Courts Commons^™

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.

Supreme Court Of The United States, October Term 2020 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

In General Public Use: An Unnecessary Test In Fourth Amendment Searches Using Advanced Sensing Technology, Mike Petridis

Touro Law Review

No abstract provided.

The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

How would a court resolve a broker-dealer's action to enforce its class action waiver, which would require the court to disregard FINRA Rule 13204? The Supreme Court has identified one exception to the FAA's mandate: if a “contrary congressional command” displaces the FAA. Thus far, the Court has not had occasion to examine whether a class action waiver in a broker-dealer's employment agreement with an employee is enforceable under this exception. While the Court seems very supportive of these waivers, the securities industry is different. Securities arbitration is heavily regulated, and pronouncements by the SEC--when exercising power expressly delegated to …

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.

The Supreme Court And The 117th Congress, Andrew K. Jennings, Athul K. Acharya

Faculty Articles

If the late Justice Ruth Bader Ginsburg’s successor is confirmed before the 2020 presidential election or in the post-election lame-duck period, and if Democrats come to have unified control of government on January 20, 2021, how can they respond legislatively to the Court’s new 6-3 conservative ideological balance? This Essay frames a hypothetical 117th Congress’s options, discusses its four simplest legislative responses—expand the Court, limit its certiorari discretion, restrict its jurisdiction, or reroute its jurisdiction—and offers model statutory language for enacting those responses.

Ethical Considerations For Attorneys Researching Jurors On The Internet, Anthony M. Lapinta

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Future Of Pretrial Detention In A Criminal System Looking For Justice, Gabrielle Costa

Journal of Race, Gender, and Ethnicity

No abstract provided.

Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza

Journal of Race, Gender, and Ethnicity

No abstract provided.

The “Foul” Protection For A Photographer’S Original And Creative Choices In A Photograph: Exploring The Implications Of Rentmeester V. Nike, Inc. On Creativity In Photography, Olivia Lattanza

Touro Law Review

No abstract provided.

The Defender General, Daniel Epps, William Ortman

Scholarship@WashULaw

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate …

Public Rights, Private Privileges, And Article Iii, John Harrison

Georgia Law Review

PUBLIC RIGHTS, PRIVATE PRIVILEGES, AND ARTICLE III John Harrison* This Article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The public rights rationale originated in the nineteenth century and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. The U.S. Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. In light of the Court’s interest in the nineteenth century system, this Article explores that system in depth and seeks to identify the ways …

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Supreme Court Institute Annual Report, 2018-2019, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2018 – corresponding to the 2018-2019 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 99% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students. The varied affiliations of advocates mooted this Term reflect SCI’s firm commitment to provide assistance to advocates without regard to the party represented or the position advanced.

A list of all SCI moot courts held in OT 2018 – …

Judicial Review And Constitutional Interpretation In Afghanistan: A Case Of Inconsistency, Shoaib Timory

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Mixed Signals: What Can We Expect From The Supreme Court In This Post-Ada Amendments Act Era?, Nicole Buonocore Porter

Touro Law Review

No abstract provided.

Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry

Indiana Law Journal

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature—which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.” The result is a disorienting kind of biography by committee, one which produces not one all-encompassing …

Judicial Choice Among Cases For Certiorari, Tonja Jacobi, Álvaro Bustos

Faculty Articles

How does the Supreme Court choose among cases to grant cert? In a model with a strategic Supreme Court, a continuum of rule-following lower courts, a set of potential cases for revision, and a distribution of future lower court cases, we show that the Court takes the case that will most significantly shape future lower court case outcomes in the direction that the Court prefers. That is, the Court grants cert to the case with maximum salience. If the Court is rather liberal (or conservative), then the most salient case is that which moves the discretionary range of the legal …

State Standing For Nationwide Injunctions Against The Federal Government, Jonathan R. Nash

Faculty Articles

Recent years have seen a substantial increase of cases in which states seek, and indeed obtain, nationwide injunctions against the federal government. These cases implicate two complicated questions: first, when a state has standing to sue the federal government, and second, when a nationwide injunction is a proper form of relief. For their part, scholars have mostly addressed these questions separately. In this Essay, I analyze the two questions together. Along the way, I identify drawbacks and benefits of nationwide injunctions, as well as settings where nationwide injunctions may be desirable and undesirable. I present arguments that, although I do …

Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone

Marquette Law Review

This Article studies statutory interpretation as it is practiced in the federal

courts of appeal. Much of the academic commentary in this field focuses on the

Supreme Court, which skews the debate and unduly polarizes the field. This

Article investigates more broadly by looking at the seventy-two federal

appellate cases that cite King v. Burwell in the two years after the Court issued

its decision. In deciding that the words “established by the State” encompass

a federal program, the Court in King reached a pragmatic and practical result

based on statutory scheme and purpose at a fairly high level of …

Punishment And Its Limits, Debra Parkes

All Faculty Publications

The nearly three decades in which Beverley McLachlin was a member of the Supreme Court, including as Chief Justice, witnessed a number of shifts in Canadian penal policy and in the reach and impact of criminal law. During the Harper decade (2006 to 2015) in which the federal Conservatives enjoyed a majority government led by Prime Minister Stephen Harper, criminal justice policy took a turn toward the punitive. The federal government tore a page out of the American legislative handbook and sought to “govern through crime”, albeit in a more restrained Canadian style.

Fire, Aim, Ready! Militarizing Animus: “Unit Cohesion” And The Transgender Ban, Eric Merriam

Dickinson Law Review (2017-Present)

President Trump’s currently litigated “transgender ban,” which excludes transgender persons from military service, is premised in part upon a claim that transgender persons’ presence in the military adversely affects “unit cohesion.” This use of identity- based “unit cohesion” as a justification for excluding a group from military service is the latest episode in a long history of the government asserting “unit cohesion” to justify excluding people from military service based on their identities. This Article contends that unit cohesion, when premised on identity, is always an impermissible justification for exclusion from military service because it is unconstitutional animus. Though …

Supreme Verbosity: The Roberts Court's Expanding Legacy, Mary Margaret Penrose

Faculty Scholarship

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

Punitive Preemption And The First Amendment, Rachel Proctor May

San Diego Law Review

In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique form …

Supreme Court Institute Annual Report, 2017-2018, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2017 – corresponding to the 2017-2018 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 98% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students.

A list of all SCI moot courts held in OT 2017 – arranged by argument sitting and date of Moot, and including the name and affiliation of each advocate and the number of observers – follows the narrative portion …

Hearing The States, Anthony Johnstone

Pepperdine Law Review

The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a …

Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall

Pepperdine Law Review

Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation’s history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant changes. …

Justice As Fair Division, Ian Bartrum, Kathryn Nyman, Peter Otto

Pepperdine Law Review

The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court’s decision-making process might act to reverse this loop and work to depoliticize the Court …

How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon

Pepperdine Law Review

Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases …

The Pirate’S Code: Constitutional Conventions In U.S. Constitutional Law, Mark Tushnet

Pepperdine Law Review

A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions’ erosion has been accompanied by …