Courts Commons^™

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

William & Mary Bill of Rights Journal

More than 40 years ago, President Jimmy Carter, a Democrat, appointed 15 of the then-23 judges of the Ninth Circuit Court of Appeals. Those judges were predominantly liberal, and some were extremely liberal. Ever since then, the Ninth Circuit has been widely regarded as “a reliably liberal appeals court” that predictably issues “rulings favorable to liberal causes.” But some knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether the Ninth Circuit is indeed the liberal bastion that it is reputed to be. That is the …

A Conversation Piece About Implementing Inuit Legal Orders Into The Nunatsiavut Government's Inuit Court, Elizabeth Zarpa

LLM Theses

A majority of Inuit reside above the 55th parallel in 51 communities throughout Nunatsiavut, Nunavik, Nunavut and Inuvialuit. This area is Inuit Nunangat and each of these Inuit regions has their own modern treaty. The political and legal history of the evolution of these modern treaties is under-represented within educational institutions. Breathing life into and contextualizing this history is integral when revitalizing Inuit legal orders. There is space to implement Inuit legal orders into the governing structures throughout Inuit Nunangat. This thesis highlights that published and publicly accessible Inuit stories embodies law. Law from the stories is applicable to governance …

Courts Without Court, Andrew G. Ferguson

Vanderbilt Law Review

What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …

The Emerging Authority Of Magistrate Judges Within U.S. District Courts, Tracey E. George, Christina L. Boyd, Albert H. Yoon

Vanderbilt Law School Faculty Publications

The federal judicial system is a hierarchy with district courts at the bottom, courts of appeals in the middle, and the Supreme Court at the top. A second, less visible, judicial hierarchy exists within district courts, with magistrate judges situated below district judges. Existing scholarship largely ignores magistrate judges, assuming they are agents tasked with procedural matters with little independent effect on federal courts adjudication. Using a combination of national administrative data (2000–2016) and original case-level data from nine district courts (1997–2014), we find that district courts not only grant meaningful responsibility and discretion to magistrate judges but do so …

Circuit Personalities, Allison Orr Larsen, Neal Devins

Faculty Publications

The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even selfimposed circuit nicknames. In this Article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality …

The Various Problems And Instabilities With The Implementation Of The Special Immigrant Juvenile Status Statute, Calli Schmitt

Cardozo Journal of Equal Rights & Social Justice

The note examines the Special Immigrant Juvenile Status (SIJS) statute, highlighting its purpose to protect vulnerable immigrant children who have been abused, neglected, or abandoned. However, the implementation of SIJS faces significant challenges, including inconsistent state court interpretations, political interference, and visa backlogs, which undermine its humanitarian goals. The note proposes reforms to address these issues and ensure that SIJS beneficiaries receive the protections and pathways to permanent residency intended by Congress.

Men's Rights, Gun Ownership, Racism, And The Assault On Women's Reproductive Health Rights: Hidden Connections, Walter S. Dekeseredy

Dignity: A Journal of Analysis of Exploitation and Violence

In this current era characterized by much fear of, and anxiety about, the political influence and actions of the U.S. alternative right (alt-right), only a small number of men’s rights organizations receive attention from the media, the Democratic Party, or a large cadre of progressives. This article demonstrates that ignoring all-male anti-feminist organizations is a flawed strategy for challenging the recent rise of the alt-right because these misogynistic groups are heavily involved in the gun rights movement, major contributors to racist practices and discourses, and active participants in efforts to criminalize and curtail women’s access to abortion. Another, but equally …

Overcoming The Peremptory's Greatest Challenge, Brian A. Wilson

Faculty Scholarship

Four decades after the Supreme Judicial Court ("SJC") first proscribed certain group-based peremptory challenges, eradicating unlawful discrimination in jury selection has gained renewed interest. Yet so long as Massachusetts retains the inherently flawed three-step "Batson-Soares" test, lawyers seeking to exclude jurors for impermissible reasons will proceed virtually undeterred.

The solution is not to abolish peremptory challenges, as Arizona did in 2022. When exercised lawfully, they enable litigants to remove jurors they legitimately perceive as biased where a challenge for cause, due to its narrow scope, legally cannot. Eliminating peremptories would provide the parties little opportunity to influence who decides the …

Protecting Ma And Pa: Bond Workouts And The Trust Indenture Act In The 21st Century, Stephen J. Lubben

Cardozo Law Review

Revlon, the well-known cosmetics manufacturer, has labored under a massive debt load since the 1980s, when it was the subject of a classic hostile takeover battle. As with many recent distressed firms, it decided to address its debt not through the Bankruptcy Code and chapter 11, but rather in an “exchange offer.” That is, it offered to buy its old bonds back with an offer of new securities. One implication of its decision to proceed this way was that it was able to pay its retail bondholders much less than its institutional bondholders.

The Trust Indenture Act of 1939 was …

Brief Of Religious Liberty Scholars And Employment Law Scholars As Amici Curiae In Support Of Petitioner, Douglas Laycock, John A. Meiser, Richard W. Garnett

Court Briefs

No. 22-174
Gerald E. Groff v. Louis DeJoy

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit

From the Summary of Argument

This case is an ideal vehicle for correcting an error that has undermined protection for religious workers across the country, in defiance of clear statutory text and underlying principles of religious liberty.

