Courts Commons^™

Filling Lower Court Vacancies In Congress' Lame Duck Session, Carl Tobias

Law Faculty Publications

In this midterm election year of 2022, the nation’s divided political parties are in a battle royale to win the exceedingly close Senate majority. One important explanation for the fight is that the party which assumes the next Senate majority will necessarily have considerable power to affect the confirmation of federal judges. For example, during Donald Trump’s presidency, Republicans controlled the Senate; therefore, the chief executive and the upper chamber proposed and confirmed fifty-four accomplished,
extremely conservative, young appeals court, and 174 district court, jurists. The Republican White House and Senate majority confirmed judges by rejecting or deemphasizing the rules …

Fringe Inheriting: Probate Avoidance At Both Ends Of The Wealth Spectrum, Allison Anna Tait

Law Faculty Publications

The principal system in the United States for transferring wealth from one generation to the next - the probate system - is a historically and steadfastly public one. Probate is a set of public processes and a court system created to situate and facilitate wealth transfer, giving legal imprimatur to the distribution of family money. Nevertheless, while the probate system may be the central and most conventional system for transferring wealth, not all families and individuals avail themselves of the system. The broad swath of families who avail themselves of the services and certain benefits of the probate system are, …

Keynote Address, Christopher J. Buccafusco, Jeff Kosseff

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution and impact of Section 230 of the Communications Decency Act, highlighting its role in shaping internet speech and liability. It traces the law's origins, key court rulings, and current debates about its future. The speaker emphasizes the need for informed discussion to address concerns about harmful content, platform moderation, and free speech.

At The Intersection Of Diplomacy And International Law: The Isds Reform Process, Chiara Giorgetti

Law Faculty Publications

Diplomacy and international law are highly interactive and interdependent, as Margaret McGuinness and David Stewart explain well in the introduction of this book. This is especially true in international dispute settlement, where diplomacy and international law build on each other as essential tools for the maintenance of peace. From the creation of new international courts and tribunals to enforcement of many international awards and judgments, diplomacy plays a crucial role in fostering and strengthening dispute resolution. ...

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James Blumstein

Vanderbilt Law School Faculty Publications

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But …

Rule 4(K), Nationwide Personal Jurisdiction, And The Civil Rules Advisory Committee: Lessons From Attempted Reform, A. Benjamin Spencer

Faculty Publications

On multiple occasions, I have advocated for a revision to Rule 4(k) of the Federal Rules of Civil Procedure that would disconnect personal jurisdiction in federal courts from the jurisdictional limits of their respective host states—to no avail. In this Essay, I will review—one final time—my argument for nationwide personal jurisdiction in the federal courts, recount my (failed) attempt to persuade the Advisory Committee on Civil Rules to embrace my view, and reflect on what lessons may be drawn from the experience regarding the civil rulemaking process. My aim is to prompt discussion around potential rulemaking reforms and to equip …

Empirical Analysis Of National Court Enforcement Of International Commercial Arbitration Awards, Roger P. Alford, Crina Baltag, Matthew E.K. Hall, Monique Sasson

Journal Articles

The empirical research in this article relies on a data set including all national court decisions on recognition, enforcement and setting aside (vacatur) of international commercial arbitration awards available in the Kluwer database that were rendered from 1 January 2010 to 1 June 2020. Within the time parameters of this study, there were 504 vacatur actions and 553 offensive recognition and enforcement actions. Those decisions were rendered by national courts in 74 different jurisdictions.

The research coded every argument raised by defendants challenging the recognition and enforcement of awards based on grounds set forth in Article V of the United …

Crime And Excessive Punishment: How The Courts Accelerate The Race To Recidivism, Rachel Kunjummen Paulose

Lewis & Clark Law Review

Congress wants citizens to believe that it is very tough on crime. In federal statutes, as well as in the United States Sentencing Guidelines, authorities have imposed heightened penalties on criminals whose history demonstrates violence, a propensity for aggravated conduct involving guns and drugs, or a repetitive disregard for the law.

