Courts Commons^™

Walk & Turn, Finger To Nose, One Leg Stand: Oh My - How Florida Courts Have Defined Field Sobriety Exercises, Amar V. Patel, Krysten A. Pogue

St. Thomas Law Review

If you drink alcohol and get behind the wheel of a vehicle, you dramatically increase your chance of being in a car accident. You also run the risk of being stopped by law enforcement and subjected to arrest and DUI charges. When law enforcement stops a vehicle based on a reasonable suspicion of DUI, probable cause must be established before making an arrest. Field sobriety exercises ("FSEs") are commonly used police procedures to establish that probable cause. Developing probable cause is of critical importance, not only because it is a prerequisite to a lawful arrest, but also because citizens who …

Lost Without Translation?: Cross-Referencing And A New Global Community Of Courts, Antje Wiener, Philip Liste

Indiana Journal of Global Legal Studies

Anne-Marie Slaughter has described the "new world order" as characterized by some "conceptual shifts," including an increasing cooperation of domestic courts across nation-state boundaries. The cross-jurisdictional referencing of legal norms and decisions, as Slaughter holds, would lead into a "global community of courts." This article takes issue with that observation. We argue that for such a community to emerge, cross-referencing would need to be followed by an effective transmission of meaning from one (legal) context to another. Following recent insights in the field of International Relations norm research, however, we can expect such meanings to be contested-in particular, when different …

Tribute To Randall Shepard, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

(Un)Appealing Deference To The Tax Court, Leandra Lederman

Articles by Maurer Faculty

The U.S. Tax Court (Tax Court), which hears the vast majority of litigated federal tax cases, occupies an unusual place in the federal government. It is a federal court located outside of the judicial branch, but its decisions are appealable to the federal courts of appeals. This odd structure, coupled with the court's history as an independent agency in the executive branch, can give rise to important questions, such as the standard of review that should apply to its decisions. In particular, should the courts of appeals treat Tax Court decisions the same as those of district courts in tax …

Restructuring The U.S. Tax Court: A Reply To Stephanie Hoffer And Christopher Walker's The Death Of Tax Court Exceptionalism, Leandra Lederman

Articles by Maurer Faculty

This article is an invited reply to an article in the Minnesota Law Review regarding whether the “reviewing court” provisions of the Administrative Procedure Act (APA) apply to the U.S. Tax Court, the principal court hearing disputes between taxpayers and the IRS. (The Tax Court has repeatedly said that the APA does not apply to it). It argues in part that the question of whether the Tax Court must apply the APA’s standard and scope of review when reviewing IRS action is not as clear as a matter of history and doctrine as Professors Hoffer and Walker argue. The author …

Further Standing Lessons, Heather Elliott

Indiana Law Journal

Professor Elliott wrote a piece for the Indiana Law Journal in 2012 (available here). In this article, she updates her analysis and explores the implications of both the health-care and marriage equality cases on the Court’s standing doctrine.

Windsor, Shelby County, And The Demise Of Originalism: A Personal Account, Dawn E. Johnsen

Indiana Law Journal

Essays on the Implication of Windsor and Perry

Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle

Indiana Law Journal

In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I …

Standing To Appeal And Executive Non-Defense Of Federal Law After The Marriage Cases, Ryan W. Scott

Indiana Law Journal

Essays on the Implications of Windsor and Perry

Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders

Indiana Law Journal

Essays on the Implications of Windsor and Perry

Leveling Up After Doma, Deborah A. Widiss

Indiana Law Journal

Essays on the Implication of Windsor and Perry

Not Without Political Power: Gays And Lesbians, Equal Protection And The Suspect Class Doctrine, Darren L. Hutchinson

Faculty Articles

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.

A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

Cyborgs In The Courtroom: The Use Of Google Glass Recordings In Litigation, Kristin Bergman

Richmond Journal of Law & Technology

The future is now. Wearable computers such as Google Glass (Glass) have begun entering society—we see people wearing these devices on the streets, in classrooms, at parties, and elsewhere. Though most of these devices are not yet available to the public at large, there has been much hype over the impact Glass will have on our interactions, privacy, safety, and more. Although this Article will briefly address such controversial aspects, it will focus more narrowly on the potential utility of Glass in litigation.

The Icc's Exit Problem, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

The International Criminal Court (ICC) was never meant to supplant the domestic prosecution of international crimes. And yet the Court is now entering its second decade of operations in four African nations, with no plan for exit in sight. This Article identifies the looming need for the ICC to consider when and how to exit situations in which it is currently active. In addition to the normative concern that a failure to start planning for exit undercuts the Court’s placement within a system of complementarity, the need to consider exit is also driven by a financial imperative. The Court’s caseload …

Magna Carta In Supreme Court Jurisprudence, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

Editor's Note: This article is adapted from "Magna Carta in Supreme Court Jurisprudence," which appears as Chapter 5 in Magna Carta and the Rule of Law, Daniel Magraw et al., eds., published by the American Bar Association in 2014.

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing?, Mark A. Summers

Richmond Journal of Global Law & Business

No abstract provided.

