Courts Commons^™

When Amicus Curiae Briefs Are Inimicus Curiae Briefs: Amicus Curiae Briefs And The Bypassing Of Admissibility Standards, David Dematteo, Kellie Wiltsie

American University Law Review

Amicus curiae briefs are being submitted at historically high levels by a range of individuals and entities, and there is compelling evidence that these briefs are highly influential in judicial decision-making, including in the Supreme Court of the United States. Although amicus curiae briefs have been an ingrained aspect of the U.S. legal system for hundred-plus years, various legal scholars, researchers, commentators, and judges, including Supreme Court Justices, have raised concerns about their use, including that amicus curiae briefs contain redundant information and often function as advocacy tools. This Article addresses an aspect of amicus curiae briefs that has received …

Bastions Of Independence Or Shields Of Misconduct?: Increasing Transparency In Judicial Conduct Commissions, Katarina Herring-Trott

Fordham Law Review

No abstract provided.

Bottom-Rung Appeals, Merritt E. Mcalister

Fordham Law Review

There are “haves” and “have-nots” in the federal appellate courts, and the “haves” get more attention. For decades, the courts have used a triage regime under which they distribute judicial attention selectively: some appeals receive a lot of judicial attention, and some appeals receive barely any. What this Article reveals is that this triage system produces demonstrably unequal results, depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce significant disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length …

Carceral Deference: Courts And Their Pro-Prison Propensities, Danielle C. Jefferis

Fordham Law Review

Judicial deference to nonjudicial state actors, as a general matter, is ubiquitous, both in the law and as a topic of legal scholarship. But “carceral deference”—judicial deference to prison officials on issues concerning the legality of prison conditions—has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy. This Article contextualizes carceral deference historically, politically, and culturally, and it thus adds a piece that has been missing from the literature. Drawing on primary and secondary historical sources and anchoring the analysis in Bourdieu’s field theory, this Article is an important step to …

The Application Of Law As A Key To Understanding Judicial Independence, Tahirih V. Lee

FIU Law Review

Judges across China recently declined to apply a law that the National People’s Congress had newly brought into effect. In this article, I describe this startling finding and explore the significance of it. I conclude that it represents an exercise of judicial independence. Using a thickly descriptive approach that focuses on textual analysis and institutional context, I demonstrate that judges in China have no legal duty to apply law and that it is professionally risky for them to apply law; that judges there operate within a professional culture that encourages restraint; and that the court system has developed a strong …

Save Your Rights: How Florida And Other States Have Targeted Voting Access Following The 2020 Election, Francisco Varona

FIU Law Review

Following the 2020 general election, Florida’s Republican led legislature introduced Senate Bill 90 (“S.B. 90”), which seeks to put many restrictions on various aspects of the voting process. S.B. 90 limits ballot drop-off boxes, restricts mail-in voting, proscribes “line-warming,” increases registration difficulty, and expands identification requirements. Despite lauding Florida’s election as a gold standard for the rest of the country, Governor Ron DeSantis approved this bill in May of 2021, explaining that Florida should not become complacent despite its success. The Republican Governor approved this law against the backdrop of record voter turnout for Black and Latino voters and record …

How Florida’S Courts Should Evaluate The Admissibility Of Field Sobriety Testing And Blood Thc Levels Evidence In Marijuana Impaired Driving Prosecutions, Christopher Bomhoff

FIU Law Review

Field sobriety and blood alcohol concentration tests are proven reliable techniques to determine whether a person us under the influence of alcohol. No such technique has been developed to reliably determine whether a person is under the influence of marijuana. However, despite a lack of scientific consensus regarding the reliability of field sobriety and blood toxicology tests to determine marijuana impairment, these methods are routinely used as evidence of guilt in marijuana impaired driving prosecutions. Twenty-four states have legalized the recreational use of marijuana, and Florida appears to be set to join them in the near future. As a result …

Lawyerless Law Development, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Utah Law Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer accommodation, information, and process simplification to people without legal representation.

