Courts Commons^™

The Minnesota Stand Down Model: Bringing Stand Down Courts To Rural Communities, Sara Sommarstrom

Mitchell Hamline Law Review

No abstract provided.

Finance In The Courtroom: Appraising Its Growing Pains, Eric L. Talley

Faculty Scholarship

This short essay provides an overview of the current state of finance in corporate law, emphasizing its role in a series of pending appraisal cases at the Delaware Supreme Court.

The Use And Abuse Of Mutual Support Programs In Drug Courts, Sara Gordon

All Faculty Publications

There is a large gap between what we know about the disease of addiction and its appropriate treatment, and the treatment received by individuals who are ordered into treatment as a condition of participation in drug court. Most medical professionals are not appropriately trained about addiction and most addiction treatment providers do not have the education and training necessary to provide appropriate evidence-based services to individuals who are referred by drug courts for addiction treatment. This disconnect between our understanding of addiction and available addiction treatment has widereaching impact for individuals who attempt to receive medical care for addiction in …

"No Ordinary Lawsuit": Climate Change, Due Process, And The Public Trust Doctrine, Michael Blumm, Mary Christina Wood

American University Law Review

On November 10, 2016, just two days after the election of President Donald Trump, the federal district court in Oregon handed down Juliana v. United States. This remarkable decision refused to dismiss a lawsuit brought by youth plaintiffs who claimed that the federal government's fossil fuel policies over the years, which have produced an atmosphere with dangerous levels of greenhouse gases (GHGs), violated the federal public trust doctrine (PTD) and their federal constitutional rights to due process and equal protection. The court found a constitutional right to a stable climate system, determining that the PTD was an implicit part of …

Second-Tier Certiorari: Adverse Precedential Effect As A Predicate For Finding A “Miscarriage Of Justice” In Government Appeals, John A. Greco

FIU Law Review

No abstract provided.

Without Explanation: Judicial Restraint, Per Curiam Affirmances, And The Written Opinion Rule, Craig E. Leen

FIU Law Review

No abstract provided.

A Cure For “Acute Motion Sickness”: A Practitioner’S Guide To Motion Practice In Florida’S Appellate Courts, Kimberly Kanoff Berman

FIU Law Review

No abstract provided.

Federal Review Of State Criminal Convictions: A Structural Approach To Adequacy Doctrine, Eve Brensike Primus

Michigan Law Review

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore …

How Much Has The Supreme Court Changed Patent Law?, Paul Gugliuzza

Faculty Scholarship

The U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Adjudicative Limits Of Originalism, Gary S. Lawson

Faculty Scholarship

If you conduct an online search for something like “Justice Scalia’s most important opinions” or “Justice Scalia’s most influential opinions,” you will (or at least I did) almost always end up with a list that is top-heavy with dissents. That is not surprising. Dissenting opinions gave Justice Antonin Scalia the most freedom to exercise his considerable skills as a writer and were therefore more likely to produce memorable one-liners. They were also the best occasions for him to express his views can­didly and forcefully and thus served as the best vehicles for elaboration of his jurisprudential and doctrinal positions. Majority …

Exploring The Intersections Between International And Domestic Justice Efforts, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Trial And Error: Lawyers And Nonlawyer Advocates, Anna Carpenter, Alyx Mark, Colleen Shanahan

Faculty Articles

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …

Active Judging And Access To Justice, Anna Carpenter

Faculty Articles

"Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Protean Statutory Interpretation In The Courts Of Appeals, James J. Brudney, Lawrence Baum

Faculty Scholarship

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia.

We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative …

Human Rights In State Courts, India Thusi

Books & Book Chapters by Maurer Faculty

Human rights are among society’s most powerful ideals. The notion that all people have rights, simply by virtue of their humanity, has sparked new nations, inspired countless freedom movements, and transformed the relationship between people and their governments in places big and small around the globe. The founders of our country declared that we are all created equal and endowed with certain inalienable rights, and that opinions of other nations are entitled to “decent respect.” In the aftermath of the Holocaust and World War II, the United States helped craft the Universal Declaration of Human Rights (UDHR) and the modern …

Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an …

Doing Gloss, Curtis A. Bradley

Faculty Scholarship

It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Pennoyer Was Right, Stephen E. Sachs

Faculty Scholarship

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn't a matter of federal law, but of general law -- that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if …

Opposing International Justice: Kenya’S Integrated Backlash Strategy Against The Icc, Laurence R. Helfer, Anne E. Showalter

Faculty Scholarship

The government of Kenya has employed a wide range of strategies to undermine the recently-dismissed prosecutions of President Uhuru Kenyatta and Deputy President William Ruto before the International Criminal Court (ICC). This Article argues that these strategies are part of an integrated backlash campaign against the ICC, one that encompasses seemingly unrelated actions in multiple global, regional and national venues. We identify three overarching themes that connect these diverse measures— politicizing complementarity, regionalizing political opposition, and pairing instances of cooperation and condemnation to diffuse accusations of impunity. By linking its discrete acts of opposition to these three themes, the government …