Courts Commons^™

The Good Officer: President Trump, General Milley, And The “Necessity” Of Constitutional Fidelity, John C. Dehn

Brooklyn Law Review

Actions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital …

The Decline Of Representation Reinforcement In The Supreme Court: Increasing Deference To The Political Process, Jonathan L. Entin

Cleveland State Law Review

The Supreme Court has often interpreted the Constitution with an eye toward ameliorating failures of the political process. Over the past two decades, however, the Court has retreated from that concern with representation reinforcement. This article examines decisions upholding restrictive voter identification laws, making it more difficult to prove violations of the Voting Rights Act, and preventing federal courts from hearing claims of partisan gerrymandering. Some decisions that seem sympathetic to failures of the political process will not really promote representation reinforcement, and the Court’s most recent cases further reinforce the Court’s skepticism of claims of failures of the political …

Chevron Deference Is Dead, Long Live Deference, Jack M. Beermann

Faculty Scholarship

The demise of Chevron deference standing alone may turn out to be much less important for the future of administrative law and agency regulation than many believe. The Court explicitly approved of deference under the Skidmore factors, which instruct reviewing courts to “resort for guidance, even on legal questions” to “the interpretations and opinions of the relevant agency, made in pursuance of official duty and based upon specialized experience.”8 Further, the Court had already created numerous limitations to the reach of Chevron deference and, as the Court noted, it had not deferred under Chevron in nearly a decade. Chevron deference …

2024 Esther Clark Moot Court Competition 10-28-2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Brief Of Professors William Araiza, Jeffrey Lubbers, And Peter M. Shane As Amici Curiae In Support Of Defendantappellant Federal Trade Commission, Jeffrey Lubbers

Amicus Briefs & Court Filings

Amici are law professors who teach and write in the fields of administrative law and statutory interpretation. Amicus William Araiza is the Stanley A. August Professor of Law at Brooklyn Law School. Amicus Jeffrey Lubbers is Professor of Practice in Administrative Law at American University, Washington College of Law. Amicus Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University, Moritz College of Law. As leading administrative law scholars, amici have a strong interest in the sound development of administrative law in the federal courts, and are submitting this …

Join Us For A Conversation With Judge Matthew Solomson: Building A Legal Career, Rising To The Bench, And Defending American Values, Cardozo Federalist Society, Matthew H. Solomson

2024–2025 Flyers

No abstract provided.

Egbert V. Boule And The Dwindling Bivens Doctrine, Luke Smith

MC Law Review

No abstract provided.

"Legally Magic" Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Roseanna Sommers, Kate Weisburd

Law & Economics Working Papers

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using "explicit," "clear," and "unambiguous" statements - or, as some dissenting judges have lamented, using "legally magic" words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than …

Criminal Juror Challenges And Csli: A Rule 16 Revision To Maintain Impartial Juries, Ivy Kaplan

Northwestern University Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants “the right to a speedy and public trial by an impartial jury of the State.” Voir dire, the procedure during which the prosecution and the defense may challenge prospective jurors for cause or exercise peremptory challenges, purports to uphold this right. When the prosecution has access to cellular geolocation data on prospective jurors that the defense lacks, however, it may jeopardize the defendant’s Sixth Amendment rights.

This Note proposes a solution to that problem in the form of an addition to Rule 16 of the Federal Rules of Criminal Procedure. …

Accommodating Incompetency In Immigration Court, Elizabeth Jordan

Northwestern University Law Review

In criminal law, an individual must be deemed competent to stand trial, yet our immigration courts routinely order the deportation of incompetent noncitizens. A removal proceeding against a noncitizen—where an outcome of deportation often risks life-threatening harm—continues apace even if the noncitizen has been deemed incompetent by the immigration judge. In place of halting proceedings, the immigration judge imposes “safeguards” pursuant to a provision of the immigration code that neither defines nor explains the term. In practice, judges’ application of the term “safeguards” is often absurd. The implications of continuing a proceeding against a noncitizen with a disability affecting competency …

The Sec As An Entrepreneurial Enforcer, James J. Park

Northwestern University Law Review

The truth of disclosures by public companies is policed by both private plaintiffs and the Securities and Exchange Commission (SEC). The courts and many commentators have viewed the SEC as a more responsible enforcer than private litigants. Entrepreneurial enforcers with a profit motive have an incentive to advance questionable legal theories to expand the reach of Rule 10b-5, the primary federal prohibition of securities fraud. In contrast, the conventional view is that a public enforcer will bring straightforward cases against public companies. This Article argues that this perception is dated, and that the SEC has become more entrepreneurial in its …

The Seventh Amendment Right To Jury Trial In The Administrative State: Recognizing The Dangers Of The Constitutional Moment, Martin H. Redish, Samy Abdelsalam

Notre Dame Law Review

One prominent constitutional scholar has sought to legitimize this constitutional transformation through resort to a strange and controversial analytical model he describes as the “constitutional moment.” In this Article, we plan to establish two important points: (1) there exists no principled mode of analysis of the Seventh Amendment right to jury trial that justifies the Court’s categorical dichotomy between Article III and non–Article III forums for purposes of the right’s applicability, and (2) while the theory of the “constitutional moment” would in fact justify the Court’s insulation of the administrative state from Seventh Amendment applicability, reliance on such a theory …

Law School News: Exploring Law From Classroom To Courtroom 11-08-2024, Andrew Clark

Life of the Law School (1993- )

No abstract provided.

