Courts Commons^™

The Private Rights Of Public Governments, Seth Davis

Notre Dame Law Review

This Essay charts the analytical and doctrinal confusion arising from the category of “proprietary” interests in state standing law. This category might be taken literally to include only the ownership of property and interests that stem from it. It might refer to interests that are analogous to those that a private corporation might litigate, or instead to any type of financial injury a state might suffer. Other possibilities would limit “proprietary” interests to those interests recognized under the common law, or only those interests recognized under private law. Perhaps the most that can be said is that “proprietary” interests should …

Foreword: Some Puzzles Of State Standing, Tara L. Grove

Notre Dame Law Review

When should states have standing? In recent years, there has been an explosion in literature on that question. Yet, even today, there seem to be as many questions as answers. In this Foreword to the Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on state standing, I discuss a few such puzzles. First, should states have “special” standing when they sue the federal government—that is, greater access to federal court than private parties? Second, and conversely, should states have at least “equal” access to federal court, or should they face more barriers than private parties? These …

Whither Converging Narratives Of Justice In Transition? Transitional Justice And Judicial Reform In Taiwan, Agnes S. Schick-Chen

Washington International Law Journal

Referring to Taiwan’s recent transitional justice legislation as a first tentative step towards the possibility of judicial solutions for problems of injustice dating from the authoritarian era, this paper elaborates chances and difficulties of introducing the judiciary to the ongoing processes of coming to terms with the past in Taiwan. It intends to argue that apart from the specific circumstances of Taiwan’s transition to democracy after the lifting of martial law in 1987, the avoidance of a judicial approach to transitional justice was both caused by and the reason for a deficit in narratives of judicial justice. Together with the …

Why Women: Judging Transnational Courts And Tribunals, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Elisabeth Haub School of Law Faculty Publications

Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more …

Judges Versus Jurors: Biased Attributions In The Courtroom, Goran Dominioni, Pieter Desmet, Louis Visscher

Cornell International Law Journal

The fundamental purpose of a tort trial is to allocate responsibility. However, attributing fault is difficult, and decades of research in psychology have shown that human beings are prone to make systematic errors in performing this task. What can be done about this? The United States and countries in continental Europe adopt diametrically opposed strategies to reduce errors in the attribution of responsibility in the courtroom. American law delegates fact-finding to jurors and makes some type of evidence inadmissible in court to protect jurors from potentially biasing information, such as character evidence. European legal systems, instead, employ almost exclusively judges …

Judging During Crises: Can Judges Protect The Facts?, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

With the advent of instantaneous information and the trend toward shrinking adherence to the truth, the conversation surrounding the ability of judges to conduct outside research into the matters before them is gaining urgency. In a “post-truth” world, the role that the judiciary plays in our democracy must shift from trier of fact to guardian of factual integrity. And to do this, the professional ethics rules assigned to the judiciary may need re-evaluation.

This Essay argues that the judiciary's ambivalence to its role as fact finder must be overcome, and where appropriate, judges may be empowered to seek out supplemental …

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Scholarship

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …

The Territorial Reach Of Federal Courts, A. Benjamin Spencer

Faculty Publications

Federal courts exercise the sovereign authority of the United States when they assert personal jurisdiction over a defendant. As components of the national sovereign, federal courts' maximum territorial reach is determined by the Fifth Amendment's Due Process Clause, which permits jurisdiction over persons with sufficient minimum contacts with the United States and over property located therein. Why, then, are federal courts limited to the territorial reach of the states in which they sit when they exercise personal jurisdiction in most cases? There is no constitutional or statutory mandate that so constrains the federal judicial reach. Rather, it is by operation …

State Constitutionalism In The Age Of Party Polarization, Neal Devins

Faculty Publications

No abstract provided.

