Courts Commons^™

Increasing Case Traffic: Expanding The International Criminal Court's Focus On Human Trafficking Cases, Nadia Alhadi

Michigan Journal of International Law

Human trafficking falls within the jurisdictional competence of the International Criminal Court (“ICC”) as one of the article 7 crimes against humanity, whether committed in an atmosphere of conflict or in times of relative peace. Despite the ICC’s jurisdiction, as well as the globally pervasive nature of peacetime trafficking in particular, the ICC has not yet heard a human trafficking case.

Accountability at the international level, however, is crucial, and the ICC’s oversight has the potential to fill gaps in the current anti-trafficking regime. This note explores this potential, and then examines whether the text of the Rome Statute or …

Covid, Crisis And Courts, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark, Jessica Steinberg

Utah Law Faculty Scholarship

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against Black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade, and we will return to more of the same. Whatever lies on the other side of …

The "Directive" Prong: Adding To The Allied-Signal Framework For Remand Without Vacatur, T. Alex B. Folkerth

Michigan Journal of Environmental & Administrative Law

“Remand without vacatur” is an administrative law remedy that allows courts reviewing agency actions with minor legal defects to leave the action in place while the agency fixes the defect. Courts use a two-prong test from the 1993 D.C. Circuit case Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission to determine whether or not to vacate the action pending remand. Allied-Signal’s “deficiency” prong directs the court to consider how bad the defect is. The “disruption” prong directs the court to consider how much havoc will be wreaked by the vacation of the action while the agency is fixing the defect. …

When Freedom Of Speech Comes At A Cost: A Case Study Of E.S. V. Austria, Rachael Taylor

Indiana Journal of Global Legal Studies

In the fall of 2018, the European Court of Human Rights (ECtHR) issued a decision upholding the criminal conviction of an Austrian national (E.S.) in violation of Austria's Criminal Code against the disparagement of religious doctrines. Her initial conviction in the Austrian court was based on statements she made about the Prophet Muhammad while teaching a series of seminars entitled "Basic Information on Islam." In upholding her conviction, the ECtHR found that there had been no violation of the Austrian's right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights (Convention), and …

Democracy, Deference, And Compromise: Understanding And Reforming Campaign Finance Jurisprudence, Scott P. Bloomberg

Loyola of Los Angeles Law Review

In Citizens United, the Supreme Court interpreted the government’s interest in preventing corruption as being limited to preventing quid pro quo— cash-for-votes—corruption. This narrow interpretation drastically circumscribed legislatures’ abilities to regulate the financing of elections, in turn prompting scholars to propose a number of reforms for broadening the government interest in campaign finance cases. These reforms include urging the Court to recognize a new government interest such as political equality, to adopt a broader understanding of corruption, and to be more deferential to legislatures in defining corruption.

Building upon that body of scholarship, this Article begins with a descriptive …

The Need For A Historical Exception To Grand Jury Secrecy In The Federal Rules Of Criminal Procedure, Daniel Aronsohn

Loyola of Los Angeles Law Review

No abstract provided.

Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert

William & Mary Bill of Rights Journal

Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …

Brief Of Religious Liberty Scholars, Employment Law Scholars, And Karamah: Muslim Women Lawyers For Human Rights As Amici Curiae In Support Of Petitioner, Douglas Laycock, Richard W. Garnett

Court Briefs

No. 19-1388
Jason Small v. Memphis Light, Gas & Water

On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth 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.

Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin

Pepperdine Law Review

Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …

A Call For America's Law Professors To Oppose Court-Packing, Bruce Ledewitz

Pepperdine Law Review

A Court-packing proposal is imminent. Mainstream Democratic Party Presidential Candidates are already supporting it. The number of Justices on the Supreme Court has been set at nine since 1869, but this is merely a statutory requirement. As soon as Democrats regain control of the Presidency and the Congress, Court-packing will be on the agenda, either expressly or under the guise of Court-reform. Now is the time for the American legal academy to join together to oppose this threat. Court-packing would threaten democracy, destroy the rule of law and undermine judicial independence. It is a pointless and unnecessary reaction born of …

United States V. Lozoya: The Turbulence Of Establishing Venue For In-Flight Offenses, Daeja Pemberton

Texas A&M Law Review

The U.S. Constitution protects one’s right to a fair trial in a proper venue. Typically, venue is proper in whatever territorial jurisdiction a defendant commits an offense. But this rule is not as clear-cut when the offense takes place in a special jurisdiction, such as American airspace. A court must then determine whether the offense continued into the venue of arrival, making it proper under the Constitution. This issue was reexamined when Monique Lozoya assaulted another passenger on an airplane during a domestic flight. In United States v. Lozoya, the Ninth Circuit Court of Appeals failed to correctly identify …

A Better Madden Fix: Holistic Reform, Not Band-Aids, To Modernize Banking Law, Matthew J. Razzano

