Courts Commons^™

The (Im)Partial Jury: A Trial Consultant’S Role In The Venire Process, Stephanie M. Coughlan

Brooklyn Law Review

Over the last four decades, trial consultants have become integral members of the venire process. Before the trial consulting field emerged, attorney-conducted voir dire focused too heavily on an attorney’s gut instincts and subconscious biases. This note highlights two concerns arising from attorney-conducted voir dire. First, in Batson v. Kentucky and its progeny, the Supreme Court addressed the unconstitutionality of a system that permits attorneys to strike jurors based on unfounded prejudices. Although Batson and its progeny prohibit lawyers from exercising discriminatory challenges against prospective jurors, this practice can easily go undetected. Second, as illustrated in Peña-Rodriguez v. Colorado, the …

Two Roads Diverged: Statutory Interpretation By The Circuit Courts And Supreme Court In The Same Cases, Lawrence Baum, James J. Brudney

Fordham Law Review

Scholars and judges have long disagreed on whether courts of appeals construing statutes ought to adapt their use of interpretive resources to Supreme Court approaches. If circuit courts and the Supreme Court approach statutory issues in similar ways, this can perhaps provide a measure of predictability for litigants and the public while conserving judicial resources; it may also enhance perceptions of fairness in the judicial system. Such normative arguments invite—even demand—a fuller understanding of the underlying descriptive reality: whether anything approaching uniformity or consistency actually exists. This Article aims to provide that understanding. It does so through an in- depth …

An Analysis And Critique Of Mental Health Treatment In American State Prisons And Proposal For Improved Care, Shelby Hayne

Scripps Senior Theses

Mental health treatment in state prisons is revealed to be highly variable, under-funded, and systematically inadequate. Existing literature exposes this injustice but fails to provide a comprehensive proposal for reform. This paper attempts to fill that gap, outlining a cost-effective, evidence-based treatment proposal, directly addressing the deficits in care revealed through analysis of our current system. In addition, this paper provides historical overviews of the prison system and mental health treatment, utilizing theoretical perspectives to contextualize this proposal in the present state of affairs. Lastly, the evidence is provided to emphasize the potential economic and social benefits of improving mental …

Disgorging Emoluments, Caprice L. Roberts

Marquette Law Review

This Article is about unjust enrichment. It includes a theory of an unjust

enrichment cause of action against executive actors who receive unlawful

emoluments. Interpretations of the boundaries of unlawful emoluments range

from receipt of a gift or benefit because of the position of power held to quid

pro quo exchanges of a thing of value in exchange for government information

or advantage. Wherever the proper line, the purpose of the law of unjust

enrichment is to prevent and undo benefits one has no right to retain. It

achieves those goals with the use of restitution remedies including

disgorgement of …

Police Surveillance Of Cell Phone Location Data: Supreme Court Versus Public Opinion, Emma W. Marshall, Jennifer L. Groscup, Eve Brank, Analay Perez, Lori A. Hoetger

Center on Children, Families, and the Law: Faculty Publications

The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. As technology evolves, courts must examine Fourth Amendment concerns implicated by the introduction of new and enhanced police surveillance techniques. Recent Supreme Court cases have demonstrated a trend towards reconsidering the mechanical application of traditional Fourth Amendment doctrine to define the scope of constitutional protections for modern technological devices and personal data. The current research examined whether public opinion regarding privacy rights in electronic communications is in accordance with these Supreme Court rulings. Results suggest that cell phone location data is perceived as more private …

Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn

Journal Articles

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by paroleboards as executive branch agents, rather …

Fallen Woman Further (Re)Framed: Jewels And Travels, Tragedies And Secrets, Judge Hortense Norris, Mae Quinn

Journal Articles

No abstract provided.

Fallen Woman (Re) Frame: Judge Jean Hortense Norris, New York City - 1912-1955, Mae C. Quinn

Journal Articles

No abstract provided.