The Appeal Of The Apex Court In Botswana: The Case Of Carter Morupisi V. State, Muna B. Ndulo, Louis Koen, Samantha Smit

SAIPAR Case Review

This case note discusses the Botswana Court of Appeal's ruling in Carter Morupisi v State, which addressed the High Court's unprecedented attempt to review a decision of the Court of Appeal. The commentary highlights the fundamental principle of judicial hierarchy and the separation of powers in Botswana's constitutional framework. The Court of Appeal emphatically rejected the High Court's jurisdiction to review its judgments, reaffirming its position as the final arbiter (highest judicial authority). The authors emphasise that while the High Court may raise constitutional questions with regards to Apex courts decisions, it cannot adjudicate on them, reinforcing the concept of …

Women In Robes October 28, 2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Brief Of Amici Curiae Manhattan Institute And Notre Dame Education Law Project In Support Of Plaintiffs-Appellants And Reversal, Nicole Stelle Garnett, Ilya Shapiro, Tim Rosenberger

Court Briefs

CASE NO. 24-4291
John Woolard v. John Thurmond

On Appeal from the United States District Court for the Eastern District of California
Case No. 2:23-CV-02305-JAM-JDP

From the Summary of Argument

As part of California’s diverse array of education options, homeschooling parents may choose to enroll their children in independent-study charter schools, which work with parents to develop custom curriculum for their children’s unique educational needs. The plaintiffs did just that here and enrolled their children in Blue Ridge Academy and Visions in Education, both independent-study charter schools. Unfortunately, not all parents are able to avail themselves of this opportunity because …

Panel Four: Finding A Silver Lining In The Darkest Clouds: How Today's Economic Crisis Creates Opportunities For Reform And Cost Savings In The Administration Of The Death Penalty, Tony Mauro, Jean Faria, Jon B. Gould, Elizabeth (Libby) Sykes, Malcolm R. Hunter

Tennessee Journal of Law and Policy

No abstract provided.

Panel Discussion 4: Best Practices In Representing Children In Court, Timothy Irwin, Carlton Lewis, Dwight Stokes

Tennessee Journal of Law and Policy

No abstract provided.

The Costs Of The Vexatious Lawyer: Who Bears Responsibility?, Jayanth K. Krishnan

Articles by Maurer Faculty

This Article investigates how the law should respond to a lawyer who engages in unprofessional, tormenting, or what is often referred to as “vexatious” conduct during litigation. At present, a federal law – 28 U.S.C. §1927 – allows courts to issue sanctions upon a vexatious lawyer. When such a lawyer works for a law firm, a deep split has emerged among the circuits. Some courts have ruled that law firms may also be liable for their lawyers’ actions under the statute. Other circuits, though, have concluded that law firms are free from this type of vicarious liability. Unfortunately, the problem …

Leveling The Playing Field For Racial Justice In The Civil Litigation System, Suzette M. Malveaux

Scholarly Articles

Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should …

Separation Of Powers Restrictions On Judicial Rulemaking: A Case Study Of Federal Rule 4, Ralph U. Whitten

Maine Law Review

Debates over the validity of Federal Rules of Civil Procedure have historically centered on the "substantive rights" restriction of the Rules Enabling Act of 1934. While Supreme Court decisions from Sibbach v. Wilson & Co. through Hanna v. Plumer and beyond have arguably deprived the restriction of any practical force, scholars have consistently favored a more rigorous interpretation of the directive that federal rules not "abridge, enlarge, or modify any substantive rights." Despite the historic impotence of the substantive rights restriction, discussions of the validity of the Federal Rules of Civil Procedure continue, even today, to center on the substantive …

Brief Of Lindsay And Matt Moroun Religious Liberty Clinic As Amicus Curiae In Support Of Petitioners, John A. Meiser, Domenic Canonico

Court Briefs

No. 24-319
Roman Catholic Diocese of Albany v. Adrienne A. Harris

On Petition for a Writ of Certiorari to the New York State Court of Appeals

From the Summary of Argument

New York’s abortion-coverage mandate requires many faith-based organizations to violate their deeply held religious beliefs about the sanctity of life. The exemption New York offers to only a narrowly drawn, ill-defined subset of preferred religious groups does not remedy that dramatic intrusion into free exercise rights. Indeed, it only compounds the problem.

