Courts Commons^™

The Corrosive Effect Of Inevitable Discovery On The Fourth Amendment, Tonja Jacobi, Elliot Louthen

Faculty Articles

The Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded. Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding evidentiary burden requiring the prosecution to prove by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual …

Neoliberal Civil Procedure, Luke Norris

Law Faculty Publications

This Article argues that the current era of U.S. civil procedure is defined by its neoliberalism. The Supreme Court has over the past few decades reinterpreted the Federal Rules of Civil Procedure in ways that have made it more difficult for citizens to bring and maintain civil claims. The major decisions of this new era—in areas as diverse as summary judgment, pleading, class actions, and arbitration—exhibit neoliberal hallmarks. They display neoliberalism’s tendency to naturalize existing market arrangements, its focus on efficiency and obscuring questions of power, its reduction of citizens to consumers, and its attempt to analyze government through the …

Did Anyone Ask The Child?: Recognizing Foster Children’S Rights To Make Mature Decisions Through Child-Centered Representation, Katie Chilton

Emory Law Journal

A child placed in foster care finds themselves in an especially vulnerable position. Removed from their homes, apart from family, and living with strangers, a foster child’s voice often gets lost in the shuffle. While the Supreme Court has recognized some constitutional rights for children, legislators and judges tread lightly when expanding children’s rights for fear of infringing upon parents’ fundamental rights to determine the care and upbringing of their children. This situation creates a unique disadvantage for a child in foster care who is subject to the trauma of removal, placement in a temporary home of strangers, outside the …

When Beneficiaries Predecease: An Empirical Analysis, Adam J. Hirsch

Emory Law Journal

Under current law, bequests to beneficiaries who predecease the testator “lapse” to the beneficiary of the residuary, unless they are preserved for the descendants of predeceased beneficiaries under an “antilapse” statute. The beneficiaries covered by antilapse statutes vary from state to state, but in most states today the statutes apply only to blood relatives of the testator as distant as first cousins. This Article examines the public policy of antilapse statutes, assessing them by undertaking the first-ever survey of popular preferences concerning the matter. Harvesting evidence for five types of beneficiaries, the study finds that the prevailing structure of antilapse …

Returning To The Statutory Text: Why The Language Of Section 13(B) Requires Courts To Narrowly Construe The Ftc’S Ability To Obtain Injunctive Relief, Christopher Halm

Fordham Journal of Corporate & Financial Law

The Federal Trade Commission (FTC) enforces over 70 laws in the areas of antitrust and consumer protection, and one valuable tool to support their enforcement is Section 13(b) of the Federal Trade Commission Act (“Section 13(b)”). Section 13(b), among other features, grants the FTC authority to seek an injunction in district court against any defendant that is “about to violate” one or more of those laws. For the past three decades, courts have adopted a permissive judicial interpretation of that language, authorizing injunctions against defendants when the allegedly impending violations were only “likely to recur” based on past misconduct. This …

Requiring The Executive To Turn Square Corners: The Supreme Court Increases Agency Accountability In Department Of Homeland Security V. Regents Of The University Of California, Claudia J. Bernstein

Dickinson Law Review (2017-Present)

Administrative agencies frequently promulgate rules that have dramatic effects on peoples’ lives. Deferred Action for Childhood Arrivals (“DACA”) is one such example. DACA grants certain unlawful immigrants a temporary reprieve from deportation, as well as ancillary benefits such as work permits. In 2017, the Department of Homeland Security (“DHS”) sought to rescind DACA on the basis that the program violates the Immigration and Nationality Act.

This Comment analyzes the recent Supreme Court decision about DACA’s recission in Department of Homeland Security v. Regents of University of California. In rejecting DHS’s attempt to rescind DACA, the Court strengthened agency accountability …

The Immigration Court: Zigzagging On The Road To Judicial Independence, Mimi Tsankov

University of Colorado Law Review

The Article will begin by outlining the basic structure of the existing system and identifying some of the key changes that have impacted IJs (Immigation Judges) on the bench, which have driven us to a moment in history that many argue is our most tenuous. Part I will offer a brief overview of our court structure for context. Part II will explain how, after a tumultuous five years, Immigration Courts are currently significantly tarnished such that rehabilitation of the existing system may serve a short-term purpose but will inevitably fail to address the larger, fundamental inequities that result from a …

The Intersection Of Judicial Interpretive Methods And Politics In Supreme Court Justices’ Due Process Opinions, Julie Castle

Capstone Showcase

The Supreme Court, a nine seat bench of unelected and lifetime tenured Justices, determines the constitutionality of dozens of cases each year. In this thesis, I research to what extent the political affiliation of the Justices affect the judicial decision making process and, ultimately, outcomes. Using pattern matching, I evaluate due process opinions from Justice Breyer, Justice O’Connor, and Justice Scalia, all of whom have established constitutional analysis methods, in order to determine if they reasonably adhere to their established method. Due to the highly political nature of due process cases, variance between the expected (adherence to the Justices’ established …

Points Of No Return: How The Ninth Circuit’S New Voluntary Undertaking Doctrine Changes Return-To-Play In Sports, Sam C. Ehrlich

University of San Francisco Law Review

No abstract provided.

