Courts Commons^™

From Pedagogical Sociology To Constitutional Adjudication: The Meaning Of Desegregation In Social Science Research And Law, Anne Richardson Oakes

Michigan Journal of Race and Law

In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This Article explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. …

Is A Burrito A Sandwich? Exploring Race, Class, And Culture In Contracts, Marjorie Florestal

Michigan Journal of Race and Law

A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts-so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on "common sense" and a single definition of sandwich-"two thin pieces of bread, …

Renorming Immigration Court, Stacy Caplow

Faculty Scholarship

No abstract provided.

Towards Global Convenience, Fairness, And Judicial Economy, J. S. Hill

Vanderbilt Journal of Transnational Law

The Supreme Court held in Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., that federal district courts can dismiss cases under forum non conveniens before determining jurisdiction. The facts of Sinochem did not allow the Court to determine whether a court may conditionally dismiss under "forum non conveniens" before determining jurisdiction, but this Note argues that district courts should be able to do so. The issue of conditional dismissal before jurisdiction arises only where subject matter or personal jurisdiction is difficult to determine, "forum non conveniens" factors weigh heavily in favor of dismissal, and the district court intends to …

Likelihood Of Using Drug Courts: Predictions Using Procedural Justice And The Theory Of Planned Behavior, Evelyn M. Maeder, Richard L. Weiner

Department of Psychology: Faculty Publications

The current research compares two theoretical models borrowed from social psychology (theory of planned behavior and procedural justice) to predict intentions to make use of a drug court. Medicaid-eligible substance users answered a number of questions regarding their intentions to use a drug court in the future, including items from planned behavior and procedural justice scales. When procedural justice was considered alone, only trustworthiness predicted intention to use drug courts. When planned behavior was considered alone, only deliberative attitudes predicted the intention. After combining the two models, deliberative attitudes from the theory of planned behavior were the only significant predictor …

Introduction, Rachel Kalman

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Never Ending Seizure Order: How Courts Have Granted Immortality To Congress's Mayfly, Steven N. Baker

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Virginia Judicial System: Organization And Structure, W. Clark Williams Jr.

Law Faculty Publications

No abstract provided.

Not Hearing History: A Critique Of Chief Justice Robert’S Reinterpretation Of Brown, Joel K. Goldstein

All Faculty Scholarship

In the principal opinion in Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts invoked Brown v. Board of Education to bolster his view that the United States Constitution forbids the use of virtually all racial classifications. In its closing paragraphs, the plurality opinion claimed that the NAACP attorneys in Brown subscribed to an anticlassification view of the Constitution and that the Court adopted that view. Far from hearing history, the Chief Justice’s opinion sought to rewrite it. The discussion ignored the historic context in which Brown was argued and based its argument on extracting …

Making The Law: Unpublication In The District Courts, Hillel Y. Levin

Scholarly Works

In recent years, one particular area of focus for legal scholars concerned about the increasing privatization and opacity of courts has been the issue of systematic unpublication of judicial opinions by the appellate courts. Judges have issued dueling opinions on the constitutionality of the practice and traded polemics on its appropriateness. Practitioners – whose voices often seem lost (or at least muted) on issues like this – are in the thick of the debate. No longer merely academic, this debate has even spawned a change in the rules of appellate procedure (one that amusingly pulled off the difficult feat of …

A Near Term Retrospective On The Al-Dujail Trial & The Death Of Saddam Hussein, Michael A. Newton

Vanderbilt Law School Faculty Publications

Saddam Hussein al-Tikriti died at the hands of Iraqi officials at dawn on December 30, 2006, following a tumultuous fourteen month trial3 for crimes committed against the citizens of a relatively obscure Iraqi village known as al-Dujail.4 Maintaining his façade of disdain when the verdict and sentence were announced on November 5, 2006, Saddam entered the courtroom with an arrogant strut and refused to stand until the guards made him do so to hear the judge’s opinion.5 When Saddam interrupted the reading of the verdict, Judge Ra’ouf Rasheed Abdel Rahman turned down the volume of his microphone and spoke over …

Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Chief judges wield power. Among other things, they control judicial assignments, circulate petitions to their colleagues, and manage internal requests and disputes. When exercising this power, do chiefs seek to serve as impartial court administrators or do they attempt to manufacture case outcomes that reflect their political beliefs? Because chiefs exercise their power almost entirely outside public view, no one knows. No one sees the chief judge change the composition of a panel before it is announced or delay consideration of a petition for en banc review or favor the requests of some colleagues while ignoring those of others. Chiefs …

Book Review Of Establishing Justice In Middle America: A History Of The United States Court Of Appeals For The Eighth Circuit, Scott Dodson

Faculty Publications

This book review of Jeffrey Morris’s Establishing Justice in Middle America argues that although Morris makes an important contribution to the understudied Court of Appeals for the Eighth Circuit, he fails to engage the reader in the personalities that populated the court, eschews the development of coherent themes running through the court’s membership changes and temporal scope, and omits important cases that helped define the court as an independent judicial body.

