Courts Commons^™

A Critique Of Canadian Jurisprudence On The Therapeutic Privilege Exception To Informed Consent, Michael Hadskis

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada’s landmark decisions in Hopp v Lepp and Reibl v Hughes furnished a general analytical framework for informed consent actions that remains fully intact today. This article sets its gaze on a specific aspect of the framework, dubbed “therapeutic privilege,” that permits physicians to deviate from their general duty to disclose material, treatment-related risks to competent patients. Specifically, the privilege allows information about material risks to be withheld or generalized if physicians believe their patients are “unable to cope” with receiving such information. It is argued that the Supreme Court’s terse and vaguely-articulated exception to truth …

Spousal Support In Quebec: Resisting The Spousal Support Advisory Guidelines, Jodi Lazare

Articles, Book Chapters, & Popular Press

Since 2005, the Spousal Support Advisory Guidelines have become an essential part of the practice of family law throughout Canada. Aimed at structuring discretionary spousal support determinations under the Divorce Act and increasing the fairness of awards, the Advisory Guidelines have been embraced by appellate courts across jurisdictions. Quebec is the exception to that trend. Despite that marriage and divorce fall under federal jurisdiction, Quebec courts resist the application of these non-binding rules, written by two family law scholars. This article responds to Quebec's resistance to the Advisory Guidelines and suggests that concerns about them may be misplaced. By reviewing …

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Courts In Federal Countries: Federalists Or Unitarists?, Hannah Steeves

Articles, Book Chapters, & Popular Press

This book is the product of a comparative research project completed by the Forum of Federations and supported by the Government of Quebec. The Forum of Federations has the goal of linking academic research to real world practices and is supported and funded by international partners. Courts in Federal Countries: Federalists or Unitarists? contributes directly to this goal by providing a well-rounded, highly informed, comparative approach to the topic of the structural issues of federalism. This text is the first of a larger, forthcoming, seven volume series on federalism to be developed by the Forum of Federations.

More Than 'Revenge Porn' Civil Remedies For The Nonconsensual Distribution Of Intimate Images, Suzie Dunn, Alessia Petricone-Westwood

Articles, Book Chapters, & Popular Press

The non-consensual distribution of intimate images, or “revenge porn” as it is colloquially known, is a growing phenomenon in the digital era that has devastated the lives of countless individuals. Targets of this conduct have suffered both short and long-lasting harms that have had serious repercussions on their mental health, physical well-being, and safety. Once their intimate images have been shared without their consent, they can face damage to their personal and professional reputations. There are reported cases where individuals have lost their jobs, have had to relocate, were stalked and harassed, experienced some form of emotional trauma, and had …

A Reflection On The Ethics Of Movement Lawyering, Susan Carle, Scott L. Cummings

Scholarly Articles in Law Reviews & Journals

This essay takes a new look at legal ethics issues salient to "movement lawyers" who maintain a sustained commitment to social movement goals and collaborate with social movement organizations over time to achieve them. The essay provides a historical overview of movement lawyering, tracing its development to current practice in which movement lawyers work in collaboration with mobilized social movement groups, though not always in traditional lawyer-client relationships. As this analysis reveals, contemporary movements employ a sophisticated array of strategies, which may pull lawyers away from traditional representation paradigms. We argue that the legal ethics literature on movement lawyering must …

What Kind Of Judge Is Brett Kavanaugh?, Elliott Ash, Daniel L. Chen

Cardozo Law Review de•novo

This article reports the results of a series of data analyses of how recent Supreme Court nominee Brett Kavanaugh compares to other potential Supreme Court nominees and current Supreme Court Justices in his judging style. The analyses reveal a number of ways in which Judge Kavanaugh differs systematically from his colleagues. First, Kavanaugh dissents and is dissented against along partisan lines. More than other Judges and Justices, Kavanaugh dissents at a higher rate during the lead-up to elections, suggesting that he feels personally invested in national politics. Far more often than his colleagues, he justifies his decisions with conservative doctrines, …

Weighing Democracy And Judicial Legitimacy In Judicial Selection, Kenneth S. Klein

Faculty Scholarship

For over two centuries Americans have debated whether judges should be elected or appointed. While the explicitly-framed tension has been about the relative importance of judicial independence and judicial accountability in a democracy, the underlying issue has been about which structure better promotes the legitimacy of the judiciary. An institution has legitimacy when it enjoys diffuse support even for controversial decisions. Judicial legitimacy is in inherent tension with a judiciary in a democracy, since democracy implicitly assumes political elements to selection of all leaders (including judges), while judicial legitimacy is undermined by politics. The contemporary work on the relationship between …

Court Capture, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …

Crowdsourcing & Data Analytics: The New Settlement Tools, Bernard Chao, Christopher Robertson, David Yokum

Faculty Scholarship

By protecting the right to a jury, the State and Federal Constitutions recognize the fundamental value of having civil and criminal disputes resolved by laypersons. However actual trials are relatively rare, in part because parties seek to avoid the risks and cost of trials, and courts seek to clear dockets efficiently. Even as settlement may be desirable, it is sometimes difficult to resolve a dispute. Parties naturally view their cases from different perspectives, and these perspectives often cause both sides to be overly optimistic, seeking unreasonably large or unreasonably small resolutions.
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Chevron Patterns In The Circuit Courts, Christina L. Boyd, Kent Barnett, Christopher J. Walker

Scholarship@WashULaw

Chevron U.S.A., Inc. v. NRDC required courts to defer to federal agencies reasonable interpretation of ambiguous statutes that are administered through the agency. However, recently this “Chevron deference” has been called into question by the judiciary, the legal academy, and Congress. In this essay we briefly describe and highlight three of the most noteworthy findings from our empirical study of over 1,300 decisions of agency statutory interpretation (based on articles published in Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017) (Barnett and Walker); Chevron Step Two’s Domain, 93 Notre Dame L. Rev. 1441 (2018) (Barnett and Walker); …

Benefits And Costs Of Civil Justice Reform, Paula Hannaford-Agor

Faculty Publications

For more than a century, excessive costs and delays have been a chronic complaint about the American civil justice system. Although some states took steps to improve civil case processing in the past, most of those efforts had only a negligible effect, if any, and few were able to sustain those effects over time. Recently, however, a number of states have implemented civil justice reforms that couple changes in pro­cedural rules with improved civil case automation and staffing models that offer new hope for significant improvements in civil case processing. This paper focuses on four reforms implemented in the Eleventh …

Family Justice Initiative: The Landscape Of Domestic Relations Cases In State Courts, Paula Hannaford-Agor, Lydia Hamblin, Brittney Via, Natalie Anne Knowlton

Faculty Publications

The Family Justice Initiative (FJI) Landscape study represents the first large, aggregate examination of how family court cases are litigated in the state courts. Much of the findings confirmed conventional wisdom about family court litigation, though several offered new insights into the typical domestic relations case. The study findings also raise questions both of how domestic relations cases should be managed and whether the judicial branch is still the most appropriate forum for such cases.

This report documents the caseload characteristics of domestic relations cases disposed between July 1, 2016, and June 30, 2017, across eleven large, urban courts. Three …

Changing Times, Changing Relationships For The Bench And Civil Bar, Paula Hannaford-Agor

Faculty Publications

For the past century, the interests of the bench and bar in delivering justice to civil litigants were closely aligned. As civil litigants’ needs change, courts recognize they must lead the way on civil justice reforms both for their own sake and to encourage productive change in civil legal practice.

Dethroning The Hierarchy Of Authority, Amy J. Griffin

Publications

The use of authority in legal argument is constantly evolving—both the types of information deemed authoritative and their degree of authoritativeness—and that evolution has accelerated in recent years with dramatic changes in access to legal information. In contrast, the uncontroversial and ubiquitous “hierarchy of authority” used as the cornerstone for all legal analysis has remained entirely fixed. This article argues that the use of the traditional hierarchy as the dominant model for legal authority is deeply flawed, impeding a deeper understanding of the use of authority in legal argument. Lawyers, judges, and academics all know this, and yet no scholarly …

The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley

Publications

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, …

Celebrating Mundane Conflict, Deborah J. Cantrell

Publications

This Article interrogates the dominant conception of conflict and challenges the narrative of conflict as hard, difficult and painful to engage. The Article reveals two primary framing errors that cause one to misperceive how ubiquitous and ordinary is conflict. The first error is to misperceive conflict as categorical — something either is a conflict or it is not. People make that error as a way of trying to avoid conflict. People falsely hope that there might be a category of “not conflict,” like disagreements, that will be easier to navigate. The second error is to misperceive the world and individuals …

The Jury Sunshine Project: Jury Selection Data As A Political Issue, Ronald F. Wright, Kami Chavis, Gregory S. Parks

Faculty Publications

In this Article, the authors look at jury selection from the viewpoint of citizens and voters, standing outside the limited boundaries of constitutional challenges. They argue that the composition of juries in criminal cases deserves political debate outside the courtroom. Voters should use the jury selection habits of judges and prosecutors to assess the overall health of local criminal justice: local conditions are unhealthy when the full-time courtroom professionals build juries that exclude parts of the local community, particularly when they exclude members of traditionally marginalized groups such as racial minorities. Every sector of society should participate in the administration …

Appeals Court Denies Sperm Donor Paternity Test, Arthur S. Leonard

Other Publications

No abstract provided.