Very Important Cases (“Vics”): United States V. Briggs And The Status Of Cases Involving Sexual Violence And Statutes Of Limitations, Michele A. Yankson

University of San Francisco Law Review

No abstract provided.

Ford's Underlying Controversy, Christine P. Bartholomew, Anya Bernstein

Journal Articles

Personal jurisdiction—the doctrine that determines where a plaintiff can sue—is a mess. Everyone agrees that a court can exercise personal jurisdiction over a defendant with sufficient in-state contacts related to a plaintiff’s claim. This Article reveals, however, that courts diverge radically in their understanding of what a claim is. Without stating so outright, some courts limit the claim to a cause of action or its elements, while others understand it to encompass the controversy underlying the litigation. What is worse, few have noticed that these discrepancies even exist, much less explained why. This Article does just that. We show that …

Polluters Paradise: The Dark Canon Of The United States Supreme Court In Pollution Control Law, Oliver A. Houck

American University Law Review

This Article is the last in a series of four articles exploring the Supreme Court's destructive legacy on environmental protection in the United States. This Article specifically explores the relationship between the Supreme Court and pollution through the lens of four landmark cases. Perhaps unsurprisingly, these cases together evince the Court’s tendency to distort both facts and law to reach outcomes that will benefit industrial polluters and emitters alike.

In the first case, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, the Court disregarded EPA regulations banning the discharge of toxic materials into waters to approve a pollution-heavy mining operation. …

Expanding Medicaid In The Postpartum Period, Madison P. Harrell

Law Student Publications

This Comment will discuss how the current Medicaid law is insufficient to address the issue of disappointing maternal health outcomes in the United States and how the federal government should begin to remedy the problem. First, I will shed light on the maternal health crisis in the United States, before discussing the history of pregnancy and postpartum Medicaid coverage. Then, I will outline the enactment of the Affordable Care Act, the subsequent court battle over its constitutionality, and the effects of that decision on the current landscape of pregnancy and postpartum Medicaid coverage. Finally, I will detail my proposal for …

Copyright Takes To The Streets: Protecting Graffiti Under The Visual Artists Rights Act, Michaela S. Morrissey

Law Student Publications

Artists who choose the streets as their canvas—whether to beautify neighborhoods, spark political protest, or merely mark their territory—are faced with uncertainties when it comes to questions of copyright protection for their work. Prior to Castillo v. G&M Realty L.P., the rights granted to street artists had generally been uncharted territory. However, a verdict that pitted the rights of street artists against the rights of property owners finally gave street art the credibility many felt it long deserved. In Castillo, the United States Court of Appeals for the Second Circuit recognized graffiti as a work of visual art, thus …

Shadow Dockets Lite, Hayley Stillwell

Faculty Articles

Inherent to the role of judges is the obligation to explain themselves and to create precedent—which is why the U.S. Supreme Court’s “shadow docket” has recently garnered ample criticism. Unfortunately, other courts share these deficiencies. Oklahoma Supreme Court justices often decline to vote without explanation. They also note their disagreement with some or all of an opinion, but fail to explain why. Tenth Circuit Court of Appeals judges decide whether an opinion is unpublished—and thus nonprecedential—without explanation. These practices are “shadow dockets lite” because they are more consistent with the role of judges than the Supreme Court’s shadow docket, but …

The Field Of State Civil Courts, Anna Carpenter, Alyx Mark, Colleen Shanahan, Jessica Steinberg

Faculty Articles

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

State V. Michaud, 251 A.3d 9 (Ri 2021)., Blair Robinson

Roger Williams University Law Review

No abstract provided.

2021 Rhode Island Public Laws, Madison C. Picard

Roger Williams University Law Review

No abstract provided.

Beagan V. Rhode Island Department Of Labor And Training, 253 A.3d 858 (R.I. 2021), Candace Quinn

Roger Williams University Law Review

No abstract provided.

Frenemy Federalism, Scott Bloomberg

University of Richmond Law Review

Federalism scholars have long been fascinated by the unique relationship between the federal government and states that have legalized marijuana. And with good reason. For the past fifty years, Congress has classified marijuana as a Schedule I drug under the federal Controlled Substances Act (“CSA”), deeming the drug to have a high potential for abuse and no accepted medical use. Congress’s aim in establishing Schedule I of the CSA was to “eliminate the market in Schedule I substances.” Thus, possessing, distributing, and manufacturing marijuana are federally illegal. Congress’s objective notwithstanding, over two-thirds of the states (and territories) have legalized marijuana …