Judges Commons^™

Regulating From The Ground Up: Controlling Financial Institutions With Bank Workers’ Unions, Emma Cusumano

Law Student Publications

In the Wells Fargo accounts scandal, millions of banking accounts were created for customers without their consent. The scandal cost Wells Fargo customers millions of dollars in direct and indirect charges. Investigations revealed that employees were pressured into creating these false accounts through abusive banking practices promulgated from the top. These practices are not unique to Wells Fargo; instead, they are ubiquitous in the financial services industry.

Current financial regulations do not adequately address how to mitigate banks’ harmful practices. This comment explores the premise that bank worker unionization could serve as a much-needed check on the power of financial …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making? One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

Rwu Law News: The E-Newsletter Of Roger Williams University School Of Law January 2019, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Licensing Paralegals To Practice Law: A Path Toward Bridging The Justice Gap In Minnesota, Conner Suddick

Departmental Honors Projects

There are few legal avenues for low-income and other marginalized groups in the United States to seek civil justice. A lack of legal assistance in civil issues can be detrimental to a person’s health and wellbeing. Given this reality, the legal profession must broaden its capacity to serve these needs, and one path is to embrace the aid of paralegals. In 2016, the legal community of Minnesota had conversations about whether the state should provide limited licenses to paralegals. To study models from across the country, the Minnesota State Bar Association (MSBA) formed the Alternative Legal Models Task Force. In …

Evaluating Judicial Standards Of Conduct In The Current Political And Social Climate: The Need To Strengthen Impropriety Standards And Removal Remedies To Include Procedural Justice And Community Harm, Joshua E. Kastenberg

Faculty Scholarship

Chief Justice Warren Burger warned that when “people who have long been exploited . . . come to believe that courts cannot vindicate their legal rights from fraud,” an “incalculable damage [is done] to society.”

Part I of this Article presents an examination of the current common frameworks shared by the states for addressing judicial conduct appealing to popular social and political influences. Included in this section is an analysis of the interrelationship between implicit bias and impropriety, as well as on community harm and procedural justice.

Part II provides both a historical and contemporary analysis of “populism,” including the …

The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman

University of Richmond Law Review

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax—commonly called the “tampon tax”—represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous …

Evaluating A Permanent Court Solution For International Investment Disputes, Emily Palombo

University of Richmond Law Review

Despite the original objective of investor state dispute settlement (“ISDS”)—to create an unbiased arbitration mechanism to resolve conflicts between states and foreign investors—ISDS tribunals have gained the reputation of being one-sided, nontransparent, and inconsistent in decisions rendered. A major reform proposed to address the criticism of ISDS is the creation of one permanent tribunal, rather than numerous ad hoc tribunals constituted separately for each investment dispute. Discussion of ISDS reform in light of its historical context poses the question: is ISDS really a broken system, or have our global priorities and concerns changed over time? While improvements can be made, …

Superficial Proxies For Simplicity In Tax Law, Emily Cauble

University of Richmond Law Review

Simplification of tax law is complicated. Yet, political rhetoric surrounding tax simplification often focuses on simplistic, superficial indicators of complexity in tax law such as word counts, page counts, number of regulations, and similar quantitative metrics. This preoccupation with the volume of enacted law often results in law that is more complex in a real sense. Achieving real simplification—a reduction in costs faced by taxpayers at various stages in the tax planning, tax compliance, and tax enforcement process—often requires enacting more law, not less. In addition, conceptualizing simplicity in simplistic terms can leave the public vulnerable to policies advanced under …

The Historical Case For Constitutional "Concepts", Glenn E. Chappell

University of Richmond Law Review

The concepts/conceptions dichotomy is prominent in both the philosophy of language and the field of constitutional interpretation. It is most prominently illustrated through the provisions in the Constitution that contain broad, open-ended moral language. Those who hold the “conceptions” view believe that the legal content of those provisions includes both abstract moral concepts and its communicators’ subjective beliefs about, or conceptions of, how those concepts should apply. Under this view, the judge’s role is mostly empirical: he is tasked with examining historical evidence to ascertain those conceptions, which in turn supply applicational criteria by which he can decide specific cases. …

Hallows Lecture: Ambition And Aspiration: Living Greatly In The Law, Lee H. Rosenthal

Marquette Law Review

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Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone

Marquette Law Review

This Article studies statutory interpretation as it is practiced in the federal

courts of appeal. Much of the academic commentary in this field focuses on the

Supreme Court, which skews the debate and unduly polarizes the field. This

Article investigates more broadly by looking at the seventy-two federal

appellate cases that cite King v. Burwell in the two years after the Court issued

its decision. In deciding that the words “established by the State” encompass

a federal program, the Court in King reached a pragmatic and practical result

based on statutory scheme and purpose at a fairly high level of …

Private Ordering And Improving Information Flow To The Board Of Directors: The Duty To Inform Bylaw, Jennifer O'Hare

