Courts Commons^™

Communicating Punishment, Marah Stith Mcleod

Journal Articles

Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state's reasons for imposing a death sentence may not be executed. Outside of capital punishment, the answer is still open. This Article begins to fill that gap, focusing on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.

Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their …

Symbolism And The Thirteenth Amendment: The Injury Of Exposure To Governmentally Endorsed Symbols Of Racial Superiority, Edward H. Kyle

Michigan Journal of Race and Law

One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Give Me Your Tired, Your Poor (Unless They Are From “One Of Three Mexican Countries”): Unaccompanied Children And The Humanitarian Crisis At The U.S. Southern Border, Samantha R. Bentley

University of Richmond Law Review

This Comment argues that the United States’s response to the humanitarian crisis at its border is wholly inadequate. It argues that the government chose to advance two policies, Zero Tolerance and Family Separation, that exacerbated the humanitarian crisis at the border. These policies facilitated practices that violated domestic and international law. Most importantly, this Comment argues that the United States government traumatized one of the most vulnerable groups of people in the world: children.

Excessive Force: A Feasible Proximate Cause Approach, Latasha M. James

University of Richmond Law Review

Through an analysis of the statutory and case law surrounding the use of excessive force, this Comment will review how differentiating applications of the law have led to varying and sometimes unjust results. Jurisdictions differ regarding what pre-shooting conduct can be considered, what the “objective reasonableness” standard encompasses, and how tort law should impact this analysis. Therefore, this Comment works to provide a framework for the consistent application of the objective reasonableness standard. Part I reviews the proscribed levels of force, noting when the use of force becomes excessive, and discusses the tort concept of proximate cause and how the …

The Corporate Chameleon, Megan Wischmeier Shaner

University of Richmond Law Review

This Article seeks to address what is currently missing from corporate law—a clear way of determining “officer” status as that distinct legal role is contemplated in corporate jurisprudence. Part I discusses the three primary actors involved in the internal governance of the corporation—directors, stockholders, and officers—and how the law defines each one. While corporate law clearly contemplates officers as a distinct role, a quick comparison of the three reveals a failure to identify with any precision the bounds of “officer” status. Part II looks to other areas of the law for guidance in defining and identifying the officers of the …

Why Can't We All Just Cher?: Drag Celebrity Impersonators Versus An Ever-Expanding Right Of Publicity, Emily Hoenig

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Fines, Fees, And Filing Bankruptcy, Pamela Foohey

Scholarly Works

This essay was written in conjunction with the “Court Debt”: Fines, Fees, and Bail, Circa 2020 symposium held during the Association of American Law Schools' 2019 annual meeting. The essay details the extent to which "court debt" -- civil and criminal fines, fees, and interest -- can be dealt with by filing bankruptcy. In short, although filing bankruptcy on balance may help people deal with court debt and other debts, the barriers that people face to filing raise questions about the accessibility of civil courts and suggest that the consumer bankruptcy system itself is yet another place in which race …

An Examination Of How The Canadian Military’S Legal System Responds To Sexual Assault, Elaine Craig

Articles, Book Chapters, & Popular Press

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only one soldier has been convicted …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Policing Procedural Error In The Lower Criminal Courts, Justin Murray

Publications

The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …

#Metoo And Mass Incarceration, Aya Gruber

Publications

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020). The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime …

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Publications

No abstract provided.

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Faculty Scholarship

This Article examines the states' response to Epic Systems v. Lewis, which held enforceable under the Federal Arbitration Act (FAA) mandatory arbitration agreements that require employees to waive their participation in collective and class actions in employment contracts. Recent evidence shows that mandatory arbitration can erode access to justice for and deterrence of employment law claims. States in response are considering qui tam statutes, which assign the state interests in penalties for employment law violations to private enforcers in return for a bounty, to substitute for the loss of class action enforcement after Epic Systems.

