Courts Commons^™

Asarco Delenda Est, John Greabe

West Virginia Law Review

ASARCO Inc. v. Kadish is the most important Supreme Court decision addressing the adjudication in state courts of federal claims that Article III’s case-or-controversy requirements would bar lower federal courts from hearing. But there are two serious problems with the reasoning of ASARCO: one involving an error of omission and the other an error of commission. ASARCO’s error of omission is its apparent assumption that a party barred from asserting a federal claim in federal court because of a lack of redressable Article III injury caused by the conduct complained of should face no barriers to obtaining relief on the …

Sotomayor Cites Maurer Faculty Member In Scotus’ Decline To Hear Alabama Bite Mark Case, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The case of an Alabama man convicted of murdering his wife in 1985 will not be reviewed by the U.S. Supreme Court, despite evidence that, nearly 40 years later, has been “wholly discredited.”

The Supreme Court denied certiorari in the case of McCrory v. Alabama, but Justice Sonia Sotomayor cited research from Indiana University Maurer School of Law Professor Valena Beety in her concurring agreement with the court’s decision.

Charles M. McCrory was convicted for the murder of his wife, Julie Bonds, based in large part on expert testimony from an odontologist who matched McCrory’s teeth to two bite marks …

Against "The Huddleston Test", Dora Klein

Faculty Articles

Many courts—mostly federal, but also some state courts—are misapplying the United States Supreme Court's decision in the 1988 case United States v. Huddleston. These courts have used a single paragraph of dicta from the Huddleston opinion to craft multipart checklist-type "tests" that displace the single requirement of Rule 404(b) of the Federal Rules of Evidence (or corresponding state rules). This displacement risks the admission of other acts evidence without determining whether the evidence is relevant for a non-character purpose by means of inferences that do not involve character. These Huddleston tests thus undermine Rule 404(b)'s prohibition that other acts evidence …

Faux Advocacy In Amicus Practice, James G. Dwyer

Pepperdine Law Review

Amicus brief filing has reached “avalanche” volume. Supreme Court Justices and lower court judges look to these briefs particularly for non-case-specific factual information––“legislative facts”—relevant to a case. This Article calls attention to a recurrent yet unrecognized problem with amicus filings offering up legislative facts in the many cases centrally involving the most vulnerable members of society—namely, non-autonomous persons, including both adults incapacitated by mental illness, intellectual disability, or other condition, and children. Some amici present themselves as advocates for such persons but use the amicus platform to serve other constituencies and causes, making false or misleading factual presentations about the …

Brief Of Professor Derek T. Muller In Support Of Applicant, Thomas R. Lee, John J. Nielsen, Tyler B. Lindley, Derek T. Muller

Court Briefs

No. 22A337
Senator Lindsey Graham v. Fulton County Special Purpose Grand Jury

On emergency application for a stay and injunction pending appeal from the United States Court of Appeals for the Eleventh Circuit

From the Introduction and Summary of Argument

The merits of this case are colored by partisan overtones. But the overarching legal questions implicate nonpartisan, institutional concerns. The Speech or Debate Clause has deep historical roots that protect important interests in legislative independence. That independence requires strong protection for legislative inquiry under an objective standard rooted in the facial basis for a particular investigation. If courts intrude on …

First Comes Love. Then Comes Marriage. Then Comes A Baby In A Baby Carriage: An Application Of Protective Surrogacy Laws To The Tarheel State, Justin Lo

Seattle University Law Review

Assisted Reproductive Technology (ART) and determining parentage have a common feature: each is governed by state law or the lack of such laws. This lack of statutory regulations presents significant legal challenges to gay men who wish to start a family. Because same-sex male couples seeking to become fathers through ART and surrogacy are the most likely demographic to be impacted when determining parentage, laws that influence the direction of surrogacy will undeniably facilitate whether both males will be deemed a father. To provide same-sex male couples with a pathway to parenthood, North Carolina should (1) develop robust, protective surrogacy …

Supreme Court Fact-Finding And The Distortion Of American Democracy: Hearing Before The Subcommittee On Federal Courts, Oversight, Agency Action And Federal Rights Of The Committee On The Judiciary, Senate, One Hundred Seventeenth Congress, First Session, Allison Orr Larsen

Congressional Testimony

No abstract provided.

