Courts Commons^™

Brief For Amicus Curiae Professor Derek T. Muller In Support Of Respondents, Daniel M. Sullivan, Daniel M. Horowitz, Derek T. Muller

Court Briefs

No. 21-1271
Timothy K. Moore v. Rebecca Harper

On Writ of Certiorari to the Supreme Court of North Carolina

From the Summary of Argument

The petition for certiorari in this case presents the question whether the phrase “Legislature thereof” in the Elections Clause of the Constitution bars state courts from regulating the contours of Congressional redistricting pursuant to state constitutions. But Congress has spoken, too. It has regulated the manner of drawing congressional districts by federal statute. See 2 U.S.C. § 2c. Congressional redistricting in a State now takes place pursuant to this federal statutory directive, which contemplates a role …

Where There Is A Right, There Is A Remedy—Or Is There?, Grace Panicola

SLU Law Journal Online

Courts have repeatedly declined to allow causes of actions under the Constitution when Plaintiffs’ constitutional rights are violated by government officials. In this article, Grace Panicola discusses a pocket of governmental immunity that creates serious implications for Plaintiffs as they ultimately face inadequate remedies.

Brief Of Amici Curiae Jewish Coalition For Religious Liberty, Islam & Religious Freedom Action Team Of The Religious Freedom Institute, And Notre Dame Law School Religious Liberty Clinic In Support Of Petitioners, John A. Meiser, Nicole Stelle Garnett

Court Briefs

No. 22-238
Charter Day School, Inc. v. Bonnie Peltier

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

From the Summary of Argument

The Fourth Circuit’s gross misapplication of state-action doctrine contradicts decades of precedent and expands the doctrine beyond its breaking point. If not corrected, that analysis would also endanger many vital public services provided by religious charitable groups and undermine this Court’s recent free-exercise cases in the process.

Demons & Droids: Nonhuman Animals On Trial, Gerrit D. White

PANDION: The Osprey Journal of Research and Ideas

Nonhuman animal trials are ridiculous to the modern sensibilities of the West. The concept of them is in opposition to the idea of nonhuman animals—entities without agency, incapable of guilt by nature of irrationality. This way of viewing nonhuman animals is relatively new to the Western mind. Putting nonhuman animals on trial has only become unacceptable in the past few centuries. Before this shift, nonhuman animal trials existed as methods of communities policing themselves. More than that, these trials were part of legal systems ensuring they provided justice for all. This shift happened because the relationship between Christian authorities and …

Wake Up And Smell The Smog: The Third Circuit Provides Clarity On Cercla's Federally Permitted Release Reporting Exemption In Clean Air Council V. United States Steel Corp., Zachary Lawlor

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Dicamba Is Gone With The Wind: The Ninth Circuit Blows Life Into Fifra In National Family Farm Coalition V. United States Environmental Protection Agency, Timothy Howley Keith

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Wishing To Be Part Of That Court: How The Supreme Court's Decision In Bp P.L.C. V. Mayor Of Baltimore Lets Energy Companies Wander Free And Drown The Shore Up Above, Natalie Poirier

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Are Rules Effective Before Publication? Reflections On The D.C. Circuit’S Decision In Humane Society V. Usda, Jack M. Beermann

Faculty Scholarship

Since at least 1980, there has been a documented increase in regulatory activity at the end of presidential terms, especially in the post-election period when the outgoing President’s successor is from the other party. This phenomenon has come to be known as “midnight regulation,” and the products of end-of-term legislative rulemaking are referred to as “midnight rules.” While a study I conducted for the Administrative Conference of the United States revealed that most midnight rules are routine,[1] some are not and are designed to project the agenda of the outgoing administration into the future and force the incoming administration …

Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller

Washington Law Review

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business …

Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart

Indiana Law Journal

Qualified immunity is a judicially created doctrine that shields government officials from personal liability for civil damages. Courts applying the doctrine, which is heavily dependent on the facts of the case, must determine whether the government officials’ conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. This inquiry is discretionary as judges must determine if the alleged violation was “clearly established,” a term that the Supreme Court has defined in conflicting ways. Moreover, when federal judges conduct the qualified immunity inquiry at the Rule 12(b)(6) motion to dismiss stage, their decision is …

An Interdisciplinary Legal Study Of The Organisation Of The Courts: The Methodological Consequences Of The Meeting Between Legal And Management Approaches (Penelitian Hukum Interdisipliner Pada Organisasi Peradilan: Pertemuan Pendekatan Hukum Dan Pendekatan Manajemen Serta Konsekuensi Metodologisnya), Dian Rositawati

The Indonesian Journal of Socio-Legal Studies

This article presents the relationship between legal principles and management principles in the judicial organization and how they affect the judiciary's performance. As an organization, the judiciary is bound by the rule of law principles, especially the principle of judicial independence, as stated in the constitution and laws. However, the courts as an organization are also influenced by management principles, which include viewing public organizations from efficiency, effectiveness, and service quality perspectives. This paper discusses the interaction and tension between these principles in a judicial organization and their methodological consequences. In the discussion about methodology, this paper will elaborate on …

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 …

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.

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 …

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 …

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 …

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 …

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 …