A Reflection Of Canadian Society? An Analysis Of Federal Appointments To Provincial Superior Courts By The Liberal Government Of Justin Trudeau, Erin Crandall

Dalhousie Law Journal

Recent reforms to Canada’s system of federal judicial appointments have sought to make the process more transparent and better able to produce a bench reflective of the society it serves. This paper reviews these reforms and using judicial appointment data (2016–2020), considers whether the Liberal government has met these objectives. The relationship between official bilingualism and representation on the bench is also considered. The paper finds that “diversity” on Canada’s federally appointed provincial courts remains unbalanced. While women have made up the majority of appointments since the Trudeau Liberals formed government in 2015, other equity-deserving groups, like people of colour …

Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger

The Cardinal Edge

No abstract provided.

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs-Appellants, John A. Meiser, Francesca Genova Matozzo

Court Briefs

No. 22-11674
Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama

Appeal from the United States District Court for the Southern District of Alabama No. 1:16-cv-00395

From the Summary of the Argument

This Court already corrected the district court’s errant understanding of RLUIPA’s substantial-burden analysis once in this case. Unfortunately, a second correction is needed now.

In Thai Meditation Association’s first appeal, this Court explained that “the district court misread our opinion in Midrash” and, as a consequence, had erroneously required the Association to show that the government “completely prevent[ed]” its religious exercise in order to demonstrate …

Brief Amicus Curiae Of The National Congress Of American Indians, A Tribal Elder, The International Council Of Thirteen Indigenous Grandmothers, And The Mica Group Supporting Plaintiff-Appellant And En Banc Rehearing, Stephanie Hall Barclay, Francesca Matozzo

Court Briefs

No. 21-15295
Apache Stronghold v. United States of America

Appeal from the United States District Court for the District of Arizona, Honorable Steven P. Logan (2:21-cv-00050-PHX-SPL)

From the Summary of the Argument

Meaningful access to sacred sites such as Oak Flat is an indispensable part of many Indigenous tribes’ religious exercise. Nonetheless, the government has repeatedly denied necessary access and even destroyed such sites, thus thwarting the ability of tribal members to exercise core aspects of their spiritual practices. The tribal members in this case face the same fate.

Defining “Different”–How Distinctive Methods Of Textual Interpretation Led To The Abduction Enhancement Circuit Split, Adam Manaa

Pepperdine Law Review

This note examines the federal circuit courts’ differing approaches to interpreting the robbery abduction enhancement in the United States Sentencing Guidelines. Specifically, this note sets forth how the Sixth Circuit’s strict method of textual interpretation in United States v. Hill led to the erroneous holding that the term “different location” refers to “a place different from the store that is being robbed.” This note argues the court should have taken a more holistic interpretative approach, taking the underlying purpose of the Guidelines into account.

Living In A Legal Limbo: Mechanisms To “Fix” The Legal And Social Positions Of Unregistered Children In Indonesia, Hoko Horii, Theresia Dyah Wirastri

The Indonesian Journal of Socio-Legal Studies

This paper examines the reasons and consequences of a lacking birth-registration in Indonesia, as well as the mechanisms to ‘fix’ it. In order to avoid the legal and social consequences of the lack of registration, creative and ad-hoc solutions are crafted – not only by the individual families who face the problem, but also by their community, including local and state actors who are involved in the mechanisms and paperwork. These mechanisms exist also because of state’s reluctance to enforce regulation related to unregistered marriage and children born into unregistered marriage as these matters are religiously and culturally delicate. We …

Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti

Marquette Law Review

Originalism is nothing new. And the New Jersey Supreme Court’s 1780 decision in Holmes v. Walton shows it. In that case, the New Jersey Supreme Court disallowed a state law as repugnant to the state constitution because the law permitted a jury of only six to render a judgment. To reach that result, the court looked to the fixed, original meaning of the jury trial guarantee embedded in the state constitution, and it then constrained its interpretive latitude in conformity with that fixed meaning. Holmes thus cuts against the common misconception that originalism as an interpretive methodology is a modern …

Regulation Weakness And Lack Of Public Awareness Has Impeded The Implementation Of Environmental Policies In Saudi Arabia, Nada Gurmalla Algamdy

Dissertations & Theses

This research aimed to substantially illustrate that the weakness of environmental regulations and lack of public participation in urban planning alongside poor public awareness in Saudi Arabia has inhibited the implementation of environmental policies across this region. To study these issues, this research compared the Kingdom of Saudi Arabia (“KSA”) to the United States (“US”) building on numerous studies to illustrate how the identified weaknesses correlate with weak or ineffective environmental policies. It is well known that it would be better to use a European country “because it's known that the EU has tough environmental measures" as a model for …

Public Access To Online Hearings, Jérémy Boulanger-Bonnelly

Dalhousie Law Journal

The open court principle faced a significant challenge when courthouses closed their doors to limit the spread of COVID-19. The shift to online hearings in many jurisdictions generated new avenues for public access but also raised concerns for the privacy and security of individuals, and for the administration of justice. Building on existing principles and a review of the measures adopted by courts in Canada, the United Kingdom, the United States, and Australia during the pandemic, this paper seeks to identify best practices to preserve an appropriate balance between openness and competing interests in the online environment. It concludes that …

If I Had More Time, Would I Have Written A Shorter And Faster Decision? An Empirical Examination Of The Evolution Of Trial Court Decisions, Jon Khan

Dalhousie Law Journal

This article draws from my 2019 LLM thesis on Canadian judicial decisions, where I sought to understand two things: how current approaches to judicial decision-writing may impact access to justice and how might we make decisions a better source of data while also making them more timely, concise, accessible, and consistent. It presents the results and analysis of an original empirical study of the evolution of British Columbia trial decisions over 40 years (1980–2018). It argues that the current process for writing Canadian judicial decisions likely does not further the goals of access to justice and may even hinder them. …