Courts Commons^™

Counting To Four: The History And Future Of Wisconsin's Fractured Supreme Court, Jeffrey A. Mandell, Daniel J. Schneider

Marquette Law Review

Over the past decade, the Wisconsin Supreme Court has issued “fractured” opinions—decisions without majority support for any one legal rationale supporting the outcome—at an alarming clip. These opinions have confounded legal analysts, attorneys, and government officials due to their lack of majority reasoning, but also due to their length and the court’s particular procedures for assigning, drafting, and labelling opinions. This has become especially problematic where the court has issued fractured opinions in areas core to the basic functioning of state and local government, leaving the state without clear precedential guidance on what the law is. Yet, virtually no one …

When Machines Can Be Judge, Jury, And Executioner: Justice In The Age Of Artificial Intelligence (Book Review), Stacy Fowler

Faculty Articles

In When Machines Can Be Judge, Jury, and Executioner, former federal judge Katherine Forrest raises concerns over the pervasive use of artificial intelligence (AI) in the American justice system to produce risks and need assessments (RNA) regarding the probability of recidivism for citizens charged with a crime. Forrest’s argument centers on AI’s primary focus on utilitarian outcomes when assessing liberty for individual citizens. This approach leads Forrest to the conclusion that in its current form, AI is “ill-suited to the criminal justice context.” Forrest contends that AI should instead be programmed to focus on John Rawl’ 'concept of justice as …

The United States And The United Nations Convention On The Law Of The Sea, Bernard H. Oxman

Journal of Maritime Law and Commerce

No abstract provided.

Appellant's Reply Brief, Zack Greenamyre, Gerald R. Weber Jr., John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 23-10332
Rev. Stephen Jarrard v. Sheriff of Polk County

Appeal from the United States District Court for the Northern District of Georgia No. 4:20-cv-00002-MLB

From the Argument

A jury could easily find that Moats and Sharp excluded Jarrard from the ministry program because they disfavor his religious expression.

African Courts And International Human Rights Law, John Mukum Mbaku

Brooklyn Journal of International Law

The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact …

Indefinite Detention At Guantánamo: How The National Defense Authorization Act Results In Indefinite Detention In Violation Of International Human Rights, Molly Turro

Brooklyn Journal of International Law

The majority of the remaining detainees at Guantánamo Bay have been cleared for transfer to other countries. Provisions of the National Defense Authorization Act that prohibit government funds to be used for transfer and reinforce the United States government’s authority to detain enemy combatants until the end of active hostilities have left these detainees waiting in limbo to be transferred elsewhere. The following piece argues that the resulting indefinite detention that these Guantánamo detainees face is both a violation of international human rights and an unnecessary financial burden on the US government. This Note compares the approach taken by the …

Brief Of Amici Curiae Eugene Volokh, Richard W. Garnett, & Michael Stokes Paulsen In Support Of Petitioner, Brian D. Schmalzbach, Richard W. Garnett

Court Briefs

No. 23-74
Debra A. Vitagliano v. County of Westchester, New York

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

From the Summary of Argument

Even many steadfast supporters of abortion rights believed that the Court erroneously applied the First Amendment in Hill v. Colorado, 530 U.S. 703 (2000). As put bluntly by leading liberal scholar Professor Laurence Tribe, Hill was among the candidates for “most blatantly erroneous” decisions of the 1999 Term. Tribe added that the case was “slam- dunk simple” yet the Court got it “slam-dunk wrong.”

Pro-choice …

Prosecutorial Actus Reus: Appellate Review Of Prosecutorial Misconduct And The Diminishment Of Responsibility, Elizabeth Griffiths, Heather L. Scheuerman, Sandy Xie

International Journal on Responsibility

The socio-historical concept of criminal responsibility links the action (actus reus) and mental state (mens rea), or intention, of the actor (i.e., the defendant) to determine legal and moral liability for his or her behavior and to apportion punishment. When the actor responsible for immoral conduct is the prosecutor in pursuit of a conviction, the courts respond very differently. More specifically, because prosecutors are presumed to be moral and ethical system actors, assumptions about their good character likely influence the ways in which they are held to account. This study explores the content and arguments made …

Examining Remorse In Attributions Of Focal Concerns During Sentencing: A Study Of Probation Officers, Colleen M. Berryessa

International Journal on Responsibility

This research, using interviews with probation officers in the United States (n = 151) and a constant comparative method for analysis, draws from the focal concerns framework to qualitatively model a process by which probation officers use a defendant’s remorse to attribute focal concerns in order to guide their sentencing recommendations in pre-sentencing reports. The model suggests that officers use expressions of remorse to make attributions about mitigated criminal intention (blameworthiness and notions of responsibility), reduced dangerousness and a high potential for reform (community protection), and organization-level effects for increasing caseload efficiency and using correctional resources (practical effects of …

