Courts Commons^™

A Comparative Approach To Counter-Terrorism Legislation And Legal Policy, Paul David Hill Jr

Senior Honors Theses

Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with …

The Impact Of Roe V. Wade (1973) On The American Abortion Rights Movement, Claire M. Adkins

Senior Honors Projects, 2010-2019

My research examines the impact of the Supreme Court case, Roe v. Wade (1973), on the American abortion rights movement during the 1970s. Previous research is divided on the extent of the Court’s influence on social movements and I seek to fill a gap in the previous literature. I conduct an in-depth document analysis to measure the Court’s effect on the abortion rights movement. Specifically, I examine abortion sections from the 1970s feminist publications, “Our Bodies Ourselves” and “off our backs,” to represent the American abortion rights movement. Both publications offer slightly different feminist perspectives with abortion rights advocacy and …

Foster V. Chatman: A Missed Opportunity For Batson And The Peremptory Challenge, Nancy Marder

All Faculty Scholarship

In 2016, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way …

The Replacements: Conflicting Standards For Obtaining New Counsel Under The Sixth Amendment, Sharon Finegan

Cleveland State Law Review

In 2006, the Supreme Court handed down a decision in United States v. Gonzalez-Lopez emphasizing the importance of a defendant’s right to counsel of choice under the Sixth Amendment and holding a denial of this right constitutes structural error, requiring automatic reversal. Following that decision, several federal circuit courts and state appellate courts have questioned how to apply this right to circumstances where the right to choice of counsel and the right to appointed counsel overlap. When a defendant seeks to replace retained counsel for appointed counsel, should the standard governing his motion fall under the right to choice of …

Different Voices : Measuring Female Judges' Influence On Women's Rights Issues In The U.S. Courts Of Appeal., Alyson E Hendricks

College of Arts & Sciences Senior Theses

Beginning with President Carter and continuing with each successive president, the federal bench has become more diverse. This has caused scholars to turn their attention to how personal characteristics such as race and sex affect judging. Understanding the effects of gender and race on judging is crucial because white female and minority female judges may bring a different perspective to the bench than their male counterparts due to their shared experiences with discrimination. To fill a gap in the literature, this study examines the impact of women in terms of legal influence and voting behavior. The results demonstrate that women …

The Empirics Of Child Custody, Margaret Ryznar

Cleveland State Law Review

Child custody issues are as American as apple pie, with only a quarter of children seeing their parents married until the end. The legal standard for custody is the best interests of the child, but the greyness of this inquiry allows courts to make difficult judgments. In family law, such discretionary standards govern factually diverse cases and make it difficult to draw conclusions from individual cases. This Article offers an objective measurement in family law by empirically examining a sample of Indiana divorce cases filed during three months in 2008 that involved children. The resulting analysis of child custody and …

Book Review: The Betrayal: The Nuremberg Trials And German Divergence, Anton Weiss-Wendt

Genocide Studies and Prevention: An International Journal

No abstract provided.

Factors In Fairness And Emotion In Online Case Resolution Systems, Youyang Hou, Cliff Lampe, Maximilian Bulinski, J. J. Prescott

Articles

Courts are increasingly adopting online information and communication technology, creating a need to consider the potential consequences of these tools for the justice system. Using survey responses from 209 litigants who had recently used an online case resolution system, we investigate factors that influenced litigants’ experiences of fairness and emotional feelings toward court officials. Our results show that ease of using the online case resolution system, the outcome of the case, and a litigant’s perceptions of procedural justice are positively associated both with whether the litigant views the process as fair and whether the litigant ultimately feels positive emotions toward …

Searching For Federal Judicial Power: Article Iii And The Foreign Intelligence Surveillance Court, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Chevron’S Pure Questions: Searching For Meaning In Ambiguity, Neal A. Hoopes

BYU Law Review

Since implied congressional intent is the basis for the Chevron doctrine, courts cannot simply presume that Congress intends all unclear statutes to signal deference to agencies. Instead, courts must make some inquiry into whether that rationale remains true under the particular circumstances. This Note contends, then, that the Chevron framework, from the outset, asks the wrong question. Instead of inquiring whether the statute is clear, courts should determine whether Congress intended courts to defer to an agency on the question of statutory interpretation. Instinctively deferring to an agency in the face of every ambiguity undermines congressional intent. While implied congressional …

Resurrecting Miranda's Right To Counsel, David Rossman

Faculty Scholarship

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they …

The Prophylactic Fifth Amendment, Tracey Maclin

Faculty Scholarship

Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Remedial Restraint In Administrative Law, Nicholas Bagley

Articles

When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly …

Jury Deliberation, Giuliana Pietrantoni

The Review: A Journal of Undergraduate Student Research

Juries are tasked with the duty of deliberating and applying the law to the case at hand. But it is unclear whether juries deliberate or deliberate well enough. Factors which may affect jury deliberation are the motivation of jurors, characteristics of jurors, emotions during and after trial, bargaining, charges, and dissenters. This paper argues that jurors do engage in rigorous dialogue which eventually results in compromises, although whether this creates an unjust verdict is unclear.

Female Autonomy: An Analysis Of Privacy And Equality Doctrine For Reproductive Rights, Elizabeth Levi

Political Science Honors Projects

What is the constitutional basis for women’s equality? Recently, scholars have suggested that as the right to privacy has floundered against the political undoing of women's access to abortion, equal protection arguments have grown stronger. This thesis investigates the feminist utility and limits of the equality and privacy arguments. Taking liberal feminism and feminist legal theory as analytical lenses, I offer interpretations of gender discrimination, reproductive rights, and marriage equality case law. By this framework, I argue that while an equality argument is less inherently oppressive towards women than the privacy doctrine, equality doctrine has been constructed thus far to …

Civil Justice Reform - An Idaho Imperative, Jim Jones

Concordia Law Review

No abstract provided.

