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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 …

International Law's Erie Moment, Harlan Grant Cohen

Michigan Journal of International Law

The episode put the question starkly: Who fills the gaps in international law and how? A series of tribunals operating under Chapter 11 of the North American Free Trade Agreement (NAFTA) had adopted broader interpretations of vague treaty language than those recommended by the state parties. In response, government ministers from the three state parties, Mexico, Canada, and the United States, operating through the Free Trade Commission (FTC) established by the treaty, adopted "Notes of Interpretation" clarifying their view of the treaty's meaning. International tribunals are generally tasked with examining state practice, either to recognize rules of customary international law …

Post-Crisis Reconsideration Of Federal Court Reform , David R. Cleveland

Cleveland State Law Review

While the language of crisis has diminished, the caseload volume problem continues to bedevil the federal appellate courts, and the altered process adopted describe, there are just too many cases to handle with current resources using the time-honored appellate process; there is no simple solution. The path of least resistance—sacrificing appellate standards—has proven workable and effective, and the more significant steps such as reducing appeals or increasing judicial resources have gone unadopted. Various studies and proposals of the federal court system have suggested other methods that could be used to address the problem, and these methods should be seriously considered …

Socioeconomic Bias In The Judiciary , Michele Benedetto Neitz

Cleveland State Law Review

Judges hold a prestigious place in our judicial system, and they earn double the income of the average American household. How does the privileged socioeconomic status of judges affect their decisions on the bench? This Article examines the ethical implications of what Ninth Circuit Chief Judge Alex Kozinski recently called the “unselfconscious cultural elitism” of judges.** This elitism can manifest as implicit socioeconomic bias. Despite the attention paid to income inequality, implicit bias research and judicial bias, no other scholar to date has fully examined the ramifications of implicit socioeconomic bias on the bench. The Article explains that socioeconomic bias …

Judicial Independence: New Challenges In Established Nations, Martin Shapiro

Indiana Journal of Global Legal Studies

Because courts are both conflict-resolving and lawmaking bodies, they should be both independent and accountable. This paradox of incidence and accountability cannot be resolved but only addressed by various and shifting pragmatic accommodations between independence and accountability. Prosecutors, trial courts, appeals courts, and constitutional courts are each subject to differing consideration in arriving at such accommodations.

Moreover, courts, as courts of law, are not independent but are agents of statutory and constitutional lawmakers. Excessive emphasis on judicial independence creates the danger that authoritarian regimes may achieve a cloak of legitimacy for their laws by having them enforced by independent judiciaries. …

A Tale Of Two Dauberts, Julie A. Seaman

Georgia Law Review

Under the Federal Rules of Evidence and Supreme
Court precedent, a single standard ostensibly governs the
admissibility of scientific and other expert evidence in
criminal and civil cases. Although Georgia has recently
become the forty-fourth state to adopt the Federal Rules of
Evidence, it has declined to adopt Daubert for criminal
cases and has retained the prior, more lenient, standard.
While many commentators view this approach as perverse,
this Article considers the possible virtues not only of
explicitly applying a separate rule to scientific evidence in
criminal cases but also of applying a less stringent rule to
such evidence. Based …

Book Review. Epstein, L., Et. Al., The Behavior Of Federal Judges: A Theoretical And Empirical Study Of Rational Choice, Ashley A. Ahlbrand

Articles by Maurer Faculty

No abstract provided.

The Dimensions Of Judicial Impartiality, Charles G. Geyh

Articles by Maurer Faculty

Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when "we are all legal realists now," perfect impartiality-the complete absence of bias or prejudice-is at most an ideal; "impartial enough" has, of necessity, become the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: a procedural dimension, in which impartiality affords parties a fair hearing; a political dimension, in which …

The Stricter Standard: An Empirical Assessment Of Daubert’S Effect On Civil Defendants, Andrew Jurs, Scott Devito

Catholic University Law Review

No abstract provided.

Giving Consumers A Leg To Stand On: Finding Plaintiffs A Legislative Solution To The Barrier From Federal Courts In Data Security Breach Suits, Patricia Cave

Catholic University Law Review

No abstract provided.

The Jurisdiction Of The Court Of Federal Claims And Forum Shopping In Money Claims Against The Federal Government, Gregory C. Sisk

Indiana Law Journal

No abstract provided.

The Judicial Reform In China: The Status Quo And Future Directions, Ji Weidong

Indiana Journal of Global Legal Studies

This article shows that Chinese adjudication is in a dilemma: on one hand, the judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …

What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

The Jurisdiction Of The D.C. Circuit, Matthew B. Lawrence, Eric M. Fraser, David Kessler, Stephen A. Calhoun

Faculty Articles

The U.S. Court of Appeals for the D.C. Circuit is unique among federal courts, well known for an unusual caseload that is disproportionally weighted toward administrative law. What explains that unusual caseload? This Article explores that question. We identify several factors that “push” some types of cases away from the Circuit and several factors that “pull” other cases to it. We give particular focus to the jurisdictional provisions of federal statutes, which reveal congressional intent about the types of actions over which the D.C. Circuit should have special jurisdiction. Through a comprehensive examination of the U.S. Code, we identify several …

Jewish Law Courts In America: Lessons Offered To Sharia Courts By The Beth Din Of America Precedent, Michael J. Broyde

Faculty Articles

Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. In the fifteen years since, an independent board of directors has worked with the BDA’s rabbinic leaders to craft an arbitration process that secular courts would feel comfortable upholding. While the BDA’s transformation required some level of compromise within Jewish law itself, the adaptations necessary for judicial acceptance proved to be procedural. Broadly, this meant conforming to the tenets of the Federal Arbitration Act (FAA). More specifically, the BDA’s viability came …

Standing's Expected Value, Jonathan R. Nash

Faculty Articles

This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive ex­pected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing juris­prudence by …

Crashing The Misdemeanor System, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis. Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court. This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” …

Law And Discretion In The Supreme Court: A Response To Professor Lubet, Barry Sullivan

Faculty Publications & Other Works

No abstract provided.

Mission Creep Or A Search For Relevance: The East African Court Of Justice’S Human Rights Strategy, James T. Gathii

Faculty Publications & Other Works

No abstract provided.

The International Criminal Court Ten Years Later: Appraisal And Prospects, Joseph M. Isanga

Cardozo Journal of International and Comparative Law

The International Criminal Court (ICC) faces significant challenges in achieving its objectives of deterrence, retribution, and ending impunity, primarily due to slow procedures, lack of state cooperation, and perceptions of bias. While the ICC has made qualitative contributions to international criminal law, its effectiveness is undermined by procedural inefficiencies, political interference, and limited enforcement mechanisms. The court's reliance on the complementarity principle and state cooperation highlights the tension between its judicial and political roles, with its future success contingent on addressing these systemic issues.

Contested States And The Rights And Obligations Of The Jus Ad Bellum, Christian Henderson

Cardozo Journal of International and Comparative Law

The article examines the rights and obligations of contested states under the jus ad bellum, arguing that these entities, despite lacking widespread recognition as states, should be considered international legal persons. It challenges the traditional state-only conception of international personality and advocates for a recognition-based approach, which would extend the prohibition of the use of force and the right to self-defense to contested states. The analysis highlights the complexities and contradictions in applying these principles, particularly regarding collective self-defense, and suggests that a pragmatic interpretation could balance international peace and security with the legal protection of contested states.

Born Lost: Stateless Children In International Surrogacy Arrangements, Tina Lin

Cardozo Journal of International and Comparative Law

The note examines the legal and humanitarian challenges posed by statelessness in children born through international surrogacy arrangements, particularly in countries like India and Ukraine, where lax regulations and conflicting nationality laws create legal limbo for surrogate children. It argues that the best interests of the child should guide legal reforms and judicial decisions to prevent statelessness and ensure citizenship rights. The analysis emphasizes the need for domestic and international legal frameworks to address the gaps in nationality acquisition and surrogacy regulation.

Through The Eyes Of Jurors: The Use Of Schemas In The Application Of "Plain-Language" Jury Instructions, Sara Gordon

Scholarly Works

"Through the Eyes of Jurors" is the first law journal article to consider all of the major cognitive psychology studies that examine how "schemas," or the preexisting notions jurors have about the law, shape jurors' use of jury instructions, even when those jurors are given "plain-language" instructions. This Article examines the social science research on schema theory in order to advance our understanding of how schemas continue to influence jurors' use of jury instructions, even when those jurors are given "plain language" instructions.

A significant body of legal literature has examined jurors' use and understanding of jury instructions, and many …

Dubious Deference: Reassessing Appellate Standards Of Review In Immigration Appeals, Michael Kagan

Scholarly Works

The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. First, the most prominent justification for deference relies on the empirical assumption that first-instance adjudicators are best able to determine the truth because they can directly view witness demeanor. Decades of social science research has proven this assumption about the value of demeanor false. Second, in principle, the deference rule applies to all types of administrative adjudication, with no attention to the relative gravity of interests at stake in different types of cases or to the varying …

Does Living By The Sword Mean Dying By The Sword, Charles Chernor Jalloh

Articles

This article examines the right to self-representation in international criminal law, and the common challenges posed for judges effectuating that right in international criminal courts. Using a comparative law approach, the paper demonstrates how the interpretation of that right initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international law, the author contends that this right seems better in theory than in practice. Indeed, since no self-representing …

Inkblot: The Ninth Amendment As Textual Justification For Judicial Enforcement Of The Right To Privacy, Kurt T. Lash

Law Faculty Publications

One of the more indelible moments in late twentieth century legal discourse occurred when Judge Robert Bork described the proper response of a judge confronted with the Ninth Amendment. Nominated to replace retiring Supreme Court Justice Lewis Powell, Judge Bork appeared before the Senate Judiciary Committee and declared that courts had no business enforcing the mysterious clause at all. Given the scarcity of historical evidence regarding the original meaning of the amendment, using the Ninth Amendment to strike down a law would say more about the predilections of the judge than the requirements of the text. Here is the famous …

Constructing Courts: Architecture, The Ideology Of Judging, And The Public Sphere, Allison Anna Tait

Law Faculty Publications

In several countries, governments have embarked on major building expansion programs for their judiciaries. The new buildings posit the courtroom as their center and the judge as that room’s pivot. These contemporary projects follow the didactic path laid out in Medieval and Renaissance town halls, which repeatedly deployed symbolism in efforts to shape norms. Dramatic depictions then reminded judges to be loyal subjects of the state. In contrast, modern buildings narrate not only the independence of judges but also the dominion of judges, insulated from the state. The significant allocation of public funds reflects the prestige accorded to courts by …

State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that …