rule is also far-reaching: it imposes an affirmative duty to warn, protect, or rescue another from a risk if the defendant’s conduct contributed to the initial creation of that risk. Because most negligence cases involve risk-creating conduct by the …

Disrupting Public Defense: A Transitions Theory Approach, Matt Bender

Lewis & Clark Law Review

Public defense problems are well known, but a solution has been elusive. This Article analyzes public defense’s adaptive features using the Multi-Level Perspective (MLP) for the first time. The MLP is a theoretical framework that is often employed to study institutional and societal barriers to innovative ideas, like climate change responses and clean energy transitions. This Article describes the MLP’s theoretical model and uses it to examine why public defense reform consistently fails.

This Article then goes beyond the MLP framework to explore how transition management tools can be used to design and nurture new approaches to public defense. I …

Redefining The Relevant Market: Abandonment Or Return To Brown Shoe, Daniel A. Hanley

Dickinson Law Review (2017-Present)

Defining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the …

Do Bankruptcy Judges Belong In Chambers? Rethinking Inherent Civil Contempt Power In Bankruptcy, Abigail B. Willie

Faculty Articles

The bankruptcy court is the face of the federal judiciary to much of the American public. Almost as many cases are filed in bankruptcy courts every year as are filed in the federal district courts and circuit courts combined. And in each bankruptcy case, there are often dozens or more affected parties. As such, it is critical that the public has confidence in the role of the bankruptcy court and its judges. Yet, since the creation of the Bankruptcy Code in 1978, the non-Article III bankruptcy system has faced seemingly never-ending challenges to subject matter jurisdiction in the bankruptcy context …

The Shadow Defendants, Mariam A. Hinds

Faculty Scholarship

Although the overrepresentation of men, specifically Black men and men of color, in the criminal legal system is well documented, the people who support these men, especially women, have garnered less attention. Women who are proximate to system-involved men—mothers, grandmothers, sisters, daughters, girlfriends, and wives—are invisible actors in the criminal legal system who perform critical tasks and provide essential support. They appear in court to demonstrate a person’s family and community ties, use their assets as collateral for bail, deposit money in commissary accounts, maintain social ties during imprisonment through letters and visits, and bear the burden of filling the …

Survivors Behind Bars: The Criminalization Of Abuse, Assault, And Human Trafficking Victims And The Need For A Trauma-Informed Approach, Jamie Beck, Chelsea Estes

Roger Williams University Law Review

No abstract provided.

The Rise And [?] Of Anti-Administrativism, Gary Lawson

UF Law Faculty Publications

Scholars have proclaimed the administrative state to be "Under Siege" or subject to a "Never-Ending Assault." Was the election of President Donald Trump on November 5, 2024 the sixth, if not yet the seventh, day around the walls? 

This seems an appropriate time to consider the present and future of opposition to the administrative state – something that has come to be dubbed "anti-administrativism." The first task, as is usually the case when one seeks intellectual clarity, is to figure out what one is talking about. What is this "anti-administrativism"? Without knowing the answer to that seemingly simple question, one …

Life, The Universe, And The Judicial Power, Gary Lawson

UF Law Faculty Publications

In figuring out the role of the federal courts in the constitutional structure, the obvious place to start is with the Constitution. But what does the Constitution tell us about the federal courts and the judicial power vested in them?

Surprisingly little—perhaps even shockingly little—when one reflects on it. The “judicial Power” is one of the three governmental powers regarded by the founding generation as having “an unalterable foundation in nature.” The Constitution, however, does not define that power, instead taking for granted that everyone will simply know what “judicial Power” involves. History has proven that assumption to be false. …

The Elected Judge, Matthew Dale Kim

UF Law Faculty Publications

Many legal scholars and jurists oppose electing judges. Their core criticism against judicial elections is that elected judges are incentivized to avoid issuing unpopular, countermajoritarian decisions in constitutional law cases and thus fail to safeguard minority rights against abuses of the majority. Scholars have described this problem as the elected judges’ “majoritarian difficulty.” Numerous empirical studies suggest that elected judges do, in fact, fear electoral backlash and allow majoritarian demands to affect their decision-making.

This Article asks whether such fears are warranted. Elected judges should not allow majoritarian pressures to affect their decision-making unless the American public is aware of …

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.

From Downes To Dobbs: Why Stare Decisis Should Not Stop The Court From Overturning The Territorial Incorporation Doctrine, Gino Piccinini

Indiana Journal of Law and Social Equality

No abstract provided.

Do Federal Circuit Courts Of Appeal Provide Adequate Assistance To Self-Represented Litigants? A Review Of The Circuits’ Websites Resources, Jona Goldschmidt

Indiana Journal of Law and Social Equality

No abstract provided.

May Federal Courts Answer Questions When Not Deciding Cases?, Benjamin B. Johnson

UF Law Faculty Publications

Conventional wisdom says that Article III’s case-or-controversy requirement prevents federal courts from answering legal questions when they are not deciding cases. This is only partially correct. This Article shows conditions under which a federal court may answer questions even when not deciding a case. To do so, it traces the appellate power back to its origins in English common law courts and through the early American judiciary. For centuries, common law judges have answered questions sent to them by lower courts when doing so would help those lower courts to decide pending cases. In England, the “case stated” procedure facilitated …

Guilty Pleas Matter: Waivers And The Forgotten Solemnity Of A Sacred Process, Julian A. Cook Iii

UF Law Faculty Publications

Approximately 98% of federal cases are resolved by means of a guilty plea. Thus, it is the guilty plea hearing, not the jury trial, that is the heart and lungs of our criminal justice system. Given the frequency of its use, coupled with the deeply impactful personal consequences that necessarily accompany a conviction, district courts play a critical evaluative and safeguarding function. As famously stated by the Supreme Court in Brady v. United States, the decision to plead guilty “is a grave and solemn act to be accepted only with care and discernment . . . .”

Guilty Pleas …

"Then What?": A Framework For Life Without Chevron, Gary Lawson

UF Law Faculty Publications

The Supreme Court overruled Chevron in Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. Dep’t of Commerce. What happens next? What should happen next?

This essay does not try to answer either of those important questions. Rather, it seeks to provide a framework to promote careful thinking about those questions. Specifically, any predictive or prescriptive account of the law governing judicial review of federal agency legal interpretations needs to think carefully about four issues.

First, what does “deference” actually mean in any given context? “Deference” can mean anything from polite respect to absolute obeisance, and everything in …

The Impact Of Divorce Proceedings On Victims Of Domestic Violence, Quinn G. Di Ienno

Honors Undergraduate Theses

Divorce often signifies the end of conflict in relationships that individuals no longer wish to continue. However, the impact of divorce on victims of intimate partner violence (IPV) is a topic that remains underexplored. This research investigates the extent to which individuals navigating divorce proceedings are victims of IPV and aims to illuminate their experiences within the legal system. The study delves into various forms of abuse, including physical, emotional, and financial, while also addressing the challenges victims face in seeking assistance. Employing a mixed-methods research design, this study comprises a comprehensive literature review and an online survey targeting those …