Courts Commons^™

Legalizing Midwifery In Missouri, Michael A. Wolff

All Faculty Scholarship

Two decades after the Missouri Supreme Court upheld an injunction against the practice of midwifery, two midwives became lobbyists for the cause and, with the remarkable cooperation of friendly legislators and lobbyists, got a provision inserted in a health bill legalizing the practice of tocology, a synonym for midwifery that went unnoticed by legislators who voted for the lengthy bill in which it was inserted. Medical associations sued to invalidate this "stealth" provision but their efforts failed when the Missouri Supreme Court declined to grant standing to the doctors to "protect" the interests of the public. Thirteen years later, the …

Intervenors At The Supreme Court Of Canada, Geoffrey D. Callaghan

Dalhousie Law Journal

My aim in this paper is to offer a normatively attractive and explanatorily sound interpretation of the Supreme Court of Canada’s approach to third party intervention. The crux of my interpretation is that the policy the Court has developed on intervenors allows it to strike a reasonable balance among a number of competing democratic considerations, all of which have value in the context of judicial decision making. In this respect, the Court should be commended for identifying a way to liberalize a practice that possesses many democratically-attractive features, but also the inherent capacity to undermine the democratic standing of the …

Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Circumventing Standing To Appeal, Ryan W. Scott

Articles by Maurer Faculty

The requirement of standing to sue in federal court is familiar, but the related requirement of standing to appeal within the Article III judiciary is badly undertheorized. The Supreme Court’s opinions suggest (at least) four constitutional rationales. Standing to appeal might serve the same functional purposes as standing to sue, or it might follow from the fact that appeals involve two separate courts, or it might be triggered because the underlying case or controversy has become moot, or because it has reached the point of final judgment.

Compounding the confusion, the requirement of standing to appeal can have troubling consequences …

Diverse And Inclusive High Courts: A Global And Intersectional Perspective, Alice J. Kang, Miki Caul Kittilson, Valerie Hoekstra, Maria C. Escobar-Lemmon

Department of Political Science: Faculty Publications

Critical race feminists call attention to the ways in which multiple and overlapping forms of privilege and discrimination shape individual experiences and perspectives. In this article, we argue that judiciaries cannot be fully inclusive if their composition does not reflect a society’s intersecting sources of disadvantage. We consider intersectional inclusion on high courts from a compar-ative perspective. Most existing practices of representation on high courts promote the inclusion of groups as if they are internally homogenous. We explore the attempts at and successes of promoting intersectional inclusion in the context of the high courts of Canada and South Africa. Although …

The Adjudication Business, Pamela K. Bookman

Faculty Scholarship

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts also challenges the traditional accounts of the competitive relationship between and among courts and arbitral tribunals for this business. London and New York have long been considered the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond.

The emerging scholarship addressing these new courts tends to …

The Innovation & Limitation Of Arbitral Courts, Pamela K. Bookman

Faculty Scholarship

No abstract provided.

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.

Case-Linked Jurisdiction And Busybody States, Howard M. Erichson, John C.P. Goldberg, Benjamin Zipursky

Faculty Scholarship

No abstract provided.

Interring The Immigration Rule Of Lenity, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tie-breaker of sorts, a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even …

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern …

Packing And Unpacking State Courts, Marin K. Levy

Faculty Scholarship

When it comes to court packing, questions of “should” and “can” are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and Congress simply cannot do. Even though the Constitution’s text does not directly prohibit expanding or contracting the size of courts for political gain, many have argued that there is a longstanding norm against doing so, stemming from a commitment to judicial independence and separation of powers. And so (the argument goes), even though the political branches might otherwise be tempted to add or subtract seats to change the Court’s ideological makeup, …

The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg

Faculty Scholarship

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative …

Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas

Faculty Scholarship

Seventeen decisions in nine U.S. district courts from 2006 through 2019 have taken a demonstrably misgrounded starting point for Rooker–Feldman analysis. The cases have read language from a 2006 Supreme Court opinion, in which the Court quoted criteria stated by the lower court, as their guideline. But the Court summarily vacated the lower court’s judgment, and it had previously articulated, and has repeated, different criteria for federal courts to follow. The district-court decisions all appear to have reached correct results, but the mistake about criteria should be recognized and avoided as soon as possible before it creates potential mischief. And …

Avoiding Judicial Discipline, Veronica Root Martinez

Faculty Scholarship

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and the rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into …

Virtual Criminal Courts, Deniz Ariturk, William E. Crozier, Brandon L. Garrett

Faculty Scholarship

Criminal courtrooms are among many workplaces to shut down and adopt virtual operations in response to the coronavirus pandemic. As criminal courts around the United States suspended in-person proceedings, virtual hearings, where parties appear through videoconference or teleconference technology, have allowed courts to remain in session while reducing the danger to public health. Courts at all levels, from small municipal courts to the U.S. Supreme Court, have been hearing arguments remotely. In 38 states, as well as the District of Columbia and Puerto Rico, courts have either mandated or encouraged the use of virtual hearings when appropriate. Federal courts …

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …

Should I Stay Or Should I Go: Student Housing, Remote Instruction, Campus Policies And Covid-19, Patricia E. Salkin, Pamela Ko

Scholarly Works

In March 2020, as the world scrambled to understand and address myriad public health and economic challenges unfolding from the novel coronavirus labeled COVID-19, higher education was forced into a tailspin. This article examines the legal and policy challenges that result from, among other issues, the congregate housing situations existing for on- and off-campus housing at colleges and universities. The legal issues demonstrate federalism at work and include; at the federal level, regulations and guidance from the White House, the Center for Disease Control (CDC) and the U.S. Department of Education; at the State level from gubernatorial executive orders, state …

The Inherent And Supervisory Power, Jeffrey C. Dobbins

Georgia Law Review

Parties to litigation expect courts to operate both
predictably and fairly. A core part of this expectation is
the presence of codified rules of procedure, which ensure
fairness while constraining, and making more
predictable, the ebb and flow of litigation.
Within the courts of this country, however, there is a
font of authority over procedure that courts often turn to
in circumstances when they claim that there is no
written guidance. This authority, referred to as the
“inherent” or “supervisory” power of courts, is an almost
pure expression of a court’s exercise of discretion in that
it gives courts the …

Free Speech And Off-Label Rights, Amy J. Sepinwall

Georgia Law Review

When a litigant invokes a constitutional right to
protect interests different from the ones underpinning
the right, he engages in what this Article calls an
off-label rights exercise. The Free Speech Clause has
recently become an especially prominent, and troubling,
site of off-label rights exercises. Two of the most
prominent cases in the Supreme Court’s last term
involved litigants who invoked their constitutional
rights to free speech to protect interests unrelated to
speech or expression. In Janus v. American Federation
of State, County, & Municipal Employees, a state
employee argued that forcing him to pay for the union’s
bargaining activities …