Courts Commons^™

Voir Dire In The #Lol Society: Jury Selection Needs Drastic Updates To Remain Relevant In The Digital Age, 47 J. Marshall L. Rev. 459 (2013), Zachary Mesenbourg

UIC Law Review

No abstract provided.

Waiting Is The Hardest Part: Why The Supreme Court Should Adopt The Third Circuit's Analysis Of Pay-For-Delay Settlement Agreements, Marlee P. Kutcher

Loyola University Chicago Law Journal

No abstract provided.

Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney

Faculty Scholarship

This Article contends that ordinary meaning analysis based on dictionaries and language canons cannot be reconciled with the faithful agent model. Fidelity to Congress as a principal entails fidelity to its lawmaking enterprise, not to words or sentences divorced from that enterprise. Congress has indicated that it does not value dictionaries as part of its lawmaking process, and it ascribes at most limited weight to language canons in that process. Further, Justices advocating ordinary meaning analysis too often use dictionary definitions, and language canons such as the rule against surplusage, the whole act rule, and ejusdem generis, in ways that …

Second Amendment Challenges To Student Housing Firearms Bans: The Strength Of The Home Analogy, Michael L. Smith

Faculty Articles

Public colleges and universities or state governments often ban the possession of firearms on public university or college property. These bans typically extend to student housing. While much has been written about campus bans on the carrying of concealed firearms, the topic of gun bans in the student housing context has been largely unaddressed in Second Amendment literature. This Comment seeks to fill that gap by evaluating potential student challenges to firearms bans in the student housing context in light of potential standards of review courts may apply and in light of the U.S. Supreme Court's decisions in District of …

Heuristics, Cognitive Biases, And Accountability: Decision-Making In Dependency Court, Matthew I. Fraidin

Journal Articles

On tens of thousands of occasions each year, state court judges wrongly separate children from their families and place them in foster care. And while a child is in foster care, judges are called on to render hundreds of decisions affecting every aspect of the child’s life. This Article uses insights from social psychology research to analyze the environment of dependency court and to recommend changes that will improve decisions. Research indicates that decision makers aware at the time they make a decision that they will be called upon later to explain it may engage in a systematic, deliberate decision-making …

Minding The Court: Enhancing The Decision-Making Process, Pamela Casey, Kevin Burke, Steve Leben

Faculty Works

A compelling and growing body of research from the fields of cognitive psychology and neuroscience provides important insights about how we process information and make decisions. This research has great potential significance for judges, who spend much of their time making decisions of great importance to others. For most judges, this research literature is not part of their judicial education. This article reviews cutting edge research about decision making and discusses its implications for helping judges and those who work with them produce fair processes and just outcomes. It builds on a 2007 American Judges Association paper that encouraged judges …

Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien

Faculty Works

Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases …

Supreme Court Leaks And Recusals: A Response To Professor Steven Lubet’S Scotus Ethics In The Wake Of Nfib V. Sebelius, 47 Val. U. L. Rev. 925 (2013), Kevin Hopkins

UIC Law Open Access Faculty Scholarship

As Professor Steven Lubet notes in his article, Stonewalling, Leaks, and Counter-Leaks: SCOTUS Ethics in the Wake of NFIB v. Sebelius, the ethical conduct of Supreme Court Justices has once again gained national attention. This time, however, the context for public outcry is due to actions of an in-house source who released confidential information to a member of the press concerning the voting behavior and the overall sentiments of members of the Court's minority in one of the most significant and controversial rulings of the year: NFIB v. Sebelius (the "Affordable Care Act"). Professor Lubet uses this leaking of significant …

Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Arbitration And The Future Of Delaware's Corporate Law Franchise, Brian Jm Quinn

Cardozo Journal of Conflict Resolution

On September 9, 2011, Skyworks Solutions, Inc. ("Skyworks") and Advanced Analogic Technologies Incorporation ("AATI") entered into a merger agreement. The agreement included an uncommon provision with respect to dispute resolution. In part, that provision stated, "the parties hereto agree that any and all disputes arising under or related in any way to this Agreement or the Transactions shall be resolved solely in arbitration before the Court of Chancery of the State of Delaware. " Until AATI later sought specific performance of the merger agreement via arbitration pursuant to that provision, little notice had been paid by outside observers to the …

The Impact Of Local Patent Rules On Rate And Timing Of Case Resolution Relative To Claim Construction: An Empirical Study Of The Past Decade, Pauline M. Pelletier

Journal of Business & Technology Law

No abstract provided.

