Courts Commons^™

Expert Prevalence, Persuasion And Price: What Trial Participants Really Think About Experts, Andrew W. Jurs

Indiana Law Journal

By measuring how expert witnesses are actually used in court, this study offers important new data about what makes expert effective and suggests that some commonly held beliefs about experts are misguided. In doing so, the data establishes an important new baseline for measuring expert witnesses in court, updating and expanding on prior research in the field.

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Institutional Competence And Civil Rules Interpretation, Lumen N. Mulligan, Glen Staszewski

Faculty Works

No abstract provided.

Chipping Away At The Rock: Perez V. Mortgage Bankers Association And The Seminole Rock Deference Doctrine, Kevin O. Leske

Loyola of Los Angeles Law Review

Largely escaping judicial and scholarly examination for close to seventy years, the Seminole Rock deference doctrine directs federal courts to defer to an administrative agency’s interpretation of its own regulation unless such interpretation “is plainly erroneous or inconsistent with the regulation.” But at long last the United States Supreme Court is poised to re-evaluate the doctrine.

In March 2015, in Perez v. Mortgage Bankers Association, the Court addressed whether a federal agency was required to follow the notice-and-comment procedures of the Administrative Procedure Act after it changed a prior interpretation of its regulation under the “Paralyzed Veterans doctrine.” Although …

Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …

Minimizing Probate-Error Risk, Mark Glover

University of Michigan Journal of Law Reform

Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been …

Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly

University of Michigan Journal of Law Reform

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. …

Finality And Judicial Review Under The Immigration And Nationality Act: A Jurisprudential Review And Proposal For Reform, Jesi J. Carlson, Patrick J. Glen, Kohsei Ugumori

University of Michigan Journal of Law Reform

Under the Immigration and Nationality Act (INA), aliens may petition for judicial review of an adverse decision of the Board of Immigration Appeals (Board) as long as that decision constitutes a “final order of removal.” Usually it is not difficult to ascertain when an alien should file her petition: the thirty-day statutory filing deadline begins to run when the Board issues a decision that affirms the immigration judge’s removal order in its entirety. In some cases, however, an alien seeks multiple forms of relief from removal in a single proceeding. When that occurs, some forms of relief might be granted, …

Reversal By Recusal? Comer V. Murphy Oil U.S.A., Inc. And The Needfor Mandatory Judicial Recusal Statements, Patrick A. Woods

The University of New Hampshire Law Review

[Excerpt] "In many cases, if not most, voluntary judicial recusal is both an efficient use of judicial resources and an exceptional safeguard to the legitimacy of the federal judiciary. However, voluntary judicial recusal poses its own unique problems when the withdrawing judge declines to issue a statement explaining the statutory grounds for his or her recusal. Unlike when a party seeks to disqualify a judge by motion—where the reasons for recusal will, at a minimum, be set out in the motion papers—when a judge voluntarily recuses, there is not necessarily any record created as to the reasons for the recusal. …

A 21st Century Approach To Personal Jurisdiction, Robert E. Pfeffer

The University of New Hampshire Law Review

[Excerpt] "Personal jurisdiction doctrine plays a major role in many civil disputes in the United States. When the defendant resides in, is incorporated or headquartered in (in the case of a corporation or other business), or is otherwise found in the particular state where suit is brought, personal jurisdiction generally is found to exist and is unproblematic. Major personal jurisdiction issues usually arise when a plaintiff sues the defendant in a state other than the one in which the defendant is located.

In many cases involving parties located in different states, where a suit takes place is as extensively litigated …

Integrating Mindfulness Theory And Practice Into Trial Advocacy, David M. Zlotnick

Richmond Journal of Law and the Public Interest

This article discusses using mindfulness techniques to help students learn authenticity in trial setting.

From Ripe To Rotten: An Examination Of The Continued Utility Of The Ripeness Doctrine In Light Of The Modern Standing Doctrine, Michael A. Delgaudio

Georgia Law Review

First year law students are generally taught that the justiciability doctrines of standing and ripeness perform distinct functions that work together to help courts determine whether an Article III "case or controversy" exists in particular suits. The standing doctrine, it is said, assists courts in this inquiry by determining who can bring suit, whereas the ripeness doctrine assists them by determining when someone can bring suit. This theoretical distinction in the doctrines' functions is based on the original forms the standing and ripeness doctrines took. Over the course of the past century, however, the Supreme Court has altered the standing …

You've Got Legal Mail: Applying Constitutional Protections To Attorney-Inmate E-Mail Communications, Gregory R. Steele

Georgia Law Review

Several U.S. Attorney's offices have begun to read e-mails between defense attorneys and their inmate-clients sent through the Bureau of Prisons TRULINCS system. District courts have been split on how they address the issue. This Note argues that the practice of reading attorney-inmate e- mails violates the Sixth Amendment. It specifically argues that the legal mail doctrine should be applied to invalidate this practice. It then argues the Bureau of Prisons should promulgate new regulations for legal e-mail that ensure compliance with the constitutional requirements of the newly applied legal e-mail doctrine.