“Remarkable Influence”: The Unexpected Importance Of Justice Scalia's Deceptively Unanimous And Contested Majority Opinions, Linda L. Berger, Eric C. Nystrom

The Journal of Appellate Practice and Process

No abstract provided.

The Doctrine Of Clarifications, Pat Mcdonell

Michigan Law Review

Clarifications are a longstanding but little-studied concept in statutory interpretation. Most courts have found that clarifying amendments to preexisting statutes bypass retroactivity limitations. Therein lies their power. Because clarifications simply restate the law, they do not implicate the presumption against retroactivity that Landgraf v. USI Film Products embedded in civil-statute interpretation. The problem that courts have yet to address is how exactly clarifying legislation can be distinguished from legislation that substantively changes the law. What exactly is a clarification? The courts’ answers implicate many of the entrenched debates in statutory interpretation. This Note offers three primary contributions. First, it summarizes …

Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.

This …

Section 230 Of The Communications Decency Act: Why California Courts Interpreted It Correctly And What That Says About How We Should Change It, E. Alex Murcia

Loyola of Los Angeles Law Review

In 1996, Congress passed the Communications Decency Act (CDA). In 1997, the United States Supreme Court struck down most of the CDA. However, section 230, which protects providers and users of interactive computer services from liability for defamatory content posted to their platforms by third parties, remains in effect. In the California and federal judicial systems, courts interpret section 230’s immunity provisions broadly—so that the statute conveys broad immunity. This Note argues that the broad application of section 230’s protections is consistent with the intent of the statute’s drafters. However, it also contends that (1) this interpretation of section 230 …

Possible Reliance: Protecting Legally Innocent Johnson Claimants, Keagan Potts

Michigan Law Review

The writ of habeas corpus presents the last chance for innocent defendants to obtain relief from invalid convictions and sentences. The writ constitutes a limited exception to the finality of judgments. Given the role finality plays in conserving judicial resources and deterring criminal conduct, exceptions created by habeas must be principally circumscribed. Since the Supreme Court’s invalidation of the Armed Career Criminal Act’s residual clause in Johnson v. United States, the federal courts of appeals have attempted to develop a test that protects the writ from abuse by Johnson claimants.

This Note first contributes a new understanding of the …

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Faculty Publications

"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Le Role Politique De La Cour Supreme, Toujours Recommence, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

In Defense Of (Circuit) Court-Packing, Xiao Wang

Michigan Law Review Online

Proposals to pack the Supreme Court have gained steam recently. Presidential candidate Pete Buttigieg endorsed a court-packing plan at the start of his campaign, and several other candidates also indicated a willingness to consider such a plan, including Senators Elizabeth Warren and Amy Klobuchar. Legal scholars have similarly called upon Congress to increase the size of the Supreme Court, particularly following the heated confirmations of Justices Neil Gorsuch and Brett Kavanaugh. These suggestions for Court reform have only gotten more pronounced with the recent passing of Justice Ruth Bader Ginsburg, the subsequent nomination of Judge Amy Coney Barrett, and the …

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would …

Decoding Judicial Reasoning In China: A Comparative Empirical Analysis Of Guiding Cases, Runhua Wang

Cleveland State Law Review

The judicial system in China recently started using legal precedents—known as guiding cases—as a new legal source to eliminate adjudicative inconsistency. Guiding cases (“GCs”) present the current judicial reasoning to some extent and can be used to predict the future of judicial reasoning in China. What are GCs? What legal issues do GCs address? How do they address legal issues? How do GCs affect the legal system and adjudication in China? This Article answers these questions with empirical evidence and comparisons to judicial reasoning in the United States. It is the first empirical research providing a systematic review of all …