Are Handguns A Matter Of Privacy?, Bret N. Bogenschneider

St. Mary's Law Journal

The thesis developed in this Article is that the Heller and Bruen cases involved primarily right-to-privacy concerns. By its terms, the Second Amendment involves the collective right to bear Arms in connection to regulated militia service and does not mention handguns. Handguns were not “ordinary military weapons” employed by a militia at the time of the American revolution under the originalist view. The Ninth and Fourteenth Amendments are more appropriate sources for an individual privacy right related to the possession of handguns for private purposes, such as for self-defense or suicide. However, a prohibition of handguns under this approach would …

The History Of Forensic-Science Evidence In Criminal Trials And The Role Of Early “Success” In Establishing Its Putative Reliability, Carrie Leonetti

St. Mary's Law Journal

This Article posits the history of forensic-science evidence plays a significant role in the unquestioning manner of its modern acceptance. It traces early high-profile forensic science “successes” and the public reactions to them. It argues the public perception of the “advances” of forensic science continues to play a role in the lack of scrutiny given to these disciplines in admissibility decisions today. It concludes, when it comes to forensic science, history should play a different role by serving as a critical warning rather than a congratulatory buttress.

Texas Juvenile Justice: The Need For A “Second Look” At Juvenile Prison Sentences, Kyle Jenkins

St. Mary's Law Journal

No abstract provided.

Does The Prohibition Of Counter-Supersedeas Against The State Prohibit Any Action With The Same Result?—A Look At In Re Texas Education Agency, Heather C. Montoya

St. Mary's Law Journal

No abstract provided.

Judicial Selection That Fails The Separation Of Powers, Stephen Ware

Catholic University Law Review

Executive power should be constrained by checks and balances. The United States’ long and strong tradition of concerns about executive power, and its complementary tradition of Madisonian checks and balances on and to the executive, include the selection of supreme court justices. Neither the U.S. Constitution nor the constitution of any state places solely in the executive the power to appoint a justice to begin a new term on the (federal or state) supreme court. However, several states fail to constrain gubernatorial power in selecting justices to finish a term already started by another justice and these interim appointments are …

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.

Aals Federal Courts Section Newsletter, Katherine Mims Crocker, Celestine Richards Mcconville

Popular Media

No abstract provided.

Law School News: A More Perfect Union Through A Diverse Judiciary 08-07-2023, Gregory W. Bowman

Life of the Law School (1993- )

No abstract provided.

Jefferson's Ghost: The Local Action Rule In Federal Courts, Jeffrey L. Rensberger

Cardozo Law Review

The local action rule required that certain actions concerning real property be adjudicated in the federal court in the state (and perhaps the district) containing the property. This rule had been apart of the law of the United States since the early days of the nation. In 2011, Congress eliminated the local action rule as a matter of venue. But some courts have held that the local action rule pertains to subject matter jurisdiction, not merely venue, and that it survived Congress's elimination of the venue aspect of the rule. This is wrong as to cases in federal court involving …

Confirm Julie Rikelman For The First Circuit, Carl Tobias

University of Richmond Law Review

Now that the United States Senate has reconvened after pauses for holidays, the upper chamber must expeditiously appoint designee Julie Rikelman to the U.S. Court of Appeals for the First Circuit, which is the smallest, albeit critical, appellate court. The nominee, whom President Joe Biden tapped during late July 2022, would supply remarkable experiential, gender, and ideological diversity gleaned from pursuing much cutting-edge reproductive freedom litigation, which included arguing Dobbs before the Supreme Court that overturned Roe v. Wade. The nominee has definitely excelled in law’s highest echelon over twenty-plus years, most recently as the U.S. Litigation Director in the …

Confirm Rachel Bloomekatz To The Sixth Circuit, Carl Tobias

University of Richmond Law Review

Now that the United States Senate is convening after the July Fourth holiday, the upper chamber must promptly appoint Rachel Bloomekatz to the U.S. Court of Appeals for the Sixth Circuit. The nominee, whom President Joe Biden selected in May 2022, provides remarkable experiential, gender, and ideological expertise that she deftly realized in litigating high-profile gun control, environmental, and other significant cases in federal appellate courts and district courts. Over fifteen years, the nominee has reached law’s pantheon across a broad spectrum from extremely prestigious clerkships with Justice Stephen Breyer and particularly distinguished federal court and state court jurists to …

The Unfulfilled Promise Of Self-Determination In Court-Connected Mediation, Peter Reilly

Faculty Scholarship

In the context of mediation, party self-determination refers to the ability of disputants to have power, control, and autonomy in the process. There are numerous process design questions involved in running a mediation, no matter its subject matter. Consider just one example: “Should the mediation be conducted in-person, or virtually?” The answer to this question can have a profound impact on the direction and course of a mediation, including its outcome. Yet, in the context of court-connected mediation, disputing parties are not consistently provided the opportunity to give input on how such process design questions are resolved. In fact, these …

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion And Encourage Litigation, Meg Penrose

Faculty Scholarship

Good judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed …

Disciplining Members Of The Police And Security Force In The United Arab Emirates Between Effectiveness And Guarantee, Abdel Aziz Moneim Khalifa