Fiduciary Principles And The Jury, Ethan J. Leib, Michael Serota, David L. Ponet

Faculty Scholarship

This Essay argues that because jurors exercise state power with wide discretion over the legal and practical interests of other citizens, and because citizens repose trust and remain vulnerable to jury and juror decisions, juries and jurors share important similarities with traditional fiduciary actors such as doctors, lawyers, and corporate directors and boards. The paradigmatic fiduciary duties – those of loyalty and care – therefore provide useful benchmarks for evaluating and guiding jurors in their decision-making role. A sui generis public fiduciary duty of deliberative engagement also has applications in considering the obligations of jurors. This framework confirms much of …

Citizenship At Work: How The Supreme Court Politically Marginalized Public Employees, Ruben J. Garcia

Scholarly Works

Collective bargaining by public sector employees has been the subject of recent heated debates in the state legislatures of Wisconsin, Michigan, Ohio, and Indiana. The right of public sector employees to freedom of association, collective bargaining, and the right to participate in politics are among the “citizenship rights” of public employees. In many states, however, the citizenship rights of public employees are under threat both in state legislatures and in the courts. Paradoxically, the ability of public sector employees to change legislation has been hampered over the years by Supreme Court decisions, making it more difficult to organize politically by …

Buying Time? False Assumptions About Abusive Appeals, Michael Kagan, Fatma Marouf, Rebecca Gill

Scholarly Works

The federal government has expressed fear that immigrants abuse the appellate process to delay their deportations by filing meritless petitions for review with the federal courts. Some courts have responded to these concerns by imposing stricter standards for issuing stays of removal, so that the government can more easily deport petitioners even while their appeals remain pending. The risk with this approach is that immigrants who ultimately prevail may be erroneously deported. What is often overlooked is that the potential for abuse is really a function of time, with longer appeals posing a greater threat to immigration enforcement. This study …

The Ninth Circuit’S Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian C. Bartrum

Scholarly Works

When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people …

Considering Patricia Millett For The D.C. Circuit, Carl W. Tobias

Law Faculty Publications

On June 4, Obama nominated three individuals: Patricia Millett, who has argued 32 Supreme Court appeals, Cornelia Pillard, who has won landmark High Court victories, and Robert Wilkins, who had served as a D.C. District Court judge for three years. The court’s allegedly smaller caseloads prompted Republicans to halt yes or no votes for all the nominees. But because well-qualified, moderate nominees warrant thorough consideration and final ballots, their Senate review deserves analysis, which this paper conducts by emphasizing Millett. It first surveys the nominee’s process and then shows how her evaluation concluded.

The Judiciary In Virginia: Changes And Challenges In Virginia: One Trial Judge's Perspective, Thoma D. Horne Retired Judge

Richmond Public Interest Law Review

With the convening of the 2014 Virginia General Assembly, members of the Senate and House received the anticipated 2013 Judicial Workload Assessment Report-a weighted case load study produced by the National Center for State Courts and commissioned by the legislature during its 2012 session. The purpose of the study was to help guide both the future selection of judges and the allocation of the political boundaries to be served by those judges. The results of the weighted caseload study as contained in the 2013 Report would validate many of those concerns expressed earlier by the 2011 Judicial Boundary Realignment Committee …

Overrides: The Super-Study, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters …

Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court).

Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod

Faculty Articles

In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …

Justice On The Fly: The Danger Of Errant Deportations, Fatma Marouf, Michael Kagan, Rebecca Gill

Scholarly Works

The government may deport an immigrant appealing a deportation order in federal court even before the court rules on the case, unless the court issues a stay of removal. In its 2009 decision in Nken v. Holder, the Supreme Court clarified that the legal standard for stays of removal is the same test courts use for preliminary injunctions. Yet Justice Kennedy expressed frustration that the Court had little data to inform its decision. The Court will likely need to revisit this issue, as doubts cloud the meaning of Nken’s main holdings, in part because the government misled the …

Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel

Publications

Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.

Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …

U.S. Judicial Independence: Victim In The “War On Terror” , Wayne Mccormack

Washington and Lee Law Review

No abstract provided.

Citizens United, States Divided: An Empirical Analysis Of Independent Political Spending, Douglas M. Spencer, Abby Wood

Indiana Law Journal

What effect has Citizens United v. FEC had on independent spending in American politics? Previous attempts to answer this question have focused solely on federal elections, where there is no baseline for comparing changes in spending behavior. We overcome this limitation by examining the effects of Citizens United as a natural experiment on the states. Before Citizens United, about half of the states banned corporate independent expenditures and thus were “treated” by the Supreme Court’s decision, which invalidated these state laws. We rely on recently released state-level data to compare spending in “treated” states to spending in the “control” states, …

Autopsy Reports And The Confrontation Clause: A Presumption Of Admissibility, Daniel J. Capra, Joseph Tartakovsky

Faculty Scholarship

Courts nationwide are divided over whether autopsy reports are “testimonial” under the Sixth Amendment’s Confrontation Clause. Resolving that split will affect medical examiners as dramatically as Miranda did police. This article applies the latest Supreme Court jurisprudence to the work of modern medical examiners in a comprehensive inquiry. It argues that autopsy reports should be presumed non-testimonial—a presumption overcome only by a showing that law enforcement involvement materially influenced the examiner’s autopsy report.