The Preliminary Injunction Standard In Diversity: A Typical Unguided Erie Choice, David E. Shipley

Georgia Law Review

The standard for granting preliminary injunctions in some states is not the same as the preliminary injunction standard that is followed in the federal district courts in the federal circuit where the state is located. For example, the interlocutory injunction standard in Georgia's superior courts is not as demanding as the preliminary injunction standard in Georgia's federal courts. Although state and federal courts in Georgia consider four similar factors in deciding whether to grant or deny provisional injunctive relief, a balancing or sliding scale approach can be used in Georgia's courts; the moving party need not prove all four of …

Salman V. United States: Insider Trading's Tipping Point?, Donna M. Nagy

Articles by Maurer Faculty

No abstract provided.

Legal Interpreter For The Jury: The Role Of The Clerk Of The Court In Spain, Mar Jimeno-Bulnes, Valerie P. Hans

Cornell Law Faculty Publications

The Clerk of the Court (secretario judicial) in Spanish provincial courts is an important legal actor in the proceedings of the modern Spanish jury, introduced in 1995. In contrast to the general verdicts of traditional common-law juries, Spanish juries must answer an often lengthy list of specific questions, and must provide the reasoning supporting these responses. Early on, many Spanish juries found the task of providing legally acceptable responses and reasons challenging. Because the law permits the clerk to enter the deliberation room to assist the jury in its writing of the verdict, the clerk has come to act as …

The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene

Faculty Scholarship

In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even though …

Assessing And Achieving Jury Pool Representativeness, William Caprathe, Paula Hannaford-Agor, Stephanie Mccoy Loquvam, Shari Seidman Diamond

Faculty Publications

Lack of representativeness is evident in the courtroom, but solutions must be pursued much earlier. The Jury Management Committee of the ABA’s National Conference of State Trial Judges, with Paula Hannaford-Agor of the National Center for State Courts (NCSC), identified a series of steps judges and administrators can take to determine if the procedures used to assemble jurors result in representative jury panels and improve the representativeness of jury panels. The steps focus on (1) establishing reliable methods of measuring the demographic composition of the jury pool, (2) ensuring the inclusiveness and representativeness of the jury pool, and (3) assessing …

Digital Evidence And The Adversarial System, Colton Fehr

Canadian Journal of Law and Technology

Scholars have observed that the adversarial system tends to provide courts with only a ‘‘small snapshot of the technological whole,” which in turn forms the record upon which broader legal pronouncements occur. As a result, they contend that legislatures should be more proactive in making rules governing complex and rapidly advancing technologies, and that courts must show deference to these rules. Other scholars retort that, in practice, legislatures often fail to update obviously flawed and outdated privacy provisions. Whether due to special interest influence, majoritarian dislike of criminal suspects, or other institutional constraints, legislative responses have been wanting. As such, …

A Survey Of Beliefs And Priorities About Access To Justice Of Family Law: The Search For A Multidisciplinary Perspective, Peter Salem, Michael Saini

Cardozo Journal of Conflict Resolution

Within the last decade, the term "Access to Justice" has grown in popularity among legal commentators, scholars, family justice reformers, government policy makers, and the media. But with all of this new attention, there remains no common understanding or definition of Access to Justice and its potential implications for children and families in domestic relation courts. The purpose of this cross-sectional online survey was to explore the meaning of Access to Justice according to legal, mental health, and dispute resolution professionals in various countries. The sample included 442 respondents (e.g., judges, lawyers, custody evaluators, mediators, family court services, court administrators, …

Multicultural Adr And Family Law: A Brief Introduction To The Complexities Of Religious Arbitration, Michael J. Broyde

Cardozo Journal of Conflict Resolution

Recent polls indicate that the U.S. population is getting less religious and more secular. This seems to mirror the nation'sand its laws'-movement away from reflecting certain traditional values. While these movements have left some members of the religious population in a precarious situation, surrounded by a society whose values are changing before their eyes, it has also caused the religious to cling tighter to their respective faiths and become more entrenched in the values they assert.