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

For Cause: Rethinking Racial Exclusion And The American Jury, Thomas Ward Frampton

Michigan Law Review

Peremptory strikes, and criticism of the permissive constitutional framework regulating them, have dominated the scholarship on race and the jury for the past several decades. But we have overlooked another important way in which the American jury reflects and reproduces racial hierarchies: massive racial disparities also pervade the use of challenges for cause. This Article examines challenges for cause and race in nearly 400 trials and, based on original archival research, presents a revisionist account of the Supreme Court’s three most recent Batson cases. It establishes that challenges for cause, no less than peremptory strikes, are an important—and unrecognized—vehicle of …

The Central Park Five As “Discrete And Insular” Minorities Under The Equal Protection Clause: The Evolution Of The Right To Counsel For Wrongfully Convicted Minors, Todd K. Beharry

Journal of Race, Gender, and Ethnicity

No abstract provided.

Confession Obsession: How To Protect Minors In Interrogations, Cindy Chau

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Publications

No abstract provided.

Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram

Journal of the National Association of Administrative Law Judiciary

The appointment of Justice Neil Gorsuch to the Supreme Court of the United States has left many wondering if a change to the Chevron doctrine is impending. Justice Gorsuch’s colleague on the Court, Justice Clarence Thomas, shares similar views on Chevron. This article will compare the federal rule to three different states: Indiana, Delaware, and Arizona. Each state has taken a different path in determining that the judiciary should not give deference to an agency’s interpretation of the statutes that it is charged with enforcing. Delaware has affirmatively declared that the Chevron doctrine is not applicable in its state. A …

Age Of Unreason: Rationality And The Regulatory State, Louise Weinberg

University of Michigan Journal of Law Reform

A curious phenomenon, not previously remarked, appears in current international and interstate cases in a common configuration. These are cases in which a nonresident sues a company at the company’s home; the plaintiff would almost certainly win there on stipulated facts; and judgment is for the defendant as a matter of law. In cases in this familiar configuration it appears that courts will struggle to find rationales. Judges attempt to rely on arguments which ordinarily would be serviceable, but which, in cases so configured, seem to become irrational. Because the relevant configuration of cases is common, the problem is widespread. …

The Most Revealing Word In The United States Reports, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such …

National Injunctions And Preclusion, Zachary D. Clopton

Michigan Law Review

Critics of national injunctions are lining up. Attorney General Jeff Sessions labeled these injunctions “absurd” and “simply unsustainable.” Justice Clarence Thomas called them “legally and historically dubious,” while Justice Neil Gorsuch mockingly referred to them as “cosmic injunctions.” Scholars in leading law reviews have called for their demise. Critics argue that national injunctions encourage forum shopping, unfairly burden the federal government, and depart from the history of equity. They also claim that national injunctions contradict the Supreme Court’s decision in United States v. Mendoza to exempt the federal government from offensive nonmutual issue preclusion—a doctrine that permits nonparties to benefit …

Equality In Germany And The United States, Edward J. Eberle

San Diego International Law Journal

This Article will proceed as follows. Part I will describe the methodology and approach of American and German equality law. The constitutional Courts of both countries value equality highly, resulting in strong and well developed jurisprudence. Each of the Courts employ a sliding scale of judicial scrutiny with the degree of scrutiny varying with the trait or personal interest affected by the governmental measure. Strict or extremely intensive scrutiny applies to measures targeting personal traits that especially affect a person's identity, like race, national heritage, or alienage under United States law, and race, sex, gender, language, national origin, disability, faith, …

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."

Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins

Michigan Journal of Race and Law

In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine …

Personal Jurisdiction And Aliens, William S. Dodge, Scott Dodson

Michigan Law Review

The increasing prevalence of noncitizens in U.S. civil litigation raises a funda-mental question for the doctrine of personal jurisdiction: How should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal juris-diction, in cases like Bristol–Myers Squibb Co. v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of personal jurisdiction over aliens. Under this theory, alienage status broadens the geographic range for mini-mum contacts from a single state to the whole nation. …