Courts Commons^™

The Past, Present, And Future Of The Restatement Of Copyright, Shyamkrishna Balganesh, Jane C. Ginsburg

Faculty Scholarship

It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the …

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence” – the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law's default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit, commercial …

All Rise: Suiting Up When Showing Up For The Practice Of Law In The Covid-19 Virtual Legal Environment, Marissa Moran

Publications and Research

The age-old advice: “No matter how you feel, get up, dress up, and show up for work and life!” may be worth remembering as more legal professionals participate in virtual environments due to the COVID-19 mandated court closures.

Virtual court hearings, mediations, and meetings are taking place. Attorneys and legal educators have adapted to changes in how we meet clients and students by utilizing Blackboard Collaborative, Zoom, Cisco WebEx, Microsoft Teams, Google Meet/Hangouts, and Skype. Do such changes in our ways of meeting and communicating-within the virtual environment-bring with them a corresponding change in expectations of what is appropriate attire …

An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo

Senior Honors Theses

This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt …

Statistical Precedent: Allocating Judicial Attention, Ryan W. Copus

Faculty Works

Suffering from a well-covered “crisis of volume,” the United States Courts of Appeals have patched together an ad hoc system of triage in an effort to provide cases with sufficient attention. For example, only some cases are assigned to central staff, analyzed by law clerks, orally argued, debated over by judges, or decided in published opinions. The courts have evaded overt disaster by increasing the number of active, senior, and visiting judges, but the additional personnel poses its own demands on attention—judges must also pay attention to one another in order to coherently develop and apply the law. With too …

Applying Maimonides’ Hilkhot Teshuvah–Laws Of Repentance – In The Criminal Law System Of The State Of Israel: An Israeli Judge’S Perspectives, Moshe Drori

Touro Law Review

No abstract provided.

The Legal Significance Of Custom In The Halakhic Jurisprudence Of Rabbi Yechiel Mikhel Epstein’S Arukh Hashulchan, Shlomo C. Pill, Michael J. Broyde

Touro Law Review

No abstract provided.

The Law Of Obscenity In Comic Books, Rachel Silverstein

Touro Law Review

No abstract provided.

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.

Comments To Hud Re: Fr-6111-P-02, Hud’S Implementation Of The Fair Housing Act’S Disparate Impact Standard, Lauren E. Willis, Olatunde C.A. Johnson, Mark Niles, Rigel Christine Oliveri

Faculty Scholarship

In key places, HUD’s 2019 proposed "Implementation of the Fair Housing Act’s Disparate Impact Standard" is at odds with express provisions of the Fair Housing Act (FHA) and goes so far as to invent new defenses to liability for housing discrimination and to place the burden of pleading and proving the nonexistence of some of these defenses on plaintiffs. In addition, the proposed rule addresses itself to matters beyond the FHA; specifically, to evidentiary and procedural issues as they may arise in cases brought under the FHA in federal or state courts. HUD provides no reasoned justification for these changes …

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility …

Covid-19 And The Law: Elections, Richard Briffault

Faculty Scholarship

With one Supreme Court decision, lower federal and state court decisions, pending litigation, and proposals around the country for major changes in how elections are conducted, COVID-19 has already had and likely will continue to have a significant impact on election law.

The discussion that follows proceeds in two parts. The first addresses the initial consequences of COVID-19 as an electoral emergency. Voters were due to go to the polls in states around the country just as the pandemic was gathering force and governors and mayors were calling on people to stay at home and avoid large gatherings – which, …

Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak

Faculty Scholarship

The COVID-19 pandemic has already wrecked greater havoc in poor neighborhoods of color, where pre-existing conditions exacerbate the disease’s spread. Crowded housing and homelessness, less access to health care and insurance, and underlying health conditions are all factors that worsen the chances of remaining healthy.Workers desperate for income continue to work without sufficient protective measures, moving in and out of these neighborhoods, putting themselves and their families at risk. During periods of greater disruption, tensions are heightened and violence more prevalent. Already some experts are warning of an onslaught of child maltreatment cases, citing earlier examples of spikes in foster …

Dispute Resolution In Pandemic Circumstances, George A. Bermann

Faculty Scholarship

The peaceful resolution of disputes is among the most important earmarks of a regime attached to the rule of law. Even in countries in which, for one reason or another, courts do not work especially well, civil peace is of paramount importance. The absence of effective institutions for the administration of justice between and among private parties would spell a high degree of social disorder.