Resolving Multicultural Family Disputes In New York: A Clash Of Courts And Cultures, Alla Roytberg

Cardozo Journal of Conflict Resolution

In this Article, I will discuss my experiences with litigated cases involving multi-cultural families. I will then analyze how issues of cultural sensitivity can be addressed and honored during a mediation between the parties, with the help of an experienced, culturally sensitive mediator.

The Big Data Jury, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

This article addresses the disruptive impact of big data technologies on jury selection.Jury selection requires personal information about potential jurors. Current selection practices, however, collect very little information about citizens, and litigants picking jury panels know even less. This data gap results in a jury selection system that: (1) fails to create a representative cross-section of the community; (2) encourages the discriminatory use of peremptory challenges; (3) results in an unacceptably high juror “no show” rate; and (4) disproportionately advantages those litigants who can afford to hire expensive jury consultants.Big data has the potential to remedy these existing limitations and …

The Transformative Influence Of International Law And Practice On The Death Penalty In The United States, Richard Wilson

Contributions to Books

No region of the world has been more vocal and persistent in its opposition to U.S. death penalty practice than Europe, which has itself become a death penalty-free zone. The chapter will examine the actions taken by European legislative and judicial bodies against U.S. practice of the death penalty, as well as those of the other regional treaty bodies, with particular attention to the Inter-American human rights system, in which the U.S. reluctantly participates. It then will examine U.S. interactions with its treaty partners in the area of extradition, where death penalty policy is acted out in the exchanges of …

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …

Double Counting: The Appropriate Application Of The Vulnerable Victim Enhancement For Child Sex Offenders, Amy Yoon

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Introduction: New Models For Prosecutorial Accountability, Russell Shapiro

Cardozo Law Review de•novo

The criminal justice system in the United States was established on a simple notion: “that it is better that ten guilty persons escape, than that one innocent suffer.” It is for this reason that a prosecutor’s burden at trial is so demanding, requiring proof beyond a reasonable doubt. Yet, while a vast majority of prosecutors are committed to the highest ethical standards, with troubling frequency, some high profile exonerations shed light on systemic problems, most often involving failures by prosecutors and other law enforcement officials to disclose exculpatory and impeachment evidence as required by Brady v. Maryland.

To address …

Taiwan's Path To Independence: Resolving The "One China" Dispute, Kristine Yeh Koopman

Cardozo Journal of Conflict Resolution

This Note discusses the historical and legal contexts within which Taiwan is arguably its own state, and advances the notion that members of the international community must finally take a definitive stance as to whether Taiwan is its own sovereign state in order to resolve the "one China" dispute, rather than choosing to remain supposedly impartial. Section II of this Note provides an overview of Taiwan's path to statehood, democracy, and independence. Section III then examines the status of Taiwan in international settings and legal contexts, and highlights Taiwan's claims of independence, as well as China's claims for reunification. Lastly, …

Tweeting #Justice: Audio-Visual Coverage Of Court Proceedings In A World Of Shifting Technology, Itay Ravid

Cardozo Arts & Entertainment Law Journal

The debate over whether to allow cameras into courtrooms refuses to fade away. In 2015 alone, U.S. federal courts completed a five-year experiment with cameras in courts, New Zealand published new guidelines for audio-visual coverage, and Scotland completely revised its former broadcast policy. These jurisdictions, and others around the globe, constantly struggle to design model practices that successfully balance freedom of the press, transparency, and public access to information, with rights to a fair trial and privacy. The constant need to rethink coverage policies can be attributed in large part to the advancement of technology, providing the media innovative tools …

Fixing The Federal Judicial Selection Process, Carl W. Tobias

Law Faculty Publications

Federal court selection is eviscerated. Across five years in Barack Obama’s presidency, the judiciary confronted some eighty-five vacancies because Republicans never agreed to prompt Senate consideration. Only when the Democratic majority ignited the “nuclear option,” a rare action that permitted cloture with fewer than sixty votes, did gridlock end. However, openings quickly grew after the Grand Old Party (GOP) captured an upper chamber majority, notwithstanding substantial pledges that it would supply “regular order” again. Over 2015, the GOP cooperated little, approving the fewest jurists since Dwight Eisenhower was President. However, selection might worsen. This year is a presidential election year, …