Courts Commons^™

Revisiting And Confronting The Federal Judiciary Capacity "Crisis": Charting A Path For Federal Judiciary Reform, Ryan Vacca, Peter S. Menell

Faculty Publications

The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next seventy years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid- 1960s, jurists, scholars, practitioners, and policy-makers had voiced grave concerns about the capacity of the federal system to function effectively in the face of ever-increasing caseloads.

Heeding calls for reform, in 1972 Congress charged a commission chaired by Senator Roman Hruska to study the functioning of the federal courts and recommend reforms. After extensive study, the Hruska …

Fixing The Problem Of Incompetent Defense Counsel Before The International Criminal Court, Matthew Catallo

Michigan Journal of International Law

Throughout the latter half of the twentieth-century, defense counsel arguing before international criminal tribunals provided notoriously ineffective assistance. This note examines whether defense counsel similarly fail to provide competent assistance at the International Criminal Court––and if they do so for similar reasons. In examining the ICC’s procedural and regulatory framework, this note highlights the systemic inequities at the Court that favor the prosecution and devalue the defense, thereby hindering the acquisition of competent defense counsel and promoting the retention of incompetent defense counsel.

To address these iniquities, this note promotes various administrative reforms, all of which could be implemented without …

What Probate Courts Cite: Lessons From The New York County Surrogate’S Court 2017-2018, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

By knowing what a judge cites, one may better understand what the judge believes is important, how the judge understands her work will be used, and how the judge conceives of the judicial role. Empirical scholars have devoted serious attention to the citation practices and patterns of the Supreme Court of the United States, the United States Courts of Appeals, and multiple state supreme courts. Remarkably little is known about what probate courts cite. This Article makes three principal claims — one empirical, one interpretative, and one normative. This Article demonstrates through data, derived from a study of all decrees …

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

St. Mary's Law Journal

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

Reflections On The Influence Of Social Media On Judging, Peter D. Lauwers Justice

Canadian Journal of Law and Technology

This essay examines the influence of social media on judging. While the ethical implications of judges’ engagement in social media have received some scholarly attention, the actual influence of social media on judging has not.1 But it is possible to make some useful observations that might at once seem obvious and disquieting.

This essay is divided into four parts. Part 1 describes the normative judicial disposition. Part 2 examines the psychology of judging. Part 3 asks what could go wrong with the judicial use of social media. Part 4 describes a stance judges might take towards social media.

Violating The Inviolate?: Divided Tennessee Supreme Court Upholds Constitutionality Of Noneconomic Damage Caps, Focuses On Right To Jury Trial, Bailey D. Barnes

Faculty Publications

On Feb. 26, in McClay v. Airport Management Services LLC, the Tennessee Supreme Court upheld the constitutionality of the noneconomic damage cap provisions of the Tennessee Civil Justice Act of 2011. The court’s analysis primarily centered on the constitutional right to a trial by jury. The justices split on whether the General Assembly maintains the authority to alter or abridge the state’s common law when doing so affects a constitutional right.

The three-justice majority concluded that noneconomic damage caps do not violate the right to a jury trial, though one of those justices authored a concurring opinion declaring the issue …

Constitutionalism And Africa's Agenda 2063: How To Build "The Africa We Want", John Mukum Mbaku

Brooklyn Journal of International Law

In 2013, Africans, under the leadership of the African Union, set out to develop a “strategic framework for the socio-economic transformation of the continent over the next 50 years.” This new development program was expected to “accelerate the implementation of past and existing continental initiatives for growth and sustainable development.” This transformative program, called Agenda 2063: The Africa We Want, was officially adopted by the Assembly of Heads of State and Government of the African Union in Addis Ababa, Ethiopia in January 2015. The heart of this ambitious development initiative are seven aspirations, which Africans hope to achieve by the …

The Case For A Federal Criminal Court System (And Sentencing Reform), Christopher Slobogin

Vanderbilt Law School Faculty Publications

In their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. As they depict it, justice in the federal courts is either delayed or denied, disparity in legal outcomes among circuits is increasing, and the Supreme Court is falling farther and farther behind in resolving circuit splits. While these problems have been around for a while, Menell and Vacca argue they are getting worse and will only continue to worsen if radical action is not taken. Their article provides enough of a factual record to …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 06-2020, Roger Williams University School Of Law, Michael M. Bowden, Katie Mulvaney

Life of the Law School (1993- )

No abstract provided.