University of Richmond Law Review

It seems that almost every day there is another report of a corporate scandal at a public company. Whether the scandal involves sexual harassment by senior management or widespread illegal conduct by employees, the first question asked by investors and the media is usually, “Where was the board?” And the board’s response is almost always, “We didn’t know.” Directors of public companies rely on officers to provide the information the board needs to manage the corporation, but, strangely enough, officers may not even be legally required to provide information to the board. The Delaware General Corporation Law is silent on …

On Opioids And Erisa: The Urgent Case For A Federal Ban On Discretionary Clauses, Katherine T. Vukadin

University of Richmond Law Review

The American opioid epidemic cuts across all social divisions, touching the employed and unemployed. Those with private health insurance are one of the fastest-growing affected groups, but this group struggles most to get care. Despite their insured status, the privately-insured received treatment at half the rate of those with Medicaid and at even lower rates than the uninsured. This article focuses on a significant barrier to treatment for those in employer sponsored benefit plans: the discretionary clause. A discretionary clause grants the decision maker broad latitude and ensures that any federal court review is deferential. Claims processing in such a …

Of Hats And Robes: Judicial Review Of Nonadjudicative Article Iii Functions, Jeffrey L. Rensberger

University of Richmond Law Review

We are accustomed to thinking of Article III courts and judges deciding cases and controversies. But, federal judges and courts have historically also engaged in official but nonadjudicative activities. In addition to a history of federal judges serving on nonjudicial commissions, federal judges and the Supreme Court participate in the rulemaking process for the federal procedural and evidentiary rules. Although some argue to the contrary, the Supreme Court has approved such arrangements in the face of separation of powers objections. Since Article III officers and courts perform nonadjudicative duties, the question arises of how federal courts who address a challenge …

Obtaining And Enforcing A Security Interest In Local Currency Under Article 9 Of The Ucc, Marina C. Leary

University of Richmond Law Review

Community currency is known by many names including complementary currency, alternative currency, and parallel currency. Community currency operates alongside an official or national currency (e.g., dollars or euros) with the purpose of circulating within a small geographic area to facilitate the sale of goods and services. In other words, community currency refers to a privatized form of currency that is not backed by a government entity. With the increased use of community currency, it has the potential to serve as collateral for a security interest under the Article 9 of the Uniform Commercial Code. Although there are several types of …

Regulating From The Ground Up: Controlling Financial Institutions With Bank Workers’ Unions, Emma Cusumano

University of Richmond Law Review

In the Wells Fargo accounts scandal, millions of banking accounts were created for customers without their consent. The scandal cost Wells Fargo customers millions of dollars in direct and indirect charges. Investigations revealed that employees were pressured into creating these false accounts through abusive banking practices promulgated from the top. These practices are not unique to Wells Fargo; instead, they are ubiquitous in the financial services industry.

Current financial regulations do not adequately address how to mitigate banks’ harmful practices. This comment explores the premise that bank worker unionization could serve as a much-needed check on the power of financial …

Partnership Lost, Christine Hurt

University of Richmond Law Review

A century ago, two distinct business entities existed that could best be defined by describing either one of them as simply not the other. The corporation and the general partnership were mirror images of one another and opposites on a spectrum of corporate governance, limited liability, and taxation. Partnerships, seen as small, livelihood enterprises between active-owner partners, had personal liability but pass-through taxation. Corporations, seen as larger, capital-intensive enterprises with passive-owner shareholders, had limited liability but double taxation. The tax distinctions survive today, but the stereotypical partnership does not; in fact, the modern partnership is more corporation-like than partnership-like.

Today, …

Informal Judicial Hierarchies: Case Assignment And Chamber Composition At The European Court Of Justice, Jens Frankenreiter

Scholarship@WashULaw

Is there a rationale behind non-random case assignment at the European Court of Justice (ECJ)? I argue that the flexible system of case assignment acts as a surrogate for a full-fledged judicial hierarchy, ensuring that the decision-making of the Court reflects the preferences of the majority of judges absent many hierarchical elements commonly observed in other judicial systems. I empirically test this hypothesis using Monte Carlo simulations of the composition of chambers during the time period 2009-2012 under alternative case assignment regimes. To proxy for judicial ideology, I use information on the political preferences of appointing Member State governments vis-à-vis …

Evaluating A Permanent Court Solution For International Investment Disputes, Emily Palombo

