Courts Commons^™

Judicial Impartiality In An Empirical Era, Tigran W. Eldred

Faculty Scholarship

The psychological dimensions of judicial impartiality is a topic of considerable interest, with a growing body of scholarship focused on the reasons judges often are unable to perceive their own biases.¹ The attention is not on why judges intentionally downplay factors that can undermine their own objectivity, but rather on the empirical reasons that everyone, judges included, tend to be unaware of the impact of their own biases. This “bias blind spot,”² a product of a series of unconscious cognitive and motivational factors, is at the center of the discussion, with even the Supreme Court making passing reference …

Reefer Madness In Federal Court: An Overview Of How Federal Courts Are Dealing With Cannabis Litigation And Why It Is Necessary To “Dig Into The Weeds”, Blake Marvis

Lewis & Clark Law Review

Litigation stemming from the state-legal cannabis industry has presented many unique questions for federal courts to grapple with. Can federal courts provide equitable relief to state-legal cannabis litigants, despite being in violation of federal law? Can workers in the state-legal cannabis industry sue their employers to recover required minimum wage under federal statutes? Is a contract that is made in a state-legal cannabis market automatically void? This Comment examines the precarious nature of state-legal cannabis litigation in federal courts through a dissection of how litigation has progressed. It also examines the framing of the arguments made in cannabis disputes. Although …

The Role Of Circuit Courts In The Formation Of United States Law In The Early Republic, David P. Waddilove

Journal Articles

The Role of Circuit Courts in the Formation of United States Law in the Early Republic: Following Supreme Court Justices Washington, Livingston, Story, and Thompson. ByDAVID LYNCH. [Portland, OR: Hart Publishing, 2018. xxi +233 pp. Hardback £70.00. ISBN 978-15-09910-85-4.]

The chosen justices were: Bushrod Washington, who served 1801–1829; H. Brockholst Livingston, 1807–1823; Joseph Story, 1811–1845; and Smith Thompson, 1823–1843.

Mixed Signals: What Can We Expect From The Supreme Court In This Post-Ada Amendments Act Era?, Nicole Buonocore Porter

Touro Law Review

No abstract provided.

Endrew F. Clairvoyance, Mark C. Weber

Touro Law Review

No abstract provided.

About A Revolution: Toward Integrated Treatment In Drug And Mental Health Courts, Sara Gordon

All Faculty Publications

and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “cooccurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet diagnostic criteria for one disorder will also meet criteria …

The Historical Case For Constitutional "Concepts", Glenn E. Chappell

University of Richmond Law Review

The concepts/conceptions dichotomy is prominent in both the philosophy of language and the field of constitutional interpretation. It is most prominently illustrated through the provisions in the Constitution that contain broad, open-ended moral language. Those who hold the “conceptions” view believe that the legal content of those provisions includes both abstract moral concepts and its communicators’ subjective beliefs about, or conceptions of, how those concepts should apply. Under this view, the judge’s role is mostly empirical: he is tasked with examining historical evidence to ascertain those conceptions, which in turn supply applicational criteria by which he can decide specific cases. …

Partnership Lost, Christine Hurt

University of Richmond Law Review

A century ago, two distinct business entities existed that could best be defined by describing either one of them as simply not the other. The corporation and the general partnership were mirror images of one another and opposites on a spectrum of corporate governance, limited liability, and taxation. Partnerships, seen as small, livelihood enterprises between active-owner partners, had personal liability but pass-through taxation. Corporations, seen as larger, capital-intensive enterprises with passive-owner shareholders, had limited liability but double taxation. The tax distinctions survive today, but the stereotypical partnership does not; in fact, the modern partnership is more corporation-like than partnership-like.

Today, …

Of Hats And Robes: Judicial Review Of Nonadjudicative Article Iii Functions, Jeffrey L. Rensberger

University of Richmond Law Review

We are accustomed to thinking of Article III courts and judges deciding cases and controversies. But, federal judges and courts have historically also engaged in official but nonadjudicative activities. In addition to a history of federal judges serving on nonjudicial commissions, federal judges and the Supreme Court participate in the rulemaking process for the federal procedural and evidentiary rules. Although some argue to the contrary, the Supreme Court has approved such arrangements in the face of separation of powers objections. Since Article III officers and courts perform nonadjudicative duties, the question arises of how federal courts who address a challenge …

Evaluating A Permanent Court Solution For International Investment Disputes, Emily Palombo