A Balanced Consideration Of The Federal Circuit’S Choice-Of-Law Rule, Jennifer E. Sturiale

Utah Law Review

The Federal Circuit’s jurisdiction is unique. Unlike the jurisdiction of all other U.S. courts of appeals, the Federal Circuit’s jurisdiction is defined not by its geographical boundaries, but rather by the subject matter of the original claims and compulsory counterclaims. The court has appellate jurisdiction over final decisions from all U.S. district courts if a plaintiff’s claim or a party’s counterclaim arises under the patent laws. From this unusual jurisdictional grant, the Federal Circuit has concluded that, as a policy matter, it should apply and develop its own law only if the legal issue pertains to patent law. For all …

Danse Macabre: Temporalities Of Law In The Visual Arts, Jeanne L. Schroeder

Articles

In Danse Macabre: Temporalities of Law in the Visual Arts, Desmond Manderson delves the visual arts for insights into jurisprudence and legal practice. The book is a tour de force. Observing that just as art always fails to capture the image of justice, justice also always escapes positive law, Manderson claims, "We cannot paint the present; nor can we write the present law. . . . painting and lawmaking are always behind the times, late for their rendezvous with a world that has turned without them. . . . they strive to shape a future that they will never live …

Judicial Precedent In Emerging Constitutional Jurisdictions: Formulating A Doctrine Of Constitutional Stare Decisis For Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

Judicial precedents in constitutional law raiseunique stare decisis considerations. While they are authoritative pronouncementson the proper interpretation of the Constitution and are thus an essentialcomponent of constitutional law, they are also merely judicial precedents – andthus susceptible to being overturned. These considerations have been thesubject of a well-developed body of literature, especially in the context of USSupreme Court constitutional precedents.Yet, despite being a constitutional supremacy, little attention has beenpaid in Singapore to the question of the proper judicial approach towardsconstitutional precedents. This paper aims to address this issue. It will discernthe de facto principles that Singapore judges have thus far …

Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae C. Quinn, Grace R. Mclaughlin

Washington and Lee Journal of Civil Rights and Social Justice

There is no federal juvenile court system in the United States. Rather, teens can face charges in Article III courts and can be transferred to be tried and sentenced as adults in these venues. This Article is the first of two articles in the Washington and Lee Journal of Civil Rights and Social Justice seeking to shed light on the largely invisible processes and populations involved in federal youth prosecution. This Article focuses on the federal transfer and prosecution of American youth as adults. It considers constitutional and statutory law relating to these federal transfers and then considers why current …

School To Students: Post That, And You Won't Play, Ashley Waddoups

BYU Law Review

No abstract provided.

The Right To A Public Trial In The Time Of Covid-19, Stephen E. Smith

Washington and Lee Law Review Online

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific …

Law School News: The Honorable Margaret H. Marshall: Doctor Of Laws, Honoris Causa 05-10-2020, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Justice Diseased Is Justice Denied: Coronavirus, Court Closures, And Criminal Trials, Ryan Shymansky

West Virginia Law Review Online

This Article aims to consider the immediate impacts of the novel coronavirus on criminal defendants’ access to speedy trials by jury. In particular, it aims to examine whether court closures and delays could affect the substantive rights of criminal defendants—and particularly pretrial detainees—to a speedy and public trial by jury. To date, very little scholarship has considered this question. Yet the ideal of a speedy trial by jury is deeply embedded in our Constitution and our judicial system, and the potential for a pandemic to limit or negate that right should ring scholastic and judicial alarm bells.

This analysis proceeds …

Models Of Pre-Promulgation Review Of Legislation, Rachel Myers

Indiana Journal of Constitutional Design

Pre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review …

The Death Of The Autonomous Venezuelan Judiciary, Amid Bennaim

University of Miami Inter-American Law Review

Access to impartial and effective courts is the cornerstone of democratic civil society. When the intention of political actors is to extinguish democratic civil society, they often wear away at the autonomy of the judiciary. International law and the constitutions of many states throughout the world guarantee access to autonomous courts. Despite having such guarantees in place, the government of the Bolivarian Republic of Venezuela has consistently attacked the judiciary in order to erode its autonomy and bring it under political control. Strategies used to achieve that goal include purging judges, intimidating them, and preventing judges from getting tenure. As …

Law School News: Olin W. Thompson, Iii: Doctor Of Laws, Honoris Causa 05-08-2020, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Cryptocurrencies' Revolt Against The Bsa: Why The Supreme Court Should Hold That The Bank Secrecy Act Violates The Fourth Amendment, Jeremy Ciarabellini

Seattle Journal of Technology, Environmental, & Innovation Law

The Bank Secrecy Act (BSA) creates a Hobson’s choice: one must either struggle to function in modern society without a bank account or submit to financial surveillance by the government. Both choices result in drastic consequences.

Digital Court Records Access: Social Justice And Judicial Balancing, Peter J. Guffin

Maine Law Review

With its transition from paper to electronic records, the state court system in Maine is entering new, uncharted territory. In drafting rules regarding public access to electronic court records, a critical issue facing the court system is how to go about balancing the privacy interests of the individual and the state’s interest in providing transparency about the court’s operations. Both interests are important in our democracy, and it is critical that we take measures to preserve both. The purpose of writing this essay is to show that Judge Coffin’s judicial philosophy and rights-sensitive balancing process, although the product of a …

Drug Courts And The Following Of The Federal Guidelines, Charles James Souza

Master’s Theses and Projects

During the 1980’s, drug offense were running high within the United States. The court system along with the police and other fields were forced to form other methods of dealing with offenders who have a substance abuse problem. In 1989, the first drug court in the United States was formed in the state if Florida. The idea was to create a therapeutic method to help those who are committing non-violent criminal acts due to their addiction. The goal of drug court was to get offenders the treatment they needed so they would not resort to criminal activity. Drug court personal …

Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman

Notre Dame Law Review

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the genesis and development …

Lessons Learned, Lessons Offered: Creating A Domestic Violence Drug Court, Judge Rosie Speedlin Gonzalez, Dr. Stacy Speedlin Gonzalez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Can We Have Our Cake And Eat It Too?: What Masterpiece Cakeshop And Religious Refusals Mean For Texas’S Adoption Bill, Nadeen Abou-Hossa

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Daniel Mwale V Njolomole Mtonga And Another Appeal No.004 (2019), Dunia P. Zongwe

SAIPAR Case Review

This is a classic case of sour grapes. After failing to secure a favourable decision from the judges, the losing party accused them of prejudice. This happened in the Mwale v Mtonga matter, decided by the Supreme Court of Zambia in 2019. When his appeal failed, Daniel Mwale reacted by accusing that court and the entire judiciary of corruption.

The Mwale v Mtonga dispute brings up a number of themes: perceptions of corruption in the courts, unjustified public attacks against the judiciary, constraints on judges’ ability to respond to those attacks, the airing of corruption allegations in the wrong forum, …

Abedinego Kapeshi And Another V The People Scz Selected Judgment No. 35 Of 2017, Gift Sangende

SAIPAR Case Review

In 2017, the appellants, being dissatisfied with the judgment of the Kabwe High Court appealed to the Supreme Court. They contended among other things, that the trial court erred in law to convict the appellants of murder. They further stated that the court erred in law to sentence the appellants to life imprisonment, as the sentence was excessive.

This case accorded the Supreme Court a great opportunity to discuss the belief in witchcraft and the offending conduct premised on that belief, as well as the multiple violations that are coupled with the same belief. Remarkably, the Court moved away from …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Acknowledgements, Ashley R. Phillips

University of Richmond Law Review

Volume 54 of the University of Richmond Law Review quite possibly had an academic journey unlike any other. Who could have predicted as we said our goodbyes for spring break, it would be the last time we would work together in person? Volume 54 gave so much to have nearly everything taken by the COVID-19 pandemic. On September 20, 2020, I write these Acknowledgments-four months after the original May Book publication date-to those Law Review members I never had the chance to thank.