University of Michigan Journal of Law Reform Caveat

Historically, state usury laws prohibited lending above certain interest rates, but in 1978 the Supreme Court interpreted the National Bank Act (NBA) to allow chartered banks to issue loans at rates based on where they were headquartered rather than where the loan originated. States like South Dakota virtually eliminated interest rate ceilings to attract business, incentivizing national banks to base credit operations there and avoid local usury laws. In 2015, however, the Second Circuit decided Madden v. Midland Funding, LLC and reversed long-standing banking practices, ruling that non-chartered financial institutions were not covered by the NBA and were therefore subject …

The Pieces Of Housing Integration, Kristen Barnes

College of Law - Faculty Scholarship

Notwithstanding the enactment of the Fair Housing Act in 1968, accomplishing racially-integrated housing across the United States remains an unattained goal. The costs associated with this failure are innumerable. Black Americans have endured harms in many areas, including health, education, wealth, and employment. More broadly, the nation has incurred considerable socioeconomic and political costs. In the interdisciplinary book, Moving Toward Integration, authors Richard Sander, Yana Kucheva, and Jonathan Zasloff analyze why the promise of racially-integrated housing remains unfulfilled and identify noteworthy strategies for changing course. Engaging with their arguments, this article highlights several structural impediments to altering racial housing …

Revisiting And Confronting The Federal Judiciary Capacity “Crisis”: Charting A Path For Federal Judiciary Reform, Ryan G. Vacca, Peter S. Menell

Law Faculty Scholarship

[excerpt] "This Article revisits and confronts the growing caseload and congestion problems plaguing the federal judiciary. It begins by tracing the history and political economy surrounding judiciary reform. It then updates data on caseloads, processing times, certiorari petitions, en banc review, and other measures of judicial performance, revealing expanding caseloads and growing complexity and fragmentation of federal law. Part III explores the political, institutional, and human causes of the logjam over judiciary reform and offers an antidote: a commission tasked with developing a judiciary reform act that would not go into effect until 2030. The “2030 Commission” members would …

The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker

Indiana Law Journal

In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch

stack of paper. But in the same year, federal administrative agencies promulgate

80,000 pages of regulations—which makes an eleven-foot paper pillar. This move

toward electorally unaccountable administrators deciding federal policy began in

1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than

elected representatives, unelected bureaucrats increasingly make the vast majority

of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three

areas: delegation, deference, and independence.

This trend is about to be reversed. In the coming years, Congress will …

Judicial Independence: Tweak The Guiding Paradigm, Charles G. Geyh

Articles by Maurer Faculty

Over time, the public has simply ceased to believe judges when say that they follow the law, and nothing but. If judges impose their ideological policy preferences, the argument goes, why should they be independent from political controls, when other policymakers are not? We have reached the point where, when judges seek to defend the customs and conventions that have guarded against incursions upon their independence by arguing that “we are all about the law and nothing else,” the public response has increasingly become, “No, no, no, your nose is growing.”

Boldly Marching Through Closed Doors: The Experiences Of The Earliest Female Attorneys In Their Own Words, Nicole P. Dyszlewski

Law Faculty Scholarship

No abstract provided.

Should Judges Have A Duty Of Tech Competence?, John G. Browning

St. Mary's Journal on Legal Malpractice & Ethics

In an era in which lawyers are increasingly held to a higher standard of “tech competence” in their representation of clients, shouldn’t we similarly require judges to be conversant in relevant technology? Using real world examples of judicial missteps with or refusal to use technology, and drawn from actual cases and judicial disciplinary proceedings, this Article argues that in today’s Digital Age, judicial technological competence is necessary. At a time when courts themselves have proven vulnerable to cyberattacks, and when courts routinely tackle technology related issues like data privacy and the admissibility of digital evidence, Luddite judges are relics that …

In A Class Of Its Own: Bristol-Myers Squibb'S Worrisome Application To Class Actions, Grant Mcleod

Akron Law Review

The Supreme Court’s holding in Bristol-Myers Squibb Co. v. Superior Court has far-reaching implications for federally filed class actions. While the case concerned a mass action in the California state courts, the opinion contained strong dicta to suggest its principles of specific jurisdiction could be applied to federal class—an entirely different procedural tool with its own host of complexities and problems. In the three years following the decision, federal district courts are split on how to apply the Bristol-Myers Squibb analysis to class actions. A distinct category of courts have applied the analysis to dismiss absent class members’ claims when …

Appellate Jurisdiction And The Emoluments Litigation, Adam N. Steinman

Akron Law Review

This article—part of a symposium on federal appellate procedure—addresses questions of appellate jurisdiction that have played an important role in litigation challenging Donald Trump’s conduct under the Constitution’s Emoluments Clauses. When federal trial judges in the District of Columbia and Maryland rejected Trump’s early attempts to dismiss two of these cases, Trump sought immediate relief from the federal courts of appeals rather than allowing the litigation to proceed in the district courts. The lack of a traditional final judgment, however, prompted difficult jurisdictional issues for the D.C. Circuit and the Fourth Circuit.

In both cases, the relationship between appellate mandamus …