Courts Commons^™

Fletcherian Standing, Merits, And Spokeo V. Robins, Howard Wasserman

Faculty Publications

This essay offers an exercise in wishful jurisdictional and procedural thinking. As part of a Supreme Court Roundtable on Spokeo, Inc. v. Robins, it argues for William Fletcher's conception of standing as an inquiry into the substantive merits of a claim and of whether the plaintiff has a valid cause of action. This approach is especially necessary in statutory cases; along with its constitutional power to create new rights, duties, and remedies, Congress should have a free hand in deciding who and how those rights and duties should be enforced. Spokeo, which involves a claim for damages for publication of …

The Law And Politics Of The Charles Taylor Case, Charles Chernor Jalloh

Faculty Publications

This article discusses a rare successful prosecution of a head of state by a modern international criminal court. The case involved former Liberian president Charles Taylor. Taylor, who was charged and tried by the United Nations-backed Special Court for Sierra Leone (“SCSL”), was convicted in April 2013 for planning and aiding and abetting war crimes, crimes against humanity, and other serious international humanitarian law violations. He was sentenced to 50 years imprisonment. The SCSL Appeals Chamber upheld the historic conviction and sentence in September 2013. Taylor is currently serving his sentence in Great Britain. This article, from an insider who …

A Conversation With Ruth Bader Ginsburg, Associate Justice Of The Supreme Court Of The United States, University Of Michigan Law School

Event Materials

Program for the 2015 Tanner Lecture on Human Values on February 6, 2015, sponsored by the University of Michigan Law School and the University of Michigan LSA Department of Philosophy.

Children's Rights In The Midst Of Marriage Equality: Amicus Brief In Obergefell V. Hodges By Scholars Of The Constitutional Rights Of Children, Tanya Washington, Susannah Pollvogt, Catherine Smith, Lauren Fontana

Scholarly Articles

Many scholars have called for the acknowledgement and treatment of children's rights as constitutionally protected and enforceable, and Supreme Court precedent establishes that the government may not punish children for matters beyond children's control. Same-sex marriage bans and non-recognition laws, which are collectively referred to as marriage bans, impose prohibited punishment on children for being born into, or parented by, same-sex families. States argue that marriage is the optimal familial environment for children, yet marriage bans categorically exclude an entire class of children -- children in same-sex families -- from the legal, economic, and social benefits of marriage. In response …

Alternate Judges As Sine Qua Nons For International Criminal Trials, Megan A. Fairlie

Faculty Publications

When one of the three judges hearing the case against Vojislav Šešelj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge — who has not spent a single day participating in the proceedings — has familiarized himself with the trial record. This article demonstrates why the plan to proceed with a new judge is both procedurally illegitimate and markedly at odds with the ICTY’s statutory guarantee of a …

Of Banks, Federalism And Clear Statements: Comment On Bank Of Montreal V. Marcotte, Wade Wright

Law Publications

Federalism-based clear statement rules require governments to use clear statutory language when they pursue initiatives with certain implications for the division of powers. This article makes the case for altering the analytical approach in relation to two of the key federalism doctrines (the doctrine of interjurisdictional immunity and the doctrine of federal paramountcy) by adopting a federalism-based clear statement rule. It makes this case in the context of a discussion of the Supreme Court of Canada’s decision in Bank of Montreal v. Marcotte (2014), an important federalism case that rejected the arguments of several banks invoking both doctrines to avoid …

Excusing Murder? Conservative Jurors’ Acceptance Of The Gay Panic Defense, Cynthia J. Najdowski, Jessica Salerno, Bette L. Bottoms, B. L. Harrington, Dave Kemner

Psychology Faculty Scholarship

We conducted a simulated trial study to investigate the effectiveness of a “gay-panic” provocation defense as a function of jurors’ political orientation. Mock jurors read about a murder case in which a male defendant claimed a victim provoked the killing by starting a fight, which either included or did not include the male victim making an unwanted sexual advance that triggered a state of panic in the defendant. Conservative jurors were significantly less punitive when the defendant claimed to have acted out of gay panic as compared to when this element was not part of the defense. In contrast, liberal …

The Legitimacy Crisis And The Future Of Courts, Orna Rabinovich-Einy

Cardozo Journal of Conflict Resolution

There is an overall legitimacy crisis in courts. The sources of this crisis have, to a large extent, been misconstrued. While there has been significant writing depicting the diminished quality, effectiveness, and fairness of courts, these phenomena have, for the most part, been viewed as distinct problems that warrant discrete solutions. This article shows that these problems are all manifestations of an overall legitimacy crisis that stems from the blurring of the originally stark distinctions between courts and alternatives. Traditionally, formal and informal dispute resolution processes had their own sources of legitimacy, each grounded in their respective distinctive (often opposing) …

2014 