Fairness And Politics At The Icty: Evidence From The Indictments, 39 N.C. J. Int'l L. & Com. Reg. 45 (2013), Stuart K. Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

Waiving Goodbye To A Fundamental Right: Allocation Of Authority Between Attorneys And Clients And The Right To A Public Trial, 38 J. Legal Prof. 1 (2013), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Deferring To Secrecy, 54 B.C. L. Rev. 185 (2013), Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

In prescribing de novo judicial review of agencies' decisions to withhold requested information from the public under the Freedom of Information Act (FOIA), Congress deliberately and radically departed from the typical deferential treatment courts are required to give to agencies. Nonetheless, empirical studies demonstrate that the de novo review standard on the books in FOIA cases is not the standard used in practice. In fact, despite being subject to the stringent de novo standard, agencies' FOIA decisions are upheld at a substantially higher rate than agency decisions that are entitled to deferential review. This Article posits that although courts recite …

The Law And Science Of Video Game Violence: What Was Lost In Translation?, 31 Cardozo Arts & Ent. L.J. 297 (2013), William K. Ford

UIC Law Open Access Faculty Scholarship

"[A]s a general rule," writes Pulitzer Prize-winning journalist Edward Humes, "courts don't do science very well."' Susan Haack, a professor of law and philosophy, elaborates on why this may be true, offering several reasons for "deep tensions" between science and law. The reasons offered by Haack may be less of a concern where the dispute involves litigation against the government on significant questions of public policy. Recent decisions assessing the constitutionality of laws restricting minors' access to violent video games therefore offer an opportunity to examine how well the courts handled scientific evidence in a situation lacking some of the …

Spatial Legality, Due Process, And Choice Of Law In Human Rights Litigation Under U.S. State Law, Anthony J. Colangelo, Kristina Kiik

Faculty Journal Articles and Book Chapters

Framing the topic of this symposium as “Human Rights Litigation in State Courts and Under State Law” effectively orients the discussion around the rights of plaintiffs from the outset, the central question being whether they have enforceable rights in U.S. state courts under state law. Standing in the way are various legal doctrines. In broad strokes, the relevant questions become: Which doctrines do, or should, either facilitate or obstruct human rights litigation in U.S. state courts and under state law? How are courts applying these doctrines? How should courts apply these doctrines?

Many of the doctrines that potentially stand in …

The Reappearing Judge, Steven S. Gensler, Lee Rosenthal

Faculty Articles

No abstract provided.

Toward A Conceptual Framework For Trauma-Responsive Practice In Courts, Shawn C. Marsh, Joan Byer

Criminal Law Practitioner

No abstract provided.

Collapsing Suspect Class With Suspect Classification: Why Strict Scrutiny Is Too Strict And Maybe Not Strict Enough, Sonu Bedi

Georgia Law Review

While scholarly work often analyzes the nature and scope
of the Court's tiers of scrutiny approach to enforcing
equality, this Article examines the underlying theory of
equal protection. This Article mounts a challenge to the
theory of higher scrutiny, and, in particular,strict scrutiny.
It seeks to analyze two questions: (1) What principles trigger
heightened scrutiny? and (2) Why does the Court need to
subject laws that discriminate on the basis of race to strict
scrutiny? The first question concerns the underlying theory
of equal protection doctrine: the "what" of higher scrutiny.
Scholarly work that seeks to answer this question rightly …

War Of The Words: Why False Statements Should Be Guaranteed First Amendment Protection, Virginia R. Priddy

Georgia Law Review

In Haley v. State, the Georgia Supreme Court upheld
the conviction of Andrew Scott Haley for making a false
statement. Haley created a username and posted videos to
the Internet in which he claimed to have committed a
series of murders, goading his audience to try to solve the
"mysteries." Haley was convicted under a Georgia statute
that proscribes the making of a false statement within the
jurisdiction of an agency or department of state of Georgia.
After discussing the historical legal and philosophical
underpinnings of the First Amendment right to free
speech, this Note argues that the Georgia statute …

The Modern Trial And Evidence Law: Has The "Rambling Altercation" Become A Pedantic Joust?, Daniel D. Blinka

Georgia Law Review

This Article places the relationship between evidence
rules and the modern trial in a historical context. The
trial's foundation is in popular culture-lay witnesses
testifying before a lay jury. Eighteenth-century trials were
a "rambling altercation" between the defendant and his
accusers-unruly (literally), unstructured, very brief, and
less concerned with the "truth"than a socially acceptable
judgment. The modern trial's emergence in the nineteenth
century coincided with the professionalization of law, the
active involvement of lawyers as advocates, and the
sprouting of evidence rules to regulate both lawyers and
lay juries. Nonetheless, evidence law accommodated
prevailing lay culture in order to foster …

The Withering Away Of Evidence Law: Notes On Theory And Practice, Robert P. Burns

Georgia Law Review

The plausibility of evidentiary regimes depends on more
basic understandings of the nature of the trial. 'Tough-
minded" evidence scholars may sometimes be reluctant to
concede the importance of more "tender-minded"
normative inquiries into the trial. Some implicit ideals of
evidence law, such as factual accuracy, are relatively
constant among theories of the trial, while others, such as
materiality, are significantly affected by the choice among
competing theories. This Article identifies the dominant
theory of the trial and then suggests an alternative. It
then offers a number of grounds for further relaxing the
exclusionary force of evidence law and for …

The Curious Case Of Differing Literary Emphases: The Contrast Between The Use Of Scientific Publications At Pretrial Daubert Hearings And At Trial, Ronald L. Carlson

Georgia Law Review

An expert's testimony at a pretrial Daubert hearing is
frequently supported by professional writings. Technical
literature is employed by litigants to buttress controversial
scientific theories and research. By way of example, a
plaintiff's attorney may urge that an alleged toxic
substance caused his or her client's cancer. The objective
in providing the court with learned texts and articles is to
convince the trial judge to admit expert opinions that
support causation. This Article reports appellate opinions
that strongly encourage production of professional
writings in the pretrial context. Indeed, in several cases
the absence of published research resulted in defeat of …

Safe Haven No Longer: The Role Of Georgia Courts And Private Probation Companies In Sustaining A De Facto Debtors' Prison System, Sarah D. Bellacicco

Georgia Law Review

Georgia was specifically established as a colony for debtors-a haven where they could be safe from imprisonment. It is a haven no longer. Georgia courts are regularly imprisoning people for failing to pay debts, often through probation revocation of probationers who have failed to pay a fine or fee imposed as a condition of probation. Some of these probationers are on probation solely because they could not pay a fine on the day of sentencing, a practice which greatly increases the amount they owe due to the additional probation fees imposed. In Bearden v. Georgia, the Supreme Court held that …

International Perspectives On Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Part I of this Article traces the history of the Scottish Criminal Cases Review Commission (SCCRC) and outlines the procedures employed by the SCCRC after an application is received, with particular attention to its extensive investigatory procedures. It also describes and analyzes the standards for referral of an application to the Scottish court. Part II briefly sets forth the statistics concerning applications, referrals, and judicial decisions. Part III includes an analysis of the SCCRC’s work by looking at the cases that have been referred and decided by the court. Those cases are divided into several categories: fresh evidence referrals, referrals …

Trying Terrorism: Joint Criminal Enterprise, Material Support, And The Paradox Of International Criminal Law, Alexandra Link

Michigan Journal of International Law

This Note will examine theoretical problems in ICL and public international law by evaluating the practical implications of applying ICL sources to find criminal liability outside the narrow confines of the international tribunals. It will examine the problems posed by the conflicting standards of the Rome Statute and ICTY jurisprudence as a matter of customary international law, the failure of U.S. courts to effectively confront the contextual and doctrinal analysis necessary to determine the limitations of these sources, and the proper application of these sources to the issues raised in Hamdan II and Al Bahlul. Viewing ICL through the lens …

Should There Be A Presumption Favoring Awards Of Attorney’S Fees In Copyright Litigation?, 12 J. Marshall Rev. Intell. Prop. L. 630 (2013), William T. Mcgrath

UIC Review of Intellectual Property Law

Section 505 of the Copyright Act allows courts to award attorney’s fees to the prevailing party in a copyright case. Almost twenty years ago, the Supreme Court in Fogerty resolved a split among the circuits over the interpretation of that statute. First, it held that courts should apply several nonexclusive factors when determining if the prevailing party, whether defendant or plaintiff, should be entitled to recover attorney’s fees. Second, the Court refused to apply a presumption that the prevailing party will automatically recover attorney’s fees, opting instead for the districts courts to apply “equitable discretion” in awarding fees. But in …

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

Scholarly Articles in Law Reviews & Journals

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

The Efficacy Of The Negative Injunction In Breach Of Entertainment Contracts, 46 J. Marshall L. Rev. 409 (2013), Eliot Axelrod

UIC Law Review

No abstract provided.

The Sky Is Falling (Again): Evaluating The Current Funding Crisis In The Judiciary, Donald E. Campbell

Journal Articles

This Article will consider the current crisis in a broad historical context. This larger narrative can provide a helpful perspective in the current debate. It offers a glimpse into how we came to the current system and allows us to question our assumptions regarding the way the system currently works. Historical context is an important (and under-discussed) aspect of this crisis. As the leaders of the bench and bar come together to evaluate changes to the current system, the discussion should begin with understanding how the system evolved to where it is now and with appreciating the fact that the …