These statutes can …

From Trulia To Akorn: A Ride On The Roller Coaster Of M&A Litigation, Pierluigi Matera, Ferruccio M. Sbarbaro

Faculty Scholarship

In recent years, M&A litigation has experienced a dramatic increase, culminating with a peak in 2015, when over 96. of publicly announced mergers were challenged in a shareholder lawsuit. A large number of these lawsuits were frivolous and vexatious, since most claims were filed by plaintiffs' attorneys just to extract some fees with little effort. Some abusive practices emerged, signalling an alarming exploitation of the system. One scheme that plaintiffs' attorneys put in place was the disclosure-only settlement. There, the stockholders obtained some modest supplemental disclosures, the plaintiff's attorneys got significant fee awards from the defendant directors and the defendant …

Texas Mdl, D. Theodore Rave, Zachary D. Clopton

Lewis & Clark Law Review

Federal multidistrict litigation (MDL) gets all the attention. This mechanism for consolidating cases filed around the country in a single federal district court for pretrial proceedings has become the dominant mode of resolving mass torts in U.S. courts. But not all mass adjudications find their way into federal court. Texas, like about half of the states, has developed an MDL mechanism to coordinate proceedings within its own courts. In this Essay, we examine the history, doctrine, and data of Texas MDL. Although Texas modeled its approach on the federal MDL statute, the Texas MDL system differs in important ways from …

What Do Mdl Leaders Do? Evidence From Leadership Appointment Orders, David L. Noll

Lewis & Clark Law Review

In federal multidistrict litigation (MDL), district courts regularly appoint attorneys to manage the litigation of cases that are transferred to a single district court for coordinated pretrial proceedings. Orders appointing MDL leaders serve as a constitution or charter for a particular MDL, reallocating functions that otherwise would be performed by individually retained plaintiffs’ attorneys to court-appointed leaders. As such, they perform a crucial role in the “MDL model” of aggregate litigation and settlement. Yet in spite of their importance, knowledge of these orders is mostly folk wisdom.

This Article presents preliminary findings from a study of leadership appointment orders in …

Procedural Self-Inflicted Wounds?, Joshua P. Davis, Brian J. Devine

Lewis & Clark Law Review

A proposal has recently come before the Federal Civil Rules Advisory Commit- tee to expand the ability of parties in multidistrict litigation to seek immediate interlocutory appellate review. This Essay suggests that the proposal is unwise as a matter of policy. It would make MDL litigation more expensive and less efficient. Counterintuitively, it may even harm the very large corporations who are championing the change. This Essay explains why that might occur—why large corporate defendants may pursue legal innovations that harm them—a possibility with implications well beyond interlocutory appellate review.

Multidistrict Litigation And Common Law Procedure, Alexandra D. Lahav

Lewis & Clark Law Review

On the 50th anniversary of the Multidistrict Litigation Act, the Act has gotten more attention than ever. One area that has led to significant controversy is the use of judicial discretion to craft procedures to manage MDLs. It is generally agreed that judges exercise discretion to create innovative procedures to resolve large-scale aggregate litigation transferred to their courts and that judges learn from approaches in previous MDLs that they think were successful in crafting these procedures. The controversy is that some think that this procedural approach is both exceptional and lawless. This Essay argues against this view, showing how the …

Multidistrict Litigation And Personal Jurisdiction, Zachary T. Nelson

Lewis & Clark Law Review

Under the Fourteenth Amendment’s Due Process Clause, a court cannot lawfully adjudicate a party’s rights or obligations unless, among other things, that court possesses sufficient personal jurisdiction over the party. The means by which a court may obtain such jurisdiction have grown increasingly narrow in recent years. Parallel to that trend has been the meteoric rise of multidistrict litigation (MDL), in which the Judicial Panel on Multidistrict Litigation transfers and consolidates numerous civil cases in a single federal court that, in many instances, lacks personal jurisdiction over one or more parties. Although MDL is statutorily limited to “pretrial proceedings,” 97% …