Even in the absence of a crisis such as we are experiencing, justice systems face a number of challenges in this day and age. Does a jurisdiction have a sufficient number of persons qualified to …

Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney

Faculty Scholarship

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the provinces, the …

Notoriously Ruthless: The Idolization Of Justice Ruth Bader Ginsburg, Lucille Moran

Political Science Honors Projects

It is now a fixture of mainstream commentary in the United States that Supreme Court Justice Ruth Bader Ginsburg has become a popular idol on the political left. Yet, while Justice Ginsburg’s image and story has reached an unprecedented level of valorization and even commercialization, scholars have yet to give sustained attention to the phenomenon and to contextualize it: why has this idolization emerged within this context, and what is its impact? This paper situates her portrayal in the cultural imagination as the product of two political forces, namely partisanship and identity politics. Considering parallel scholarly discourses of reputation, celebrity, …

Equal Protection Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Judicial Education, Private Violence, And Community Action: A Case Study In Legal Participatory Action Research, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

In this Article, I present a case study of a legal PAR project involving judicial training on best practices in domestic violence cases. This judicial education project started over coffee and waffles, involved an award-winning documentary film Private Violence, and resulted in the training of more than 375 judges on best practices developed from two years of collaborative research conducted by a community action group. In 2014, I coauthored an article titled It's Critical: Legal Participatory Action Research with my colleague Emily Houh. In this piece, we introduced legal scholars to the field of PAR, including its origins, complementary relationship …

Comparisons Of The Soul: A Foucauldian Analysis Of Reasonable Doubt, Jeri Mallory

Scripps Senior Theses

The purpose of this paper is to uncover a new level of thinking regarding the discourse and debate around the standard of reasonable doubt and how it is used in our court rooms. The current argument surrounding the reasonable doubt standard has become circular and reached an impasse. By introducing the lens of social control and using the writings of notable French philosopher Michel Foucault, this paper looks at the origins and development of the reasonable doubt standard and links it with the increasing methods of social control present in punishment as well as evaluating the cultural narrative around its …

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20^th century when this concept transitioned from an economic and property rights based approach to one …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

Symposium: This Case Is Moot, Jessica Bulman-Pozen, Adam Samaha

Faculty Scholarship

Forget guns for a moment. Imagine that, once upon a time, Boca Raton had a rule that prohibited its residents from transporting their golf clubs to driving ranges outside the city. Boca’s finest golfers challenged the constitutionality of the rule in court. Now imagine that the city thought twice and repealed the rule and that Florida then passed a statute authorizing people to transport their clubs to the driving ranges of their choice. The golfers could live happily ever after.

The History, Meaning, And Use Of The Words Justice And Judge, Jason Boatright

St. Mary's Law Journal

The words justice and judge have similar meanings because they have a common ancestry. They are derived from the same Latin term, jus, which is defined in dictionaries as “right” and “law.” However, those definitions of jus are so broad that they obscure the details of what the term meant when it formed the words that eventually became justice and judge. The etymology of jus reveals the kind of right and law it signified was related to the concepts of restriction and obligation. Vestiges of this sense of jus survived in the meaning of justice and judge. …

Scotus's 2017-2018 Term: More Of The 'Passive Virtues', John M. Greabe

Law Faculty Scholarship

[exerpt] "Examine a timelier topic: the court's decision to effectively punt on the major religious freedom and partisan gerrymandering cases it was poised to decide this term. For the court's restrain in these cases may have some relation to our turbulent political times."

Parents’ Perceptions Of The Lancaster Family Treatment Drug Court, Leah Engquist, Melanie Fessinger, Katherine Hazen

UCARE: Research Products

Juvenile dependency courts deal with cases that have allegations of child abuse or neglect by a parent or guardian. Lancaster's Family Treatment Drug Court (FTDC) is a problem-solving court that deals with cases of child abuse or neglect related to substance abuse. Parents on this track receive monthly team meetings, specialized services, and corrective measures. The research question of this evaluation was: "Do parents on the Family Treatment Drug Court perceive the court process more positively than parents who are not on the track (control)?" 144 parents completed an 11 item survey following their court hearings. Overall, both FTDC and …

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Female Autonomy: An Analysis Of Privacy And Equality Doctrine For Reproductive Rights, Elizabeth Levi

Political Science Honors Projects

What is the constitutional basis for women’s equality? Recently, scholars have suggested that as the right to privacy has floundered against the political undoing of women's access to abortion, equal protection arguments have grown stronger. This thesis investigates the feminist utility and limits of the equality and privacy arguments. Taking liberal feminism and feminist legal theory as analytical lenses, I offer interpretations of gender discrimination, reproductive rights, and marriage equality case law. By this framework, I argue that while an equality argument is less inherently oppressive towards women than the privacy doctrine, equality doctrine has been constructed thus far to …

Appellate Standards Of Review Then And Now, Yves-Marie Morissette

The Journal of Appellate Practice and Process

No abstract provided.