Choosing Your Ground On The Endangered Species Act: How Do The Ninth, Tenth, And District Of Columbia Circuit Courts Of Appeal Evaluate Water Management Decisions Made By Federal Water Agencies?, Michael Kinsey

Pace Environmental Law Review

The purpose of this article is twofold. First, federal agencies are responsible for the development and implementation of ESA documents, and knowing what a court will look for and at when that document is challenged can help the agencies to develop a document that can better survive court review. Second, a plaintiff who challenges such a document can benefit from that same knowledge, by knowing which elements of the document to best challenge. The intent of this article is to provide practitioners, both agency and non-, with an introduction to that knowledge, to identify some of those difficulties, dangers, and …

The Missouri Student Transfer Program, Howard E. Fields Iii

Dissertations

In 1993, the state of Missouri passed the Outstanding Schools Act. This law was created as a means to ensure that “all children will have quality educational opportunities, regardless of where in Missouri they live.” Section 167.131 of this law states that an unaccredited district must pay the tuition and transportation cost for students who attend an accredited school in the same or adjoining district. This portion of the law became known as the Student Transfer Program.

The Riverview Gardens School District (RGSD) was one of three unaccredited school districts in the state of Missouri in 2013. With close to …

Supervised Release Sentences Of Child Pornography Offenders In U.S. District Courts: An Examination Of Disparity, Niquita Marie Loftis

Dissertations

The statutory supervised release sentencing range for child pornography offenders convicted in U.S. District Courts is five years to life. However, the guideline policy statement contained in the Federal Sentencing Guidelines recommends lifetime supervision for all child pornography offenders. U.S. Sentencing Commission (USSC) data for fiscal year 2012 indicate that only approximately 33% of child pornography offenders were sentenced to lifetime supervision. This variation suggests the possibility of unwarranted supervised release sentencing disparities. The dissertation explores this possibility by examining the effects of individual-level legal and extralegal factors and district-level contextual factors on supervised release sentences for child pornography offenders. …

Newsroom: Goldstein & Horwitz On 38 Studios Records 04-13-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Is It Safe To Speak Up Now? Evaluating The Expansion Of Whistleblower Protection Act Jurisdiction, Gil Landau

Journal of the National Association of Administrative Law Judiciary

Whistleblowers have uncovered billions of dollars of fraud and severe national security threats. Nonetheless, for many years, federal employee whistleblowers faced retaliation and termination. Congress passed the Whistleblower Protection Act (WPA) in an attempt to protect federal employee whistleblowers. But, the exclusive court for WPA appeals, the Federal Circuit, ignored Congressional intent and limited the WPA’s protections. In 2013, Congress responded by creating a five year experiment, known as “all circuit review,” to determine if WPA claims should also be appealable to the regional circuits. Over the past three years, all circuit review has led to modest changes in WPA …

Circuit Splits

Seton Hall Circuit Review

No abstract provided.

First Impressions

Seton Hall Circuit Review

No abstract provided.

May It Please The Court?: The Perils Of Correcting A Justice's Pronunciation, James J. Duane

Seton Hall Circuit Review

No abstract provided.

Parental Blame Frame: An Empirical Examination Of The Media's Portrayal Of Parents And Their Delinquent Juveniles, Ashley Wellman, Eve Brank, Katherine Hazen

Center on Children, Families, and the Law: Faculty Publications

The most recent study discussed in this article examines how the media report issues of parental responsibility and blame regarding acts of juvenile delinquency. To accomplish this goal, we examined the frequency, context, and framing of parental responsibility in local and national print media via two content analyses. The results demonstrate that national media sources depict the notion of parental responsibility, whereas local media stories rarely mention parents. The national stories offer distant, more global statements of parental responsibility, while the local, specific stories tend to avoid any parental blame. The findings in this paper mirror public opinion polls that …

Pushing The Envelope: Application Of Guiding Cases In Chinese Courts And Development Of Case Law In China, Mo Zhang

Washington International Law Journal

The modern Chinese legal system has at least two notable features. First, bearing the civil law tradition, Chinese courts do not follow precedent. Second, under the people’s congress system, the Chinese judiciary has no power to make law. In recent years, however, the Supreme People’s Court of China began building a guiding case system in the Chinese judiciary. The application of guiding cases implicates (a) an expansion of the power of the Chinese judiciary into the field of law-making; and (b) development of case law in China. Chinese guiding cases differ from the common law cases in many aspects, and …

Substantial Similarity: Kohus Got It Right, Gabriel Godoy-Dalmau

Michigan Business & Entrepreneurial Law Review

This Note is organized as follows. Part I discusses the historical development of the substantial similarity inquiry and its role in a Plaintiff’s prima facie case of copyright infringement. Part II evaluates more recent developments in the substantial similarity inquiry. Part III argues that the various standards that lower courts have developed are themselves substantially similar to each other. This analysis is in line with the Sixth Circuit’s decision in Kohus. Although largely ignored by the scholarly community, the Sixth Circuit’s decision in Kohus got it right.

Erisa Preemption After Gobeille V. Liberty Mutual: Completing The Retrenchment Of Shaw, Edward A. Zelinsky

Articles

Gobeille v. Liberty Mutual Insurance Co. is the U.S. Supreme Court’s most recent preemption decision under the Employee Retirement Income Security Act of 1974 (ERISA). In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court’s literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc. Gobeille consummated this reconciliation by confirming the sub silentio retrenchment of Shaw and its “plain language” approach in favor of Traveler’s broader construction of ERISA preemption. …

Jewish Honor Courts: Revenge, Retribution, And Reconciliation In Europe And Israel After The Holocaust, David Abraham

Articles

No abstract provided.