Courts Commons^™

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …

Constitutional Gaps In Bankruptcy, S. Todd Brown

Journal Articles

Federal bankruptcy law incorporates a broad range of commercial and related matters that are otherwise left to the States under the Constitution, follows an efficiency-centered process model that may implicate due process, and relies upon a judicial structure that appears to be inconsistent with Article III. In spite of the crushing volume of bankruptcy cases and proceedings each year in which the resolution of one or more of these questions may be relevant, the Supreme Court has had few opportunities to tackle them directly. Indeed, after more than two centuries, the Court has provided precious few insights into the limits …

An Updated Quantitative Study Of Iqbal's Impact On 12(B)(6) Motions, Patricia Hatamayar Moore

University of Richmond Law Review

The effect of Ashcroft v. Iqbal on pleadingstandardsandbehavior is a source of significant legal debate. This article serves as a follow-up to Professor Moore's 2010 empirical study on Iqbal's effect on courts' rulings on motions to dismiss complaints for failure to state a claim under Rule12(b)(6) of the Federal Rules of Civil Procedure. Professor Moore's previous study found a statistically significant increase in the likelihood that a court grants a 12(b)(6) motion with leave to amend following Iqbal. In this article, Professor Moore updates and increases the pool of cases in her database. The updated data reveals several empirical trends. …

Arbitrating Cultural Property Disputes, Elizabeth Varner

Cardozo Journal of Conflict Resolution

Years drag by, vicious allegations fly across the world stage, parties die frustrated. While cultural property disputes are frequently arbitrated internationally, arbitration is not often used in domestic cultural property disputes. One of the paradoxes of cultural property disputes is the need to resolve the issue while not harming the parties' reputation or devaluing the cultural property. While scholars have shown much interest in arbitrating cultural property disputes in the United States, maximizing the potential of arbitration in cultural property disputes has largely been ignored.

Rejecting the acceptability of litigating cultural property disputes in the battlefield of the courtroom, this …

"I Didn't Agree To Arbitrate That!"-How Courts Determine If Employees' Sexual Assault And Sexual Harassment Claims Fall Within The Scope Of Broad Mandatory Arbitration Clauses, Eric Koplowitz

Cardozo Journal of Conflict Resolution

Throughout the last few decades, mandatory arbitration clauses have become more prevalent in employment contracts. Mandatory arbitration clauses provide employers with a cheaper and less formal method to resolve disputes with their employees once they occur. Employers who want most or all of their employees' claims subjected to mandatory arbitration will use broad language in the arbitration clauses. Despite the use of broad and seemingly all-encompassing language in broad mandatory arbitration clauses, some employees' claims can escape their reach and proceed to court. This Note will look at how courts determine if employees' sexual assault and sexual harassment claims against …

2012 International Advocate For Peace Award Acceptance Speech, John Marks

Cardozo Journal of Conflict Resolution

Worldwide, tens of millions of people are caught up in violent conflict, and hundreds of thousands, if not millions, die every year as a direct result. Violence has a profoundly negative impact on the whole planet, even when it occurs in remote places. Where there is violence, lives and livelihoods are shattered; economic development is blocked; human rights are abused; and the environment is devastated. Consequently, preventing violence is a necessary precursor for humanity to move forward in positive ways. Current problems-whether economic, ethnic, or environmental-are too complex and inter-connected to be settled on a violent, adversarial basis. The earth …

Restoring Luster To The Palladium Of Freedom, Wm. T. Robinson Iii

Kentucky Law Journal

No abstract provided.

Judicial Independence And The State Court Funding Crisis, David J. Barron

Kentucky Law Journal

No abstract provided.

Do We Have 18th Century Courts For The 21st Century?, Michael L. Buenger

Kentucky Law Journal

No abstract provided.

State Courts And Public Justice: New Challenges, New Choices, John T. Broderick, Lawrence Friedman

Kentucky Law Journal

No abstract provided.

An Updated Quantitative Study Of Iqbal's Impact On 12(B)(6) Motions, Patricia W. Moore

Faculty Articles

The effect of Ashcroft v. Iqbal on pleading standards and behavior is a source of significant legal debate. This article serves as a follow-up to Professor Moore's 2010 empirical study on Iqbal's effect on courts' rulings on motions to dismiss complaints for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Professor Moore's previous study found a statistically significant increase in the likelihood that a court grants a 12(b)(6) motion with leave to amend following Iqbal. In this article, Professor Moore updates and increases the pool of cases in her database. The updated data …

To Kill A Mockingbird Mediator?: Assessing The Need For Third-Party Neutrals In Federal Bankruptcy Courts' Home Foreclosure Avoidance Programs, Lancelot L. Esteibar

Cardozo Journal of Conflict Resolution

This Note proceeds in four parts. First, Part I provides background information on the mortgage crisis, the loss mitigation processes, and current federal, state, and bankruptcy court programs aimed towards preventing foreclosure. Second, Part II describes the role of a mediator and the process of mediation. Third, Part III examines barriers to effective negotiation and why mediators can assist in overcoming those obstacles in the bankruptcy courts' loss mitigation programs. Finally, Part IV offers an alternative to the direct negotiation model prescribed by the S.D.N.Y., E.D.N.Y., and D.R.I. loss mitigation programs.

The Use Of Mediation As A Complement To The Integrated Domestic Violence Courts Of New York, Lauren K. Williams

Cardozo Journal of Conflict Resolution

In 2001, New York created the Integrated Domestic Violence Courts in order to more efficiently and more comprehensively address domestic violence cases. Domestic violence cases that were formerly spread out between two or three different courts can now be resolved in front of one judge. While this new court does minimize the hassle for the parties involved in the dispute and does eliminate inconsistent rulings by different judges in different courts, this new court structure does not address some problems that have existed with courts' approaches to resolving domestic violence. These problems include (1) that abusers can often afford to …

Possible Solutions To The Guitar Tablature Problem: Why An International Approach May Be Best For All, Lauren Myers

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Contemporary Meaning And Expectations In Statutory Interpretation, Hillel Y. Levin

Scholarly Works

This Article introduces and explores an approach to, or theme within, statutory interpretation, one grounded in contemporary meaning and expectations. This approach posits that judges interpreting ambiguous statutes are and should be constrained by the understanding and expectations of the contemporary public as to the law’s meaning and application. These are developed in response to, and mediated by, the actions and statements of government officials and the broader community. The Article argues that this apparently radical approach is necessary in order for law to maintain its moral force, and further that the principles underlying it are embedded in several doctrines …

The Rhetoric Hits The Road: State Resistance To Affordable Care Act Implementation, Elizabeth Weeks Leonard

Scholarly Works

This paper provides an update and reanalysis of my previously published article, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 93 Hofstra Law Review 111 (2010). In Rhetorical Federalism, I made an affirmative case for the widespread trend of state resistance to the then-recently enacted Patient Protection and Affordable Care Act of 2010 (ACA). Before and immediately after ACA’s enactment, a significant number of states engaged in various forms of objection to the new federal Act, including but not limited to lawsuits challenging the constitutionality of the individual insurance mandate. My article focused on five targets of …

The Chevron Two-Step In Georgia's Administrative Law, David Shipley

Scholarly Works

The Georgia Supreme Court and Court of Appeals have long accepted the General Assembly’s authority to enact legislation that establishes administrative agencies and empowers those agencies to promulgate rules and regulations to implement their enabling statutes. In addition, the Georgia Constitution provides that the General Assembly may authorize agencies to exercise quasi-judicial powers. Administrative agencies with broad powers enjoy a secure position under Georgia law.

Like federal and state administrative agencies throughout the nation, Georgia’s many boards, commissions and authorities make policy when they apply their governing statutes in promulgating regulations of general applicability, and in ruling on specific matters …

How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus

Articles

For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …

The Expanding Limits Of Prosecutorial Discretion: Ramalingam Ravinthran V Attorney-General [2012] Sgca 2, Siyuan Chen

Research Collection Yong Pung How School Of Law

The applicant was convicted of drug trafficking under the Misuse of Drugs Act and sentenced to hang. His appeal to the Court of Appeal was unsuccessful, but he filed a Criminal Motion to reopen judgment. He alleged a violation of his right to equality guaranteed by the Constitution of the Republic of Singapore; the alleged violation occurred when another accused who was involved in the same criminal enterprise (both had trafficked the same bag containing the drugs) was charged with trafficking in an amount of drugs quantified just below the threshold for the mandatory death penalty, while the accused was …

The Evolution Of The Summary Trial: A Flexible Tool To Meet A Variety Of Needs, Paula Hannaford-Agor, Nicole L. Waters

Faculty Publications

Are summary jury trials a viable forum for dispute resolution? The National Center for State Courts studied summary trials in six state courts to understand how these programs work and to determine the benefits and detriments of this approach to dispute resolution.

Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …

Suing Courts, Frederic Bloom, Christopher Serkin

Publications

This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different--on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Publications

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases--mainly wage claims but also age discrimination and gender equal pay claims--29 U.S. C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving …

Understanding The Value Of Judicial Diversity Through The Native American Lens, Paige E. Hoster

American Indian Law Review

No abstract provided.

"[This] I Know From My Grandfather:" The Battle For Admissibility Of Indigenous Oral History As Proof Of Tribal Land Claims, Hope M. Babcock

American Indian Law Review

A major obstacle indigenous land claimants must face is the applicationof federal evidentiary rules, like the hearsay doctrine, which block the useof oral history to establish legal claims. It is often oral history and storiesthat tribes rely upon as evidence to support their claims, reducingsubstantially the likelihood of a tribe prevailing. Indigenous oral historypresents unique challenges to judges when faced with its admissibility.Canadian courts have largely overcome these challenges by interpretingevidentiary rules liberally, in favor of the aborigines. As such, Canadianaborigines have enjoyed greater land claim success than indigenousclaimants in the United States, raising the question why United Statescourts do …

Sword Or Submission? American Indian Natural Resource Claims Settlement Legislation, Benjamin A. Kahn

American Indian Law Review

No abstract provided.

The Ball Is In Congress's Court: Contract Support Costs Following Ramah, James J. Linhardt

American Indian Law Review

No abstract provided.

Winner, Best Appellate Brief In The 2012 Native American Law Student Association Moot Court Competition, Jocelyn Jenks, Jacquelyn Amour Jampolsky

American Indian Law Review

No abstract provided.