Journal of Police and Legal Sciences

The study aimed to shed light on the disciplinary system for members of the police and security forces, from the point of view of the disciplinary guarantees guaranteed in this system in accordance with the provisions of Federal Law, issued on the police and security force according to its latest amendments, considering that these guarantees constitute rights guaranteed by law to the employee when he is referred to discipline, As a condition for the validity of imposing the penalty on him for the disciplinary violations against him established by law, in return for the disciplinary authority’s competence in this regard …

Amicus Curiae Brief Of International Scholars In Support Of Appellee And Affirmance, Paul M. Levine, James J. East Jr., Carlos Ramos-Mrosovsky, Diane Desierto

Court Briefs

No. 23-7008
Ioan Micula v. Government of Romania

On Appeal from the United States District Court for the District of Columbia, Case No. 1:17-cv-02332-APM Hon. Amit P. Mehta, United States District Judge

From the Argument

ICSID Convention Article 54 requires the United States to enforce Appellees’ final ICSID award in fulfillment of treaty obligations owed to every other Contracting State to the ICSID Convention. That the courts of the United States must enforce ICSID awards without the extensive review that Appellant demands is at the heart of the ICSID Convention’s multilateral framework for investor-state dispute settlement, and precisely the result …

Amicus Curiae Brief Of International Scholars In Support Of Appellee And Affirmance, Paul M. Levine, James J. East Jr., Carlos Ramos-Mrosovsky, Diane Desierto

Court Briefs

No. 23-7031, 23-7032
NextEra Energy Global Holdings B.V. v. Kingdom of Spain

On Appeal from the United States District Court for the District of Columbia, Case Nos. 1:19-cv-1618 and 1:19-cv-1871 Hon. Tanya S. Chutkan, United States District Judge

From the Argument

ICSID Convention Article 54 requires the United States to enforce Appellees’ final ICSID awards in fulfillment of treaty obligations owed to every other Contracting State to the ICSID Convention. That the courts of the United States must enforce ICSID awards without the extensive review that Appellant demands is at the heart of the ICSID Convention’s multilateral framework for investor-state …

The Impact Of Insulating Immigration Courts From Judicial Review On America’S New Generation Of Families, Christian Sanchez Leon

Washington and Lee Law Review

This Note could be read as another Note addressing Congress’s power to strip jurisdiction from Article III courts. Yet, when this power is exercised in the immigration context, its impact extends far beyond the realm of checks and balances. Instead, this Note is about the insulation of the Board of Immigration Appeals (“BIA”) and its unfettered ability to create, interpret, and adjudicate its own laws. Not allowing courts to review BIA decisions leaves mixed-status families vulnerable to the harsh consequences of inherently arbitrary decisions made by executive officers.

These practices go against the established common law principles of family unity. …

Creating A People-First Court Data Framework, Lauren Sudeall, Charlotte S. Alexander

Vanderbilt Law School Faculty Publications

Most court data are maintained--and most empirical court research is conducted--from the institutional vantage point of the courts. Using the case as the common unit of measurement, data-driven court research typically focuses on metrics such as the size of court dockets, the speed of case processing, judicial decision-making within cases, and the frequency of case events occurring within or resulting from the court system.

This Article sets forth a methodological framework for reconceptualizing and restructuring court data as "people-first"-centered not on the perspective of courts as institutions but on the people who interact with the court system. We reorganize case-level …

Some Thoughts On Reply Briefs, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

This essay provides suggestions for writing reply briefs. It begins with a quick review of the well-understood ways in which an appellate advocate should acquire and review the information needed to write a comprehensive and powerful reply brief.

The essay then turns to the more difficult challenges of crafting the brief, making three key points:

First, don't just go tit-for-tat in responding to one point after another advanced by the appellee. That can be boring and ponderous and often requires you to argue the case on your opponent's terms. Rather, re-frame the case on your client's terms, taking the case …

This Isn't A Reality Show: How Social Media Livestreams Of High-Profile Criminal Trials May Violate One's Right To A Fair Trial, Ryan Fenn

St. John's Law Review

(Excerpt)

Since the invention of television in 1927, the American legal system faced drastic changes. In 1935, the first trial was broadcast to the public in the case of Bruno Hauptmann. During the trial, “[e]laborate telegraph equipment” was installed in the courtroom, with “sound and motion picture equipment . . . plainly visible in the [courtroom] balcony.” From 1935 on, broadcasting technology has been utilized in the courtroom to convey the inner workings of certain courts to the public, which has stimulated debate over whether the use of this technology is conducive to a fair trial under the Sixth and …

Taking The Gavel Away From The Executive Branch: The Indeterminate Sentencing Scheme Under S.B. 201 Is Ripe For Review And Unconstitutional, Jessica Crtalic

Cleveland State Law Review

In 2019, Senate Bill 201, also known as the Reagan Tokes Act, reintroduced an indeterminate sentencing scheme in Ohio whereby sentences are assigned in the form of a range. Under this sentencing scheme, the Ohio Department of Rehabilitation and Correction, through the parole board, has discretion to retain an inmate past the presumptive release date. This fails to afford the accused their guaranteed right to a jury trial, improperly places judiciary power in the hands of the executive branch, and scrutinizes the violation of due process such that the defendant is being denied a fair hearing and notice. Not only …