Courts Commons^™

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

A Crackerjack Of A Sea Yarn: The Triumphs, Tributes And Trials Of Treasure Hunter Tommy Thompson, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley

Faculty Scholarship

No abstract provided.

For Shame: When High-Profile Shaming Is The Only Way To Get Things Discussed And Done, Kerri Lynn Stone

Faculty Publications

In recent years, the sports world has experienced a complex relationship with sex discrimination and bullying. On one hand, well-publicized incidents of bullying, domestic violence, discrimination, and abuse have operated to alienate players, teams, and leagues from many of their fans. In some cases, these incidents have even led to rehabilitative public relations campaigns to combat the damage done to their public image. On the other hand, the fact that so many high profile incidents have occurred in such a public, much-talked-about sphere has actually served to aerate and vet issues in the court of popular opinion that would otherwise …

Foreword: The Supreme Court's Estate Planning Jurisprudence, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Sophisticated trust and estate counsel must keep up with near-daily developments in the substantive state law of wills, trusts and estates, as well as state and federal laws of wealth transfer taxation. Because of the sheer volume of statutory law and administrative regulations that estate planners must master, it is easy to lose sight of the important role that federal courts play in shaping the field of estate planning. Federal tax cases are routinely heard by the United States Tax Court, the Federal District Courts, the Court of Federal Claims and appellate courts in all circuits. Yet very few tax …

What If?: Human Experience And Supreme Court Decision Making On Criminal Justice, Christopher E. Smith

Marquette Law Review

None

Out Of Cite, Out Of Mind: Navigating The Labyrinth That Is State Appellate Courts' Unpublished Opinion Practices, Lauren S. Wood

University of Baltimore Law Review

Imagine that you are an attorney, litigating an appellate case with an atypical fact pattern. You are familiar with the law; however, its application to your client's circumstances is entirely unclear. After endless hours of research, you finally find it: a factually apposite case with a favorable outcome. Elated, you grab your legal pad to scribble down the case citation. But then you see it-that dreaded text at the top of the opinion: "NOT SELECTED FOR PUBLICATION." This is an unpublished opinion. Perturbed and exhausted, your mind starts racing: "What's that rule again? Can I use this? I think that …

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …

Jurisdiction, Foundations, Ralf Michaels

Faculty Scholarship

No abstract provided.

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.

Second Amendment Traditionalism And Desuetude, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg

Faculty Scholarship

The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of Justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique dataset of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the Justices …

Courts Of Good And Ill Repute: Garoupa And Ginsburg’S Judicial Reputation: A Comparative Theory, Tracey E. George, G. Mitu Gulati

Faculty Scholarship

Nuno Garoupa and Tom Ginsburg have published an ambitious book that seeks to account for the great diversity of judicial systems based, in part, on how courts are designed to marshal the power of a high public opinion of the judiciary. Judges, the book posits, care deeply about their reputations both inside and outside the courts. Courts are designed to capitalize on judges’ desire to maximize their reputation, and judges’ existing stock of reputation can affect the design of the courts which they serve. We find much to like in this book, ranging from its intriguing and ambitious positive claims …

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

Regional International Criminal Courts: An Idea Whose Time Has Come?, Firew Kebede Tiba

Cardozo Journal of Conflict Resolution

Regionalism in international relations is a fact of life. Regional judicial implementation of international norms is relatively common in the fields of international human rights, international investment, and trade laws. There are attempts to break ground in the realm of international criminal law by creating a regional international criminal court, such as the proposed addition of the criminal jurisdiction to the African Court of Justice and Human Rights. Although there was momentum in creating a universal permanent international criminal court, the enthusiasm for the tribunal's exercise of jurisdiction has not continued. The International Criminal Court ("ICC") will remain short of …

In Loco Juvenile Justice: Minors In Munis, Cash From Kids, And Adolescent Pro Se Advocacy - Ferguson And Beyond, Mae Quinn

Journal Articles

No abstract provided.

