Courts Commons^™

Marbury V. Madison In The U.K.: Brexit And The Creation Of Judicial Supremacy, David Campbell

Cardozo Law Review

The article argues that the UK Supreme Court's decision in *Miller* (R (Miller) v. Secretary of State for Exiting the European Union) marks a significant shift in the UK's constitutional framework, establishing judicial supremacy akin to the US Supreme Court's role following *Marbury v. Madison*. This shift occurred through the court's assertion of authority to instruct Parliament, challenging the traditional sovereignty of Parliament and creating a de facto constitutional court without explicit public or political debate.

Dangerous Or Benign Legal Fictions, Cognitive Biases, And Consent In Contract Law, Chunlin Leonhard

St. John's Law Review

(Excerpt)

Building on existing scholarship on legal fictions and empirical psychological research about human decision making processes, this Article offers a systematic approach to distinguishing a dangerous legal fiction from a benign one.

This Article begins by summarizing scholarly discussions about legal fictions in general, courts’ typical uses of legal fiction, and more general concerns with legal fictions. Part II of the Article summarizes scientific findings about how humans think and what our common cognitive biases are. It then explains how findings regarding the human decision-making process may shed light on why certain legal fictions can be dangerous. This Section …

Three Approaches To Freedom Of Speech, R. George Wright

Et Cetera

Although it is proper to classify many free speech writers as first rate, it is possible that the age in which they write inhibits the production of genuinely great work with a genuinely common goal. With this in mind, we must look at whether there is free speech protection for nonrepresentational art, instrumental music, and nonsense under the Court’s case law. The underlying problem for today’s free speech theorists is no doubt multifaceted. But one important aspect thereof may involve our collective poring over the glittering remnants of a shattered mirror, even as our understandings of the possible uses of …

Sb 174 - Probation And Early Release, Andrew J. Navratil, Jobena E. Hill

Georgia State University Law Review

The Act amends Georgia’s probation laws by shortening the amount of time offenders spend on probation, providing local supervision, and creating a more efficient use of resources within the criminal justice system. The Act permits the transfer from parole to probation and the use of local supervision for certain offenders. The Act also allows for early release of probationers who meet the terms of their probation. The Act creates a process to automatically generate a request for early termination of probation for certain low-level offenses after the offender successfully completes three years of probation.

When Facts Don’T Matter, Eric Berger

Nebraska College of Law: Faculty Publications

We are used to thinking that facts shape legal outcomes, but sometimes the Supreme Court wants nothing to do with facts. In some high-profile constitutional decisions, the Roberts Court has ignored important congressional findings, deeming irrelevant facts that document the very mischief Congress sought to remedy. Similarly, in these same cases the Court exploits the muddy line between facial and as-applied challenges to avoid confronting particular facts. The Justices in these cases do not question the veracity of seemingly relevant facts. Rather, they write their opinions as though these facts don’t matter. This Article examines the Court’s penchant for brushing …

Judicial Externships: Sharing Current Practices, Dinah Lennon Archambeault

Duke Law Master of Judicial Studies Theses

The need for externships has risen over the years as the importance of providing experiential education to supplement traditional doctrinal law school education has become generally acknowledged. Despite the many articles on externships, few, if any, have addressed how judicial externs are selected and how judicial externships are structured in the courts.

It was necessary to conduct qualitative research to determine how various courts address their extern programs, if at all. Based on the research I have undertaken, practices vary among courts and judges. Not only is there no uniform practice with respect to which courts and even judges place …

Innovative Justice: Federal Reentry Drug Courts – How Should We Measure Success?, Timothy D. Degiusti

Duke Law Master of Judicial Studies Theses

In response to the drug abuse and addiction epidemic in the United States, innovative ways of dealing with non-violent drug offenders within the criminal justice system began to emerge in the late 1980s. Special court dockets – commonly referred to as drug courts – were developed featuring an interdisciplinary team of criminal justice and mental health professionals, led by a presiding judge. Drug courts and other problem-solving courts have proliferated within the state court system, numbering 3,057 by the end of 2014. The use of such courts is expanding among the states, but the federal courts have been slow to …

Certification Of Legal Questions To The Utah Supreme Court, David Nuffer

Duke Law Master of Judicial Studies Theses

For 30 years, federal courts have certified questions of state law to the Utah Supreme Court. This thesis examines the history and utility of the process and recommends changes to the process in the federal district court and in the Utah Supreme Court.