Who is an armed career criminal? What is an aggravated felony? Who is a career offender? Congress cannot be bothered with the details, but it assures an anxious public that it will lock up all these bad guys and throw away the key. Words matter in the law. By …

One Step Backward: The Ninth Circuit's Unfortunate Rule 404(B) Decision In United States V. Lague, Dora Klein

Faculty Articles

The federal courts' current approach to character evidence is widely recognized as problematic. Although Rule 404(b)(1) categorically prohibits the use of character evidence, Rule 404(b)(2) presents a list of examples of permitted purposes that has tempted courts to view the admission of other-acts evidence as proper so long as the evidence is merely relevant to a non-character purpose. Additionally, courts have misconstrued the inclusive structure of Rule 404(b) as creating a presumption

in favor of admissibility. Recent efforts to correct this mistakenly permissive view include decisions by several of the federal circuit courts of appeals recognizing that Rule 404(b) requires …

Any Port In A Storm: What Social Media Platforms Should Do To Address The Shifting Legal Tides Governing Content Embedding, Laura Cohen

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Touro Law Review

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …

Changemakers: Master Of Studies In Law: 'Law Isn't A Foreign Language Anymore', Roger Williams University School O Law

Life of the Law School (1993- )

No abstract provided.

Changemakers Master Of Studies In Law: Adding Depth: Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The War In Ukraine And The Legitimacy Of The International Criminal Court, Yvonne Dutton, Milena Sterio

American University Law Review

The news of the many atrocities being committed as the war in Ukraine rages on has prompted a chorus of calls seeking to hold perpetrators accountable. Heralded as a critical player is the International Criminal Court (the ICC or “Court”). Unlike in the past where states have decried requests to increase the Court’s budget or refused to cooperate with the Office of the Prosecutor’s (“OTP”) efforts to gather evidence or arrest suspects, states are generously donating funding and other resources to bolster the Court’s likelihood of bringing successful prosecutions.

This Article argues that the unique situation surrounding state support for …

First Do Not Harm: Revisiting Meriwether V. Hartop And Academic Freedom In Higher Education, Inara Scott, Elizabeth Brown, Eric Yordy

American University Law Review

repeal and amend substantive statutes unilaterally, a power that can threaten bedrock commitments to our federalism and to our constitutional rights to the jury. The decisions about how and when to displace state law in favor of federal law and about how and when to grant powers to juries over judges cannot be vested in the Judicial Branch alone without the structural restraints of an Article III “case or controversy.” The paper concludes by offering some ways to fix our evidence law and to put it on firmer footing, permitting better power-sharing and dialogue between two branches of government—Congress and …

Review Of Veterans Law Decisions Of The Federal Circuit, 2021 Edition, Angela Drake, Yelena Duterte, Stacey-Rae Simcox

American University Law Review

In the past year, the United States Court of Appeals for the Federal Circuit (Federal Circuit) continued to define boundaries for the Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims (Veterans Court). These boundaries align more closely with congressional intent, especially with regard to the jurisdiction of the Veterans Court and the internal operations of the agency.

This Area Summary discusses eight major areas in which the Federal Circuit articulated important changes in veterans law. First, the Federal Circuit revisited the important and veteran-friendly “benefit of the doubt” rule in Lynch and modified it. …

Year In Review: The Federal Circuit's 2021 Government Contract Law Decisions, Morgan W. Huston, Nicholas Feldstern, Camille Chambers

American University Law Review

It has been almost forty years since Congress created the United States Court of Appeals for the Federal Circuit with the goal of ensuring uniform and definitive judicial interpretations of the law applicable to Federal Government contracting. Because, like that of the Court of Claims before it, the precedent of the Federal Circuit guides how procurement laws are interpreted, it is important for practitioners and those whose livelihoods depend on government contracting to pay attention to the decisions that the Federal Circuit issues.

Judicial Review Of Emergency Administration, Desiree Leclercq

American University Law Review

This Article seeks to describe and defend the judicial review of federal agencies’ responses to national emergencies - what I refer to as “emergency administration.” That may prove difficult. Agencies are experts in their respective fields. During emergencies, scholars and policymakers assume that judges will defer to that expertise under the Administrative Procedure Act (APA ). On January 13, 2022, the Supreme Court defied that assumption when it blocked the Biden Administration s workplace vaccine and masking rules. Critics now assume that judges are reviewing emergency administration to constrain regulation. Both assumptions conclude that judicial review is neither sincere nor …

Courts In Conversation, Thomas P. Schmidt

Faculty Scholarship

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that …