Chaining Kids To The Ever Turning Wheel: Other Contemporary Costs Of Juvenile Court Involvement, Candace Johnson, Mae Quinn

Journal Articles

In this essay, Candace Johnson and Mae Quinn respond to Tamar Birckhead’s important article The New Peonage, based, in part, on their work and experience representing youth in St. Louis, Missouri. They concur with Professor Birckhead’s conclusions about the unfortunate state of affairs in 21st century America— that we use fines, fees, and other prosecution practices to continue to unjustly punish poverty and oppressively regulate racial minorities. Such contemporary processes are far too reminiscent of historic convict leasing and Jim Crow era efforts intended to perpetuate second-class citizenship for persons of color. Johnson and Quinn add to Professor Birckhead’s critique …

Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino

Michigan Law Review

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …

The Human Rights Of Sea Pirates: Will The European Court Of Human Rights Decisions Get More Killed?, Barry Hart Dubner, Brian Othero

Faculty Scholarship

No abstract provided.

Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Leonard Niehoff, Ashley Messenger

University of Michigan Journal of Law Reform

In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to …

No More Quid Pro Quo: Abandoning The Personal Benefit Requirement In Insider Trading Law, Shannon Seiferth

University of Michigan Journal of Law Reform

A circuit split between the Second Circuit’s 2014 decision, United States v. Newman, and the Ninth Circuit’s 2015 decision, United States v. Salman, illustrates problems in insider trading law dating back over thirty years to the Supreme Court’s decision in Dirks v. SEC. Dirks held that when a corporate insider provides information to an outside party who then trades on the information, it must be shown that the insider received some form of a personal benefit for providing the information in order to impute liability. The courts in Newman and Salman disagreed on the sort of evidence …

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

Judge Shopping In The Eastern District Of Texas, Jonas Anderson

Utah Law Faculty Scholarship

Judge Rodney Gilstrap has a lot of patent cases on his docket. In fact, in 2015 there were 1,686 patent cases that were filed and assigned to Judge Gilstrap, an astronomical number for a single judge. Judge Gilstrap — one of eight federal judges who sit on the Eastern District of Texas — is so popular with patent plaintiffs that over one-fourth of all patent cases in the country are heard by him. This Article addresses the problems with allowing this judge shopping to occur. It reviews the scholarship on the topic that is almost universally opposed to judge shopping …

‘By The Court’: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick

Osgoode Legal Studies Research Paper Series

The Supreme Court of Canada has for several decades used an anonymous and unanimous decision format – ‘By the Court’ – for a subset of its constitutional decisions; although some of the specific cases (such as the Quebec Secession Reference) have been closely examined, the practice itself has never received focused consideration. This article establishes a chronology, an inventory, and a typology for the Supreme Court’s ‘By the Court’ judgments, and concludes by suggesting that it use has become more frequent under the current Chief Justice.

Issue Preclusion: The Effect B&B Hardware Will Have On Trademark Litigation, 15 J. Marshall Rev. Intell. Prop. L. 257 (2016), Lian Osier

UIC Review of Intellectual Property Law

Trademark issues are frequently litigated in the United States Patent and Trademark Office, yet circuits were previously divided on how much weight to give those decisions. The Supreme Court provided the answer. B&B Hardware v. Hargis Indus. held that in certain circumstances, the Trademark Trial and Appeal Board will have a preclusive effect on federal district courts. This comment looks at what effect this ruling will have on trademark litigation in district courts by examining the cases that caused the circuit split leading up to the Supreme Court’s decision.

The Development Of Legal Rights In The American Legal System, Roberto Rosas

Faculty Articles

This article takes a snapshot of some of the most controversial topics in American society today and the juridical response to these topics by individual states, the United States Congress, and the United States Supreme Court. Although there are numerous legal topics that deserve mention and analysis, this article is limited to the discussion of nine fairly new rights created by state and federal laws. The rights discussed in this article include the following: 1) The right to open carry a firearm; 2) The right to consume marijuana; 3) The right to marry or to civil unions between same-sex couples; …

“Ev’Ry American Experiment Sets A Precedent”: Why One Florida State Court’S Bitcoin Opinion Is Everyone’S Business, Allison Caffarone, Meg Holzer

Scholarly Works

Part I of this article seeks to explain in largely non-technical terms the design of the Bitcoin network. Part II explains the guidance and administrative rulings provided by the United States Department of the Treasury's Financial Crimes Enforcement Network in relation to the issues in the Espinoza case. Additionally, Part II surveys different approaches taken by state legislatures and regulators in seeking to address decentralized virtual currencies, including bitcoin. Careful attention is paid to how the terms "monetary value" and "virtual currency" are defined, and how those definitions have been interpreted. Part II further explores the differences in the way …