Courts Commons^™

An Invisible Border Wall And The Dangers Of Internal Agency Control, Jill E. Family

Lewis & Clark Law Review

Administrative law has long struggled to determine the appropriate balance between internal and external control over federal agencies. Some scholars posit that internal agency controls (those from within the executive branch) are optimal checks on agency behavior. In fact, some argue that external control (from Congress or the courts) is detrimental to agency governance. This Article presents a cautionary tale for those who discount the role of external control; it depicts a case study that poses a major challenge to those who theorize that internal agency controls are a sufficient check on agency behavior.

This case study analyzes the Trump …

Mess Rea, Connor B. Mcdermott

Lewis & Clark Law Review

The disarray of the law on criminal mental state is in need of clarification and reform. Mens rea requires that culpability attach to each element of an offense before a defendant can be punished. This requirement has deep common law roots stretching back to medieval times. However, judicial and prosecutorial subjectivity has tainted the doctrine with a quagmire of unclarity. The Model Penal Code attempted to organize this messy doctrine, but it was never adopted by the federal government. In frustration with the labyrinth of federal mens rea law, which can contain conflicting definitions or none at all, the Supreme …

The Promise Of Senior Judges, Marin K. Levy

Faculty Scholarship

Judges, lawmakers, and scholars have long debated whether the federal courts of appeals are understaffed and, if so, how Congress should go about redressing that fact. Even though there is currently a strong argument that some new judgeships should be created, such a path presents logistical complications. If a significant number of seats are added to the appellate bench, circuits may eventually become too large to function well. And if a significant number of circuits are ultimately split, the total number of federal appellate courts may become too large for the judiciary as a whole to function well. Furthermore, there …

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

The Office Of The Chief Circuit Judge, Marin K. Levy, Jon O. Newman

Faculty Scholarship

Despite famously being called, merely, “one among equals,” the Chief Judge of a federal court of appeals plays a significant role on their court. Internally, the Chief Judge is responsible for everything from overseeing the circuit’s budget to influencing how the court’s sitting calendar is set, from selecting judges who will sit by designation to reviewing complaints of misconduct against judges in their circuit. Externally, the Chief Judge serves as the court’s representative to the Judicial Conference of the United States, the national policy-making body for the federal courts. Outside of official duties, the Chief Judge may initiate projects, which …

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Assumed Facts And Blatant Contradictions In Qualified-Immunity Appeals, Bryan Lammon

Georgia Law Review

When a district court denies qualified immunity at summary
judgment, defendants have a limited right to immediately
appeal that decision. In Johnson v. Jones, the U.S. Supreme
Court held that courts hearing these appeals have jurisdiction
to address only whether the facts the district court took as true
in denying immunity amount to a clearly established violation
of federal law. They lack jurisdiction to look behind the facts
that the district court assumed were true to see whether the
evidence supports those facts. Despite this seemingly clear rule,
defendants regularly flout Johnson’s jurisdictional limits,
taking improper appeals that create extra …

Arbitral Courts, Pamela K. Bookman

Faculty Scholarship

In recent years, states from Delaware to Dubai have been establishing something in between courts and arbitration, what this Article calls “arbitral courts.” Arbitral courts mimic arbitration’s traditional features. They hire internationally well-regarded judges who may also work as arbitrators. They claim the neutrality, expertise, and sometimes the privacy and confidentiality of international arbitration. Unlike arbitration, however, they bind third parties, develop law, and wield the power of the state.

This Article identifies, theorizes, and explores the significance of these new arbitral courts. Arbitral courts unsettle traditional distinctions between public and private adjudication. Their appearance has significant consequences not only …

The Right To Strike As Customary International Law, James J. Brudney

Faculty Scholarship

No abstract provided.

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

“Rule Of Inclusion" Confusion, Dora Klein

Faculty Articles

Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …

Trade Secrets And Personal Secrets, Lital Helman

University of Richmond Law Review

This Article aims to examine the different ways in which the law protects commercial and private secrets. The most fundamental difference is that the trade secrets regime forbids the unauthorized use of a business’s confidential information, while privacy law does not forbid the unauthorized use of a person’s confidential information. If a firm takes measures to protect information of value, the law forbids the use of this information. Yet, as to personal secrets, the mere fact that someone has taken measures to protect their privacy does not create an obligation to avoid misappropriation of their in- formation.