Until now, scholars have known little about judicial behavior in lawyerless courts, including whether and how judges are implementing role reform recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear—and the discretionary power they wield—in dispensing justice for millions of unrepresented people each year. While today’s …

Court Reform And The Promise Of Justice: Lessons From Reconstruction, David H. Gans

Lewis & Clark Law Review

The Supreme Court is broken. How should we fix it? This Article argues that Reconstruction, a period in American history when the role of the Supreme Court in American life was hotly debated and Congress repeatedly took steps to reform the courts, provides important and underappreciated lessons.

Reconstruction’s model makes clear that when the Supreme Court runs roughshod over constitutional rights, Congress need not sit on the sidelines. Rather, the Constitution gives it powerful tools of reform. Congress can (1) change the composition of the Court, (2) alter its jurisdiction and regulate its proceedings, and (3) use its express enforcement …

Necessary Necessity: Courts’ Historical Assessment Of The Condition Precedent For Martial Law, Eric Merriam

Oklahoma Law Review

No abstract provided.

Accessing Justice With Zoom: Experiences And Outcomes In Online Civil Courts, Victor D. Quintanilla, Kurt Hugenberg, Ryan Hutchings, Nedim Yel

Articles by Maurer Faculty

The global COVID-19 pandemic brought significant change to our civil justice system, particularly in the rapid shift from in-person to remote court proceedings. Courts across the country, facing the unprecedented challenge of a global health emergency, embraced rapid innovation and the adoption of remote proceeding platforms, such as Zoom and Webex. State courts did so across case types, including within high-volume civil dockets containing evictions, debt collections, small claims, and family law cases, where millions of self-represented and unrepresented litigants encounter the U.S. civil justice system each year. Amid the pandemic, voices converged to encourage these justice innovations, including the …

Judges For Sale: The Effect Of Campaign Contributions On State Criminal Courts, Arturo Romero Yáñez, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Do campaign contributions impact democratic processes? Using donation data from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants.

We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as those based on professional, ideological, political, or personal ties. …

New York Mental Hygiene Law Article 81 Proceedings: A Proposal To Better Protect The Best Interests Of An Alleged Incapacitated Person, Casey Marsh

Touro Law Review

Guardianship proceedings under New York Mental Hygiene Law Article 81 are intended to protect the personal needs and property management of an alleged incapacitated person. A guardian appointed for a person is responsible for making decisions in line with the best interests and wishes of his or her ward. While guardians serve a very important purpose, the current procedures of guardianship proceedings allow too much room for family members to bring a proceeding without the alleged incapacitated person’s best interests in mind. Often, people bring guardianship proceedings to fish for information on family members or to circumvent a future Surrogate’s …

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court, 2020-2022, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile …

Problems With Authority, Amy J. Griffin

Georgetown Law Faculty Publications and Other Works

Judicial decisionmaking rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Despite the central role of such rules in judicial decisionmaking, we lack a good account of how they are created, revised, and enforced. There is something paradoxical and troubling about the notion that the rules of the game are determined by the players as they play the game according to those rules. Because weight-of-authority rules are largely informal and almost entirely unwritten, we don’t even …

Is Disclosure And Certification Of The Use Of Generative Ai Really Necessary?, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown

Faculty Scholarship

No abstract provided.

Judicial Management Inside The Courts, Marin K. Levy

Faculty Scholarship

No abstract provided.

#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez

Faculty Scholarship

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district …

A New Era At The Court Of International Trade: Endemic, Executive Orders, And Enforcement, Timothy Meyer

Faculty Scholarship

No abstract provided.

Views Of The Irish Judiciary On Technology In Courts: Results Of A Survey, Brian M. Barry Dr, Rónán Kennedy Dr

Articles

Technology continues to transform how judges perform their functions, both in Ireland and elsewhere. This article reports the results of a survey of Irish judges on their use of technology in their role, their attitudes towards technology, and their views on how it impacts on the judicial function. The survey, part of a global survey, found that Irish judges habitually used digital technologies, and were broadly satisfied with the technology available in chambers, but less so with what was provided in courtrooms. Although generally happy to embrace change, the majority of respondents were concerned with, and did not prefer, online …