Platform Procedure: Using Technology To Facilitate (Efficient) Civil Settlement., J.J. Prescott, Alexander Sanchez

Book Chapters

In this chapter, we explore the ability of courts to enhance the role of substantive law in case outcomes by reducing party litigation costs. When it becomes less costly for parties to engage actively in dispute resolution, the shadow of substantive law should, in theory, become more pronounced and case outcomes should change (and hopefully become more accurate/efficient on average). To empirically investigate this hypothesis, we examine the consequences of a large state court’s implementation of court-assisted online dispute resolution (ODR) tools for its small claims docket. A central goal of this technology is to reduce litigation costs of all …

The Most Revealing Word In The United States Reports, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such …

Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter

Faculty Scholarship

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

President Donald Trump's War On Federal Judicial Diversity, Carl W. Tobias

Law Faculty Publications

In Donald Trump's 2016 presidential campaign, the candidate promised to nominate and confirm federal judges who would possess ideologically conservative perspectives. Across President Trump's first twenty-seven months, the chief executive implemented numerous actions to effectuate his campaign pledge. Indeed, federal judicial selection may be the area in which President Trump has achieved the most substantial success throughout his first twenty-seven months in office, as many of Trump's supporters within and outside the government recognize. Nevertheless, the chief executive's achievements, principally when nominating and confirming stalwart conservatives to the appellate court bench, have imposed numerous critical detrimental effects. Most important for …

Filling The New York Federal District Court Vacancies, Carl W. Tobias

Law Faculty Publications

President Donald Trump contends that federal appellate court appointments constitute his foremost success. The president and the United States Senate Grand Old Party (GOP) majority have compiled records by approving forty-eight conservative, young, accomplished, overwhelmingly Caucasian, and predominantly male, appeals court jurists. However, their appointments have exacted a toll, particularly on the ninety-four district courts around the country that must address eighty-seven open judicial positions in 677 posts.

One riveting example is New York’s multiple tribunals, which confront twelve vacancies among fifty-two court slots. The Administrative Office of the United States Courts considers nine of these openings “judicial emergencies,” because …

Senator Chuck Grassley And Judicial Confirmations, Carl W. Tobias

Law Faculty Publications

Iowa Republican Senator Chuck Grassley finished his second term as Chair of the Senate Judiciary Committee with the early January 2019 adjournment of the 115th Congress. He was the first nonlawyer to lead the august committee over almost 200 years. A core panel duty is moving judicial nominees through the confirmation process, which helps senators discharge their constitutional advice and consent responsibility. Because the Chair plays an integral role—Grassley fulfilled this obligation in a critical, albeit controversial, manner—and because his service as Chair has ended, it is crucial to evaluate how the lawmaker discharged that important responsibility.

This Essay initially …

Symposium: This Case Is Moot, Jessica Bulman-Pozen, Adam Samaha

Faculty Scholarship

Forget guns for a moment. Imagine that, once upon a time, Boca Raton had a rule that prohibited its residents from transporting their golf clubs to driving ranges outside the city. Boca’s finest golfers challenged the constitutionality of the rule in court. Now imagine that the city thought twice and repealed the rule and that Florida then passed a statute authorizing people to transport their clubs to the driving ranges of their choice. The golfers could live happily ever after.

Unintended Consequences, Loopholes, And Gibberish: Why There Are Still Securities Act Class Actions In State Courts, Brian Elzweig

Texas A&M Law Review

This Article examines Congress’s decades-long attempt to ensure that securities class action lawsuits of national importance are litigated in federal courts. The intent is limiting strike suits. Congress attempted to curtail strike suits through the enactment of the Private Securities Litigation Reform Act (“PSLRA”). The PSLRA required heightened pleading requirements to ensure the validity of federal securities class actions. Instead of solving the dilemma, plaintiffs circumvented the PSLRA by bringing fraud cases as state law claims. To combat the circumvention of the PSLRA, Congress enacted the Securities Litigation Uniform Standards Act (“SLUSA”). SLUSA federally preempted state law claims based on …

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial …

Impact Of The Fastar Program On Civil Cases In The Superior Court In Pima County, Paula Hannaford-Agor

Faculty Publications

To address the shortcomings of compulsory arbitration, the Arizona Committee on Civil Justice Reform recommended implementation of a pilot program in which parties could opt for a "short trial" instead of compulsory arbitration. The Supreme Court of Arizona adopted the Committee's recommendation and approved experimental rules for the Fast Trial and Alternative Resolution (FASTAR) Program for a three-year period effective November 1, 2017. The pilot program was implemented in the Superior Court of Pima County. The National Center for State Courts collaborated with the Arizona Office of the Courts to assess the effectiveness of the program. The evaluation framework specifically …

Is Financial Difficulty Really Enough? The Battle Of The Circuits To Define Reasonable Cause For Small Businesses' Failure To Pay Taxes, Lyndsey Insani

Valparaiso University Law Review

No abstract provided.