Judging Judges Fifty Years After – Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In Chicago, Illinois--and in courtrooms across the United States--judicial misconduct has affected trial outcomes as long as there have been trials. While Judge Julius Hoffman's conduct in the “Chicago Eight” trial is an egregious example of judicial behavior toward criminal defendants, this piece's examination of at least ten different categories of misconduct in dozens of cases makes the argument that misbehavior by judges is less of an exception to the rule of impartiality than the thinking public might know. In considering these brazen examples, practitioners and academics alike can evaluate how to best confront the extent to which conduct like …

Fictional Pleas, Thea Johnson

Indiana Law Journal

A fictional plea is one in which a defendant pleads guilty to a crime he has not committed, with the knowledge of the defense attorney, prosecutor, and judge. With fictional pleas, the plea of conviction is detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating noncriminal consequences. In this context, the …

State Standing And National Injunctions, Bradford Mank, Michael E. Solimine

Notre Dame Law Review

Most of the growing literature on national injunctions makes only passing mention, if at all, of states being plaintiffs or of the appropriateness of state standing and how it might bear on the geographic scope of an injunction. This Essay undertakes to fill that gap in a more extended way. Part I of the Essay addresses the issue of state standing in suits against the federal government, and argues that such standing is well grounded in the traditional parens patriae powers of states and should be permitted to protect the health, welfare, and natural resources of their citizens. That is, …

Reining In State Standing, Ann Woolhandler, Michael G. Collins

Notre Dame Law Review

In upholding standing in Massachusetts v. EPA, Justice Stevens said that states “are not normal litigants for the purposes of invoking federal jurisdiction.” While one might agree that the states are not normal litigants, that abnormality might well suggest that states should get standing less easily than private parties.

As a historical matter, states were limited in the kinds of cases they could bring in the federal courts. States typically could not litigate their sovereignty interests (their powers to govern to the exclusion of other governments), nor could they litigate their parens patriae interests (the interests of their citizens) …

Law Library Blog (July 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Rochac Hernández Et Al. V. El Salvador, Kimberly E. Barreto

Loyola of Los Angeles International and Comparative Law Review

This case is about the forced disappearance of five children during El Salvador’s Civil War. The State forcedly took thousands of children to curb rebel forces in rural areas. Unsurprisingly, the Court found violation of several articles of the American Convention, but the case is notable because it addresses Article 19 (Rights of the Child), an article of the Convention rarely discussed.

The Singapore International Commercial Court: The Future Of Litigation?, Man Yip

Research Collection Yong Pung How School Of Law

The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution …

Advocacy Before The Eleventh Circuit: A Clerk’S Perspective, Kevin Golembiewski, Jessica Arden Ettinger

University of Miami Law Review

Appellate attorneys must tailor their advocacy to the court hearing their appeal. Each court of appeals has different jurisprudence, rules, traditions, and decision-making processes. Yet there are few articles on appellate advocacy tailored to a particular court. We wrote this article to help fill that gap. As former law clerks for the United States Court of Appeals for the Eleventh Circuit, we offer advice specifically for attorneys who practice before the Eleventh Circuit. Our advice is based on our experiences as clerks, as well as our analysis of the Eleventh Circuit’s rules, procedures, and public statistics. We offer no inside …

Why Don’T Judges Case Manage?, Hon. Jennifer D. Bailey

University of Miami Law Review

The problems of cost and delay experienced by parties seeking civil justice have been the subject of complaints for nearly one hundred years, going back to the days of Roscoe Pound. In the past few years, court leadership across the country has emphasized judicial case management as a significant tool for delivery of cost-effective, fair, and timely civil justice. The declining civil caseload has brought new urgency to these problems as evidence grows that litigants are deserting the civil justice system. Calls for case management to contain cost and delay have come from the Chief Justice of the United States, …

Thinking Slow About Abercrombie & Fitch: Straightening Out The Judicial Confusion In The Lower Courts, Bruce N. Cameron, Blaine L. Hutchison

Pepperdine Law Review

In Abercrombie & Fitch, the U.S. Supreme Court fundamentally changed the way that Title VII religious accommodation cases are litigated and evaluated. This paper analyzes Abercrombie, explains how the Court eliminated religious accommodation as a freestanding cause of action, and suggests an altered proof framework for plaintiffs seeking an accommodation. The paper also explores the conflict between employee privacy rights and classic proof requirements for religious sincerity. The lower courts have largely failed to apprehend the change mandated by Abercrombie, with the result that their opinions are in disarray. The paper includes a chart organizing the diverse lower court opinions.

Judicial And Practitioner Perspectives On Adr, Young Hye Chun

Pepperdine Dispute Resolution Law Journal

No abstract provided.