Judicial Nullification? Judicial Compliance And Non-Compliance With Jury Improvement Efforts, Paula Hannaford-Agor

Faculty Publications

The present article explores the formal and informal factors that contribute to variation in state and local jury trial practices, and especially judicial compliance with mandatory practices and prohibitions. Part II describes the State-of­ the-States Survey of Jury Improvement Efforts, its methodology, and its basic findings concerning the variation in use of different trial practices. Part III discusses how various formal and informal factors affect the judicial use of those practices. Because the practice of permitting jurors to submit written questions to witnesses has received greater attention, and generated greater debate and dissension in both case law and state and …

No Two-Stepping In The Laboratories: State Deference Standards And Their Implications For Improving The Chevron Doctrine, Michael Pappas

Publications

No abstract provided.

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

Publications

No abstract provided.

State Courts Unbound, Frederic M. Bloom

Publications

We may not think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine, and often it is the Court itself that has invited them to.

This Article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they emerge. …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

The Early History Of The Colorado Court Of Appeals, Robert M. Linz, Claire E. Munger

Publications

No abstract provided.

Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins

Faculty Publications

This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive …

Perpetual Dissents, Allison Orr Larsen

Faculty Publications

No abstract provided.

Congress's Power To Block Enforcement Of Federal Court Orders, Jennifer Mason Mcaward

Journal Articles

This Article considers the constitutionality and propriety of recent appropriations riders passed by the House of Representatives in response to controversial federal court rulings. The riders prohibit the use of any federal funds for the enforcement of court orders issued in specified cases. These enforcement-blocking provisions raise significant separation-of-powers concerns as between Congress and both coordinate branches of the federal government.

The Article begins by looking at the controversial First Amendment rulings that triggered the enforcement-blocking riders, and the Congressional debates over the proper way to respond to the rulings. The riders are not merely symbolic protests, but could have …

When All Eyes Are Watching: Trial Characteristics And Practices In Notorious Trials, Paula Hannaford-Agor

Faculty Publications

In part because of their relative scarcity and the uniqueness of each new notorious trial, it is difficult to generalize the effects of trial notori­ety. However, a recent study by the National Center for State Courts Center for Jury Studies reveals infor­mation about the prevalence of notorious trials and their impact on trial procedures and practices. The State-of-the-States Survey of Jury Improvement Efforts collected trial reports from nearly 12,000 jury trials conducted in state and federal courts in all 50 states and the District of Columbia. The vast majority of trials took place between 2002 and 2006.

In the survey, …

The Challenge Of Comparative Civil Procedure, Scott Dodson

Faculty Publications

This Essay reviews Civil Litigation in Comparative Context (West 2007), by Oscar G. Chase, Helen Hershkoff, Linda Silberman, Yasuhei Taniguchi, Vincenzo Varano, and Adrian Zuckerman. It also identifies some areas of exceptionalist American civil procedure that recently have been converging towards global norms and argues that those convergences, if they continue, could render comparative studies particularly meaningful.

Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon

Vanderbilt Law Review

Grutter v. Bollinger is familiar to American lawyers, academics, and law students as the Supreme Court decision allowing the consideration of race in law school admissions.1 Grutter's procedural history is nearly as noteworthy as its substantive holding. The University of Michigan Law School, after losing in federal district court, appealed to the U.S. Court of Appeals for the Sixth Circuit. Three Democratic appointees were assigned to the panel: Judges Karen Nelson Moore and Martha Craig Daughtrey, who had heard an earlier interlocutory appeal, and Chief Judge Boyce Martin, who replaced the designated district judge from the earlier panel. The white …

Scrutiny Land, Randy E. Barnett

Michigan Law Review

Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined …

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow

Michigan Law Review

In Indianapolis v. Chase National Bank, 1941, the Supreme Court established the doctrine of realignment, requiring federal courts to examine the issues in dispute and realign each party as plaintiff or defendant if necessary. Due to the complete diversity requirement, realignment gave the federal courts the ability to both create and destroy diversity jurisdiction. Since 1941, the federal courts have struggled to interpret the central holding in Indianapolis, and have created several competing "tests" for realignment. This confusion has made the doctrine of realignment unworkable. Realignment along with each of the present tests-encourages jurisdictional abuses by forcing the federal …

Patients As Consumers: Courts, Contracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider

Michigan Law Review

The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's oncepromising answer-managed care-has been politically ravaged, and consumerist solutions are now winning favor This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers'pricesa nd providers' actual costs. Perhaps because they do not understand the healthcare market, courts generally enforce these …

Focus On Batson: Let The Cameras Roll, Mimi Samuel

Faculty Articles

While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in …