Courts Commons^™

Praxis And Paradox: Inside The Black Box Of Eviction Court, Lauren Sudeall, Daniel Pasciuti

Vanderbilt Law Review

In the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how “court” functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.

For many tenants facing eviction, elements of the …

Supreme Court Appointments In Presidential Election Years: The Case Of John Hessin Clark, Jonathan L. Entin

Cardozo Law Review

No abstract provided.

Court Packing Is A Chimera, Brian L. Frye

Cardozo Law Review

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley

Cardozo Law Review

No abstract provided.

Contra Publius: The House As Cure For The Complaisance And Venality Of The Senate, Sam Solomon

Cardozo Law Review

No abstract provided.

I Choose, You Decide: Checking The Judiciary From Within, Jeremy N. Sheff

Cardozo Law Review

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus either on what Ryan Doerfler and Samuel Moyn call “personnel reforms”—changes to the selection, appointment, or tenure of Justices—or on what they call “disempowering reforms”—changes that divert some of the judiciary’s authority to the political branches, for example via jurisdiction stripping. I propose a different—and perhaps complementary—reform, which would achieve some of the goals of both types of reform without requiring a constitutional amendment. I propose that the selection of a case for the Supreme Court’s discretionary appellate docket should be performed by a …

The Remaking Of The Supreme Court: Implications For Climate Change Litigation & Regulation, Mark P. Nevitt

Cardozo Law Review

No abstract provided.

Court Packing As An Antidote, Rivka Weill

Cardozo Law Review

Court packing is considered the nuclear weapon that may unleash total chaos on the American constitutional system. Even in the face of a highly controversial appointment process to the U.S. Supreme Court during the 2020 presidential election season, scholars caution against the wisdom and utility of resorting to court packing. This Essay makes three bold arguments: First, a President may nominate a candidate to the Supreme Court at any time, including their last year in office; this is true both empirically and normatively. It is the Senate’s responsibility to ensure the people’s will is not frustrated. Second, never since the …

A Clarified Standard? A Case Note On Monasky V. Taglieri, Rebecca Jacobson

Cardozo Law Review

No abstract provided.

Reforming State Bail Reform, Shima Baughman, Lauren Boone, Nathan H. Jackson

Utah Law Faculty Scholarship

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.
/="/">
/="/">Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts …

Department Of Homeland Security V. Regents Of The University Of California And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.

The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands …

The Article Iii Publication Power And The Foreign Intelligence Surveillance Court, John Langford

Cardozo Law Review

The Framers vested “the judicial Power of the United States” in independent courts so that they may protect individual liberty and serve as a check on the legislative and executive branches. The judicial power, however, is narrow and not self-executing. As Chief Justice Marshall put it, it is merely the power “to say what the law is.” Federal courts cannot raise armies or pay money to enforce their decrees. Having neither force nor will, courts must instead rely on cultivating public support to secure the authoritative legitimacy necessary to effectuate their judgments.

But what happens when the executive branch asserts …

Brief Of Religious-Liberty Scholars Douglas Laycock, Steven T. Collis, Helen M. Alvare, Nathan S. Chapman, Elizabeth A. Clark, Robert F. Cochran, Teresa S. Collett, W. Cole Durham, Jr., Carl H. Esbeck, Richard W. Garnett, Christopher C. Lund, Michael P. Moreland, And Michael Stokes Paulsen As Amici Curiae In Support Of Petitioner, Steven T. Collis, Douglas Laycock, Richard W. Garnett

Court Briefs

No. 21-5592
John H. Ramirez v. Bryan Collier

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Summary of Argument

The state substantially burdens the exercise of religion if it coerces people to change their religious behavior or if it physically prevents religious behavior from occurring.

(Anti)-Slapp Happy In Federal Court?: The Applicability Of State Anti-Slapp Statutes In Federal Court And The Need For Federal Protection Against Slapps, Caitlin Daday

Catholic University Law Review

In recent years, lawsuits known as Strategic Lawsuits Against Public Participation, or SLAPPs, have become increasingly common. These suits seek to intimidate and punish people for exercising their First Amendment rights. In response to SLAPPs, over half of the states have enacted anti-SLAPP statutes to protect the targets of SLAPPs. They do so by providing a mechanism for the target to dismiss the lawsuit more quickly than they would normally be able to. In federal courts, the question has arisen as to whether anti-SLAPP statutes should be applied in diversity suits given their close alignment to Federal Rules 8, 12, …

Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel

Brooklyn Law Review

Corpus linguistics presents an exciting tool for improving interpretation of documentary language. But it would be a mistake to overvalue the tool or to use it as grounds for ejecting consideration of other data from the interpretative task. While properly operationalized corpus linguistics analysis represents an advancement over traditional textualism, it remains subject to the same problems that plague excessively rigid textualism that refuses to give consideration to contextual evidence of meaning. To be most effective in achieving accurate and just interpretative results, corpus linguistics, like traditional reading of documentary language, requires context. This includes not only the context of …

Big Data And Accuracy In Statutory Interpretation, Brian G. Slocum

Brooklyn Law Review

Scholarship is increasingly devoted to improving the “accuracy” of statutory interpretations, but accuracy is a contingent concept dependent on interpretive perspective. If, for instance, a scholar focuses on the language production of the legislature, she may seek to improve the methodology of statutory interpretation through a more sophisticated understanding of the legislative process. Thus, the scholar may argue that one can assess the reliability of the different types of legislative history by focusing on the actors and processes that produce them. Conversely, a scholar might focus on the language comprehension of some speech community, such as the one comprised of …

Mechanical Turk Jurisprudence, Shlomo Klapper

Brooklyn Law Review

This paper argues that data-driven interpretation creates a “Mechanical Turk” jurisprudence: a jurisprudence that appears mechanical but in fact is thoroughly human. Its contribution to the literature is twofold. First, it articulates an intellectual history of data-driven interpretation: data-driven tools have been adopted because society associates quantification with a mechanical objectivity and because objectivity is at the center of debates over statutory interpretation. Second, it criticizes surveys as an interpretative tool: in addition to a host of practical execution problems, surveys misunderstand the concept of “ordinary meaning” and threaten to undermine the value of faithful agency.

What Counts As Data?, Anya Bernstein

Brooklyn Law Review

We live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in …

Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail

Brooklyn Law Review

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will deliver …