Courts Commons^™

Vacatur Pending En Banc Review, Ruby Emberling

Michigan Law Review

When a case becomes moot on appeal, as when the parties settle, two primary Supreme Court cases guide the appellate court’s decision about whether to vacate the lower-court opinion. The Court has said that vacatur, an equitable remedy, promotes fairness to parties who were not responsible for the mootness because it erases adverse legal outcomes the litigants were prevented from appealing. Beyond this, vacatur is inadvisable since it eliminates precedential decisions and harms the judiciary’s efficiency and legitimacy. Yet this doctrinal order has not been uniformly brought to bear on the highly similar question of whether to vacate when a …

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

Supreme Court Institute Annual Report, 2020-2021, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2020—corresponding to the 2020-2021 academic year— the Supreme Court Institute (SCI) provided moot courts for advocates in 57 of the 58 cases argued at the Supreme Court, offered our annual press and student term preview programs, and continued to integrate the moot court program into the Law Center curriculum. As in past Terms, the varied affiliations of advocates mooted reflect SCI’s commitment to assist advocates without regard to the party represented or the position advanced.

Responding to the COVID-19 pandemic, the Supreme Court took the unprecedented step of hosting all OT 2020 …

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, John A. Meiser, Steven A. Engel, Michael H. Mcginley, Eric D. Hageman, Justin M. Romeo, Lincoln Davis Wilson

Court Briefs

No. 20-1800
Harold Shurtleff v. City of Boston

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

From the Summary of Argument

Invoking the specious rationale of “government speech,” the City of Boston unconstitutionally singled out religious expression for hostile treatment. By lumping speech based on “religion” together with speech deemed “inappropriate,” “offensive,” “discrimin[atory],” or “prejudice[d],” Pet.App.20, the City adopted the increasingly common view that promoting our Nation’s vibrant pluralism requires the exclusion of religious perspectives from the public square. But that view is antithetical to the Founders’ conception of religion as central—not peripheral—to …

Survey Of State Laws Governing Continuances And Stays In Eviction Proceedings, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Survey contains both a cumulative and detailed account of the laws and rules of each state governing continuances, adjournments, and stays in residential eviction proceedings. The Survey compares the laws of each state on several aspects, including the standard for obtaining a continuance, the allowable length of the continuance, whether a bond must be paid, and any other restriction or limitation placed on the party seeking to continue an eviction proceeding. The Survey also includes a listing of state statutes that provide a residential tenant a right to redeem the property upon payment of rent prior to the execution …

Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso

St. Mary's Law Journal

Abstract forthcoming.

The Washington Post Interviews Vinay Harpalani: The Courts Have Served As An Anti-Democratic Force For Much Of U.S. History, Vinay Harpalani, David A. Love

Faculty Scholarship

Certainly there are examples in which the high court has upheld the rights of the marginalized and disadvantaged. However, as Vinay Harpalani, associate professor of law at the University of New Mexico, has noted, “even when the U.S. Supreme Court makes rulings that seem to favor people of color, those rulings usually serve the interests of wealthy, elite White Americans.”

Harpalani cited how the Brown decision stemmed in part from Cold War strategy and the need for the United States to appeal to people in African, Asian and Latin American countries. “Racial segregation at home did not bode well …

Advocates Say Isds Is Necessary Because Domestic Courts Are ‘Inadequate,’ But Claims And Decisions Don’T Reveal Systemic Failings, Maria Rocha, Martin Dietrich Brauch, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

Proponents of including investor-state dispute settlement (ISDS) provisions in treaties, contracts, and even national laws argue that ISDS is necessary because domestic courts are “inadequate.” Without this mechanism, foreign investors would be dependent on domestic courts and administrative mechanisms, which, proponents claim, are often inefficient, slow, biased, corrupt, and lacking in international law expertise, especially in developing countries. As one insight to analyze the “inadequate courts” argument, CCSI has examined treaty-based ISDS cases in which investors complained of domestic court proceedings or decisions, including the specific complaints and the tribunals’ analysis of those claims.

Guardall Security Group Limited V. Reinford Kabwe Caz Appeal No. 44/2019, Chanda Chungu

SAIPAR Case Review

The Court of Appeal dealt with a judgment of the Industrial Relations Division of the High Court which was passed more than one year after the matter was commenced. The Court of Appeal interpreted sections 85(3)(b) (ii) and 94 (1) of the Industrial and Labour Relations Act which prescribe that judgment should be within one (1) year of the filing of the complaint and sixty (60) days from close of trial.

Table Of Contents

University of Richmond Law Review

No abstract provided.

Thank You Glenice

University of Richmond Law Review

No abstract provided.

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This Article analyzes the past year of Supreme Court of Virginia opinions, revisions to the Virginia Code, and Rules of the Supreme Court of Virginia impacting civil procedure here in the Commonwealth. On top of those changes, dealing with the pandemic certainly was a trying time for practitioners, the judiciary, and all those involved in the administration of justice and the law. The author appreciates the sacrifices made by all those individuals and sympathizes with all who lost a loved one in this time.

The Article first addresses opinions of the Supreme Court of Virginia, then new legislation enacted during …

Criminal Law And Procedure, Brittany A. Dunn-Pirio, Timothy J. Huffstutter, Mason D. Williams

University of Richmond Law Review

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant published appellate decisions and legislation.