U.S. Court Of Appeals For The Seventh Circuit To Hold Oral Argument At The Maurer School Of Law, James Owsley Boyd

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

A three-judge panel of the United States Court of Appeals for the Seventh Circuit—one of 13 appellate courts of the United States federal judiciary—will hear oral argument at the Indiana University Maurer School of Law on Thursday, October 24.

The arguments are scheduled to begin at 9:30 a.m. in the Law School’s DeLaney Moot Court Room. The proceedings are open to the public, with seating available on a first-come, first-served basis starting at 9 a.m. An overflow room will be available if needed. The arguments are expected to conclude by 12:30 p.m.

“The Seventh Circuit Court of Appeals has a …

Legal Standards Governing Modification Of Child Custody Orders, Christian T. Chandler

Maine Law Review

Child custody is an area of the law where the courts have tread cautiously. Bitter disputes between separating parents often erupt into court struggles over which parent will gain custody of the minor children. As a result of this discord, and the terrible toll it can take on both the parents and the children, the courts are wary of modifying the original custody decree and moving a child from one parent to another. Courts must vigilantly deter custody suits brought purely for vengeance or harassment. The court acts as the child's legal protector when a change of custody issue is …

Habeas Corpus—A Better Remedy In Visitation Denial Cases, James A. Albert, Gregory A. Brodek

Maine Law Review

Most family law statistics are sobering. For example, in 1986, there were 2,400,000 marriages in the United States and 1,159,000 divorces. In 1985, there were 2,425,000 marriages and 1,187,000 divorces. Millions of children are affected by these divorces each year as courts decide which parent should be awarded their custody. In 1986, there were approximately 63,000,000 American children and 6,139,000 of these children came from broken homes. According to official census statistics, twenty-one percent of America's children live only with their mother while less than three percent live only with their father. In most divorce cases, Mom gets custody and …

Brief Of Apache Elder Ramon Riley, Professor Michalyn Steele, And Six Native American Rights And Cultural Heritage Organizations As Amici Curiae In Support Of Petitioner, John A. Meiser, Meredith H. Kessler

Court Briefs

No. 24-291
Apache Stronghold v. United States of America

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

Meaningful access to sacred sites such as Oak Flat is an indispensable part of many Indigenous tribes’ religious exercise. Nonetheless, the government has repeatedly denied necessary access to these sites, and even destroyed them, thwarting the ability of tribal members to exercise core aspects of their spiritual practices. Regrettably, the Ninth Circuit’s errant decision denies the Apache people critical legal protections against such destruction—and thus only invites the …

Brief Amici Curiae Of Religious Liberty Law Scholars In Support Of Petitioner, W. Thomas Wheeler, Thomas C. Berg, Richard W. Garnett

Court Briefs

No. 24-291
Apache Stronghold v. United States

On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Introduction and Summary of Argument

The federal government owns the land at Oak Flat, where Apache people have worshiped and conducted ceremonies for centuries. As the district court’s findings show, “Apaches view Oak Flat as a ‘direct corridor’ to their Creator’s spirit”—a place “‘uniquely endowed with holiness and medicine’”—“and neither ‘the powers resident there, nor [the Apaches’] religious activities . . . can be relocated.’” App. 201a (opinion of Murguia, C.J.) (quoting Apache Stronghold …

Unfenced: The Fourth Circuit Gives Geofencing Its First Appellate Go-Ahead In United States V. Chatrie, Jordan Wallace-Wolf

Washington and Lee Law Review Online

In United States v. Chatrie, the Fourth Circuit issued the first federal appellate opinion on the Fourth Amendment status of geofencing queries. The opinion is significant because geofences present a conceptual challenge to the framework of Carpenter v. United States, the reigning Supreme Court precedent on the Fourth Amendment status of digital searches. That opinion held that long-term tracking of a target individual was a search. However, geofencing reveals information about an indeterminate number of individuals for only a short time, in virtue of their being at a target location during a target span of time. Does the …

Legal Standards Governing Modification Of Child Custody Orders, Christian T. Chandler

Maine Law Review

Child custody is an area of the law where the courts have tread cautiously. Bitter disputes between separating parents often erupt into court struggles over which parent will gain custody of the minor children. As a result of this discord, and the terrible toll it can take on both the parents and the children, the courts are wary of modifying the original custody decree and moving a child from one parent to another. Courts must vigilantly deter custody suits brought purely for vengeance or harassment. The court acts as the child's legal protector when a change of custody issue is …

Cameras In Maine's Courts: Has The Time Come? Will It Ever?, Joseph M. O'Connor

Maine Law Review

Should television cameras be allowed in Maine's courtrooms? The answer to this question implicates policies involving the rights of parties, witnesses, the media, and the public. Nearly ten years ago, the Supreme Court ruled conclusively that there is no constitutional impediment to allowing television coverage of trials in state courts. Since then, the majority of states have promulgated rules, with greater or lesser degrees of restriction, allowing television coverage of proceedings in their courts. This trend has not abated; with the adoption of audio-visual coverage rules by the Vermont Supreme Court in 1989, Maine is now the only New England …