University of Richmond Law Review

Despite the original objective of investor state dispute settlement (“ISDS”)—to create an unbiased arbitration mechanism to resolve conflicts between states and foreign investors—ISDS tribunals have gained the reputation of being one-sided, nontransparent, and inconsistent in decisions rendered. A major reform proposed to address the criticism of ISDS is the creation of one permanent tribunal, rather than numerous ad hoc tribunals constituted separately for each investment dispute. Discussion of ISDS reform in light of its historical context poses the question: is ISDS really a broken system, or have our global priorities and concerns changed over time? While improvements can be made, …

Erie Doctrine, State Law, And Civil Rights Litigation, Alexander A. Reinert

Articles

How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in …

Obtaining And Enforcing A Security Interest In Local Currency Under Article 9 Of The Ucc, Marina C. Leary

Law Student Publications

Community currency is known by many names including complementary currency, alternative currency, and parallel currency. Community currency operates alongside an official or national currency (e.g., dollars or euros) with the purpose of circulating within a small geographic area to facilitate the sale of goods and services. In other words, community currency refers to a privatized form of currency that is not backed by a government entity. With the increased use of community currency, it has the potential to serve as collateral for a security interest under the Article 9 of the Uniform Commercial Code. Although there are several types of …

Tweeting With A Purpose: Interpreting "Corrupt Persuasion" In 18 U.S.C. § 1512(B), Jessica Ochoa

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Forum Selling Abroad, Jens Frankenreiter, Stefan Bechtold, Daniel Klerman

Scholarship@WashULaw

Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff manipulation of …

Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang, Rachel A. Campbell

SMU Annual Texas Survey

No abstract provided.

The Soft Power Of Dissent: The Impact Of Dissenting Opinions From The Russian Constitutional Court, Alexandra V. Orlova

Vanderbilt Journal of Transnational Law

This Article poses a question regarding the importance of judicial dissents emanating from constitutional courts. It examines the power of dissents emanating from the Russian Constitutional Court, given the fact that the Russian government has invested a significant effort in suppressing dissenting voices. The very presence of dissents in the Russian Constitutional Court poses an interesting question regarding their impact on democracy, consensus building, and civil society. This Article argues that while dissents coming from the Russian Constitutional Court may not be binding, they carry a great deal of "soft power." Judicial dissents aid in challenging commonly espoused consensus both …

Beyond Samuel Moyn's Countermajoritarian Difficulty As A Model Of Global Judicial Review, James T. Gathii

Vanderbilt Journal of Transnational Law

This Article responds to Samuel Moyn's critique of judicial review and his endorsement of judicial modesty as an alternative. By invoking the countermajoritarian difficulty, Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. I reject Moyn's claim that this kind of judicial modesty should define the role of courts for all time. By applying the countermajoritarian difficulty beyond its United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts globally. Moyn's vision says nothing about when it would be appropriate for courts to rule …

Measuring Selection Bias In Publicly Available Judicial Opinions, Alexander A. Reinert

Articles

To have an informed discussion about judicial performance and efficiency, we will sometimes want to explore what judges actually do on an everyday level. But in many ways, courts have not always been paragons of transparency. Often the parties are the only people who are aware of what action a court has taken in a case.

This paper explores that dynamic, in the context of decisions made by federal trial courts at one particular procedural stage--decisions made on motions to dismiss for failure to state a claim--Rule 12(b)(6) motions. There is growing interest in the work of federal trial courts, …

The Bemba Appeals Chamber Judgment: Impunity For Sexual And Gender-Based Crimes?, Susana Sacouto, Patricia Viseur Sellers

Scholarly Articles in Law Reviews & Journals

On June 8, 2018, a majority of the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of former military commander Jean-Pierre Bemba for the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR) between October 2002, and March 2003. The decision was clearly a disappointment for the victims of the crimes committed by Bemba’s troops, who have been waiting for more than fifteen years for a measure of justice. Significantly, the acquittal also means that sixteen years after the Rome …

Court Personnel Attitudes Towards Medication-Assisted Treatment: A Statewide Survey, Barbara Andraka-Christou, Meghan Gabriel, Jody L. Madeira, Rod D. Silverman

Articles by Maurer Faculty

Background: Despite its efficacy, medication-assisted treatment (MAT) is rarely available in the criminal justice system in the United States, including in problem-solving courts or diversionary settings. Previous studies have demonstrated criminal justice administrators' hostility towards MAT, especially in prisons and jails. Yet, few studies have examined attitudes among court personnel or compared beliefs among different types of personnel. Also, few studies have explored the relationship between MAT education/training and attitudes. Finally, few studies have directly compared attitudes towards methadone, oral buprenorphine, and extended-release naltrexone in the criminal justice system.

Methods: We modified a survey by Matusow et al. (2013) to …