Law Student Publications

Despite the original objective of investor state dispute settlement (“ISDS”)—to create an unbiased arbitration mechanism to resolve conflicts between states and foreign investors—ISDS tribunals have gained the reputation of being one-sided, nontransparent, and inconsistent in decisions rendered. A major reform proposed to address the criticism of ISDS is the creation of one permanent tribunal, rather than numerous ad hoc tribunals constituted separately for each investment dispute. Discussion of ISDS reform in light of its historical context poses the question: is ISDS really a broken system, or have our global priorities and concerns changed over time? While improvements can be made, …

The Most Revealing Word In The United States Reports, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such …

Filling The Ninth Circuit Vacancies, Carl Tobias

Law Faculty Publications

Upon Republican President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit experienced some pressing appellate vacancies, which the Administrative Office of the United States Courts (AO) carefully identified as “judicial emergencies” because the tribunal resolves a massive docket. Last year’s death of the iconic liberal champion Stephen Reinhardt and the late 2017 departure of libertarian former Chief Judge Alex Kozinski—who both assumed pivotal circuit leadership roles over numerous years—and a few of their colleagues’ decision to leave active court service thereafter, mean the tribunal presently confronts four judicial emergencies and resolves most slowly the largest …

Senator Chuck Grassley And Judicial Confirmations, Carl Tobias

Law Faculty Publications

Iowa Republican Senator Chuck Grassley finished his second term as Chair of the Senate Judiciary Committee with the early January 2019 adjournment of the 115th Congress. He was the first nonlawyer to lead the august committee over almost 200 years. A core panel duty is moving judicial nominees through the confirmation process, which helps senators discharge their constitutional advice and consent responsibility. Because the Chair plays an integral role—Grassley fulfilled this obligation in a critical, albeit controversial, manner—and because his service as Chair has ended, it is crucial to evaluate how the lawmaker discharged that important responsibility.

This Essay initially …

Managing Digital Discovery In Criminal Cases, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.

This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, …

Empirically Investigating Judicial Emotion, Terry A. Maroney

Vanderbilt Law School Faculty Publications

The empirical study of judicial emotion has enormous but largely untapped potential to illuminate a previously underexplored aspect of judging, its processes, outputs, and impacts. After defining judicial emotion, this article proposes a theoretical taxonomy of approaches to its empirical exploration. It then presents and analyses extant examples of such research, with a focus on how the questions they ask fit within the taxonomy and the methods they use to answer those questions. It concludes by identifying areas for growth in the disciplined, data-based exploration of the many facets of judicial emotion.

Proposed Reforms To Texas Judicial Selection: Panelist Remarks, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

I am going to set the stage by providing a little background about the various methods that States around the country use to select their judges. I am also going to remind us of many of the considerations that we like to think about when we are deciding which of these methods is best. And I am going to push upon you a new consideration that is sometimes not thought about in these discussions as well as share some data regarding this last consideration. But let’s start with some background about the selection methods.

There are basically four different ways …

No Longer A Second-Class Class Action? Finding Common Ground In The Debate Over Wage Collective Actions With Best Practices For Litigation And Adjudication, Scott A. Moss, Nantiya Ruan

Publications

Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions – requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized …

The Faith And Morals Of Justic Antonin Scalia, David F. Forte

Intercultural Human Rights Law Review

It is because of Justice Scalia's suspicion of philosophy and of history that he becomes an outspoken textualist. But why should text carry greater authority? Why should the written word, rather than evolving tradition, be of higher authority, particularly to a Roman Catholic? To understand Antonin Scalia's affirmation of the centrality of text, we must, as many already have, seek to find out how the man viewed his religion and how he practiced it.

Filling The California Ninth Circuit Vacancies, Carl Tobias

Law Faculty Publications

At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Officelabeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge AlexKozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.

Limited clarity about whether more judges will leave active service over Trump’s presidency …

Filling The New York Federal District Court Vacancies, Carl Tobias

Law Faculty Publications

President Donald Trump contends that federal appellate court appointments constitute his foremost success. The president and the United States Senate Grand Old Party (GOP) majority have compiled records by approving forty-eight conservative, young, accomplished, overwhelmingly Caucasian, and predominantly male, appeals court jurists. However, their appointments have exacted a toll, particularly on the ninety-four district courts around the country that must address eighty-seven open judicial positions in 677 posts.

One riveting example is New York’s multiple tribunals, which confront twelve vacancies among fifty-two court slots. The Administrative Office of the United States Courts considers nine of these openings “judicial emergencies,” because …

Teacher For The Nation, Daniel Epps

Scholarship@WashULaw

In these brief remarks, delivered at the Hastings Law Journal's Symposium on the Jurisprudence of Justice Kennedy, I discuss Justice Kennedy's impact on American law. I reflect on the events that led to Justice Kennedy's appointment to the Supreme Court and discuss his vision of the Justices as teachers for the nation and how that vision seems to have informed his view of judicial review.