Family Law, Rachel A. Degraba

University of Richmond Law Review

This Article provides a practical update on recent changes in Virginia law in the family law realm, including, but not limited to, divorce, custody and visitation, adoption, child support, and equitable distribution of assets and debts. There have been significant legislative amendments regarding the divorce process with the introduction of the Uniform Collaborative Law Act as well as the removal of the corroborating witness requirement for no-fault divorce matters. This succinct synopsis outlines legislative changes as well as significant judicial decisions within the past year.

Taxation, Craig D. Bell

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (“Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year.

Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, and discrete local taxes.

The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia …

Juvenile Justice, Valerie Slater

University of Richmond Law Review

This Article serves as a review of recent juvenile justice law and legislative trends in Virginia. This Article will review both codified changes and relevant proposed legislation that did not pass the Legislature to more fully identify trends in juvenile justice. While this Article does not capture every proposed or codified change to Virginia juvenile justice law, it does identify and present the most significant changes and trends over the last two legislative sessions to the laws governing the entrance of youth into the criminal legal system, the treatment of Virginia’s youth directly involved in the criminal legal system, and …

Strictly Speaking, What Needs To Change? A Review Of How Statutory Changes Could Bring Strict Products Liability To Virginia, Ryan C. Fowle

University of Richmond Law Review

Virginia remains one of five states that refuse to adopt strict products liability. To date, the Supreme Court of Virginia has declined to follow the path Justice Traynor set out nearly a century ago, as its recent decisions confirm its resistance to strict liability. However, given the change in control of the General Assembly following the elections of 2017 and 2019, the General Assembly is in new hands and may remain that way for some time. This new legislative majority, among its plans for new policies, may soon consider establishing strict products liability by statute. In doing so, Virginia would …

Disrupting Death: How Specialized Capital Defenders Ground Virginia’S Machinery Of Death To A Halt, Corinna Barrett Lain, Douglas A. Ramseur

University of Richmond Law Review

Virginia’s repeal of capital punishment in 2021 is arguably the most momentous abolitionist event since 1972, when the United States Supreme Court invalidated capital punishment statutes nationwide. In part, Virginia’s repeal is momentous because it marks the first time a Southern state abolished the death penalty. In part, it is momentous because even among Southern states, Virginia was exceptional in its zeal for capital punishment. No state executed faster once a death sentence was handed down. And no state was more successful in defending death sentences, allowing Virginia to convert death sentences into executions at a higher rate than any …

Wills, Trusts, And Estates, Katherine E. Ramsey, Sarah J. Brownlow

University of Richmond Law Review

The 2021 Virginia General Assembly did not pass any major laws governing estates or trusts this year. However, it did pass several legislative efforts related to the field and of which practitioners should be aware. Perhaps the most relevant update given the COVID-19 pandemic was the Legislature’s effort to modernize procedures for electronic notarizations and electronic recording of documents. Another new law was designed to improve retirement savings participation rates in the Commonwealth by requiring certain employers to enroll their employees by default in a new, state-facilitated individual retirement account program. The Legislature also passed several bills designed to make …

The Jury Trial Reinvented, Christopher Robertson, Michael Elias Shammas

Texas A&M Law Review

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.

Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin …

Foreword, Joseph Giarratano

University of Richmond Law Review

No abstract provided.

In Memoriam Clint Andrew Nichols, Frank Talbott V

University of Richmond Law Review

No abstract provided.

Preface, Andy V. O'Connell

University of Richmond Law Review

No abstract provided.

To Remove Or Not To Remove - Is That The Question In 1933 Act Securities Cases?, Tanya Pierce

Faculty Scholarship

Litigants spend immense time and money fighting over procedure. That fact is especially true for procedural rules concerning where a case may be heard—which, in the context of class actions, can determine the viability of claims almost regardless of their underlying merit. The potential for class certification, which tends to be greater in state than in federal courts, can transform claims that alone are too small to even justify suing into threats so large that defendants routinely use the words “judicial blackmail” to describe them. This paper focuses on a growing conflict between federal statutory removal provisions that arises in …

Many Minds, Many Mdl Judges, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

My focus here is on a cost that has been surprisingly neglected by scholars but may be the greatest cost of them all: the accurate adjudication of legal claims and defenses. I suspect it is intuitive to most of us that asking one person to decide something instead of inviting many other people to weigh in probably reduces the quality of the resulting decision. There is a literature that formalizes this intuition called "many-minds" scholarship. It proceeds from a famous mathematics proof known as the Condorcet Jury Theorem. Although some people have questioned the applicability of many-minds theories to legal …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Scholarship

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion—in legalese, Section 1983’s nonabrogation of sovereign immunity—along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983’s enactment, the caselaw …

Social Norms In Fourth Amendment Law, Matthew Tokson, Ari Ezra Waldman

Michigan Law Review

Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.

Courts assessing social norms generally adopt what we call the closure principle, or the idea that …

Weaponizing En Banc, Neal Devins, Allison Orr Larsen

Faculty Publications

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …

Chief Justice John Roberts: Institutionalist Or Hubris-In-Chief?, Eric J. Segall

Washington and Lee Law Review Online

The conventional wisdom among Supreme Court scholars and commentators is that Chief Justice John Roberts is an institutionalist who cares deeply about both his personal legacy and the Supreme Court’s prestige over time. This essay challenges that belief. While the Chief certainly cares about how the Court is perceived by the public, as do most of the justices, what most defines Roberts is his hubris—not a concern for the Court’s legitimacy or even his own place in history. Across the vast landscape of constitutional law, Roberts has distorted precedent and ignored text and history to further his own policy preferences. …

The Rooker-Feldman Doctrine: The Case For Putting It To Work, Not To Rest, Bradford Higdon

University of Cincinnati Law Review

No abstract provided.