This asymmetry of …

The Preemption Of Collective State Antitrust Enforcement In Telecommunications, Jacob P. Grosso

University of Richmond Law Review

The dichotomy between the levels of government provided murky guidance to telecommunications firms on what behavior is anticompetitive and what decisions firms will have to spend years defending. Despite T-Mobile and Sprint agreeing to sell off several subsidiaries, helping to create a new competitor, and surviving a gamut of regulatory reviews, these companies still could not merge. At this point, preventing the deal would cause irreversible harm to the merging parties.

The conflicts that arose in the T-Mobile-Sprint merger could have been solved through the preemption of collective state antitrust enforcement in the telecommunications market, which would balance the twin …

Almond Beverage, Oat Water, And Soaked Soybean Juice: How The Dairy Pride Act Attempts To Remedy Consumer Confusion About Plant-Based Milks, Michelle E. Hoffer

University of Richmond Law Review

With sales of plant-based milks, such as almond and soy milk, on the rise and dairy industry sales declining, dairy industry supporters are taking issue with plant-based milk products calling themselves “milk.”10 In an effort to combat the “mislabeling” of non-dairy products, a few Senators banded together in an attempt to save the dairy industry by creating the DAIRY PRIDE Act.11 The Act was introduced in an effort to prohibit plant-based milk producers from using the term “milk” on their products and instead use a less misleading name, such as “almond imitation milk” or “soy beverage.”12 This Comment argues that, …

Discovery In Federal Courts In Support Of Foreign Litigation: Lending A Helping Hand Or Legal Imperialism?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

For over a century and a half, Congress has authorized the federal courts to assist in the production of evidence for use in foreign tribunals. In 1948, these provisions were codified at 28 U.S.C. § 1782, which currently provides:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person . . . .”

Historically, invocations for assistance …

Proving The Constitution: Burdens Of Proof And The Confrontation Clause, Enrique Schaerer

University of Richmond Law Review

In law, we never prove anything to 100% certainty. For factual propositions, the proponent has the burden of proving them to the satisfaction of a standard: a preponderance of the evidence at the low end; clear and convincing evidence in the middle; proof beyond a reasonable doubt at the high end. The standards are often explicit. Yet, for legal propositions, standards are often implicit or lacking altogether. This Article argues that, to decide legal issues, courts may look to similar burdens of proof that they use to decide factual issues. They should do so informally, using burdens of proof just …

Opportunity Gap: A Survey Of State Sourceof-Income Protection Laws And How They Address The Challenges Facing The Federal Housing Choice Voucher Program, Jamie H. Wood

University of Richmond Law Review

In 1968, the United States Congress enacted the Fair Housing Act (“FHA”) with the stated purpose of “prevent[ing] segregation and discrimination in housing, including in the sale or rental of housing . . . .” The FHA prohibits landlords from refusing to rent to members of certain protected classes, including race, color, national origin, sex, religion, disability, and familial status.2 Notably absent from this list is what is commonly referred to as “source-of-income” (“SOI”) protection, which extends antidiscrimination statutes to recipients of federal public assistance.

The federal government’s primary housing public assistance program is the Housing Choice Voucher (“HCV”) Program …

The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein

Faculty Articles

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states' modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, …

The Citation Of Unpublished Cases In The Wake Of Covid-19, Michael L. Smith

Faculty Articles

California's Rules of Court prohibit the citation of unpublished state court opinions. Courts and litigants, however, may still cite unpublished federal opinions and rulings and unpublished opinions from other states' courts. This may result in problems, such as limiting courts' and parties' authorities to a skewed sample set, and the covert importation of inapplicable, stricter federal court pleading standards in state court cases. COVID-19 was a stress-test that brought the problems with California's citation rules into focus. The pandemic led to a flood of claims for pandemic-related business interruptions by insured business owners against their insurance companies. While state courts …

Stripped Of Funds, Stripped Of Rights: A Critique Of Guardianship As A Remedy For Elder Financial Harm, Rebekah Diller, Leslie Salzman

Articles

There is a growing consensus in the United States and abroad recognizing the right to “legal capacity”—the right to make legally binding decisions for oneself—as a basic human right. Despite this recognition, adult guardianship—the state court procedure by which a person is declared incapacitated and stripped of decision-making rights—remains a widely used tool, particularly for older adults who have suffered financial exploitation or loss. For this population, guardianship is considered an unpleasant yet necessary remedy to address their financial harms. But what if the cure does not really work as intended, while other, less intrusive means could prevent and redress …