The current focus of federal judges in certifying questions is on utility for the case before the court. But certification of questions from a federal court to a state court is an expression of federalism—a humble acknowledgment by a federal authority which is often regarded as supreme that the state is the proper and best authority to …

Clerking For God’S Grandfather: Chauncey Belknap’S Year With Justice Oliver Wendell Holmes, Jr., Todd C. Peppers, Ira Brad Matetsky, Elizabeth R. Williams, Jessica Winn

Scholarly Articles

Most of what we know about law clerks comes from the clerks themselves, usually in the form of law review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their experiences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contradistinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer a real-time, …

The Office Of The Prosecutor: Seeking Justice Or Serving Global Imperialism?, Shannon Fyfe

Scholarly Articles

The international criminal courts and tribunals, especially the ICC, have been strongly criticized for their susceptibility to political influence. Some have argued that the ICC has a distinctly Western bias and is participating in a new kind of imperialism in Africa. Others argue that history and the complicity of the West should disqualify the international community from demanding the prosecution of individuals participating in conflicts resulting directly from colonialism. Many have focused on the nature of the creation of the judicial bodies and the inherent political nature of judicial decisions regarding whom to prosecute. In this article, I offer a …

Disbelief Doctrines, Sandra F. Sperino

Faculty Articles and Other Publications

Employment discrimination law is riddled with doctrines that tell courts to believe employers and not workers. Judges often use these disbelief doctrines to dismiss cases at the summary judgment stage. At times, judges even use them after a jury trial to justify nullifying jury verdicts in favor of workers.

This article brings together many disparate discrimination doctrines and shows how they function as disbelief doctrines, causing courts to believe employers and not workers. The strongest disbelief doctrines include the stray comments doctrine, the same decisionmaker inference, and the same protected class inference. However, these are not the only ones. Even …

Supreme Court Of The United States, October Term 2018 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Disciplining Deference: Strengthening The Role Of The Federal Courts In The National Security Realm, Dominic X. Barceleau

Notre Dame Law Review

This Note will argue that federal courts need to be more “disciplined” in their deference determinations in order to effectively check the Executive’s power. Part I will look at the Constitution and its allocation of foreign relations powers for evidence of the appropriate amount of deference that ought to be shown by the judiciary. While the text of the Constitution is largely silent on this question, Part I will show that this silence does not exclude a role for the judiciary in foreign affairs. Part II will proceed to discuss several important Supreme Court decisions that have helped to flesh …

The Lottery Docket, Daniel Epps, William Ortman

Law Faculty Research Publications

No abstract provided.

Contents

Tennessee Law Review

No abstract provided.

Debunking The Ncaa's Myth That Amateurism Conforms With Antitrust Law: A Legal And Statistical Analysis, Thomas A. Baker Iii, Marc Edelman, Nicholas M. Watanabe

Tennessee Law Review

This article provides the first detailed study to show that paying college football players does not decrease fan interest in watching college football-substantially debunking the NCAA's myth that amateurism conforms to the requirements of antitrust law. Part I of this article details the history of collegiate sports in the United States and the NCAA's amateurism rules. Part II examines the origins and evolution of the NCAA's procompetitive presumption defense of amateurism; a legal fiction that presumes consumer interest in amateurism justifies a quasi-antitrust exemption for the NCAA's "no pay" rules. Part III sets the framework for our empirical study by …

Faithful Execution: The Persistent Myth Of Widespread Prosecutorial Misconduct, Timothy C. Harker

Tennessee Law Review

Professors, politicians, activists, journalists, and bloggers alike stand ready to denounce prosecutorial misconduct-the more egregious the misconduct, the more vociferous the denunciation, and rightly so. Ordinarily, such public denunciation would have a salubrious effect. Unfortunately, this remedial process has been hijacked by those who insist that prosecutorial misconduct is widespread and has infected all facets of the criminal justice system, to the detriment of defendants and the consternation of the public. Their vitriol precludes a dispassionate evaluation of the criminal justice system generally and prosecutorial misconduct specifically. This article demonstrates that, contrary to expectations, prosecutorial misconduct occurs with reassuring infrequency. …

Restoring Fairness To Campus Sex Tribunals, Cynthia V. Ward

Tennessee Law Review

No abstract provided.

Contents

Tennessee Law Review

No abstract provided.

A Fighting Chance? Small Family Farmers And How Little We Know, Jamey Mavis Lowdermilk

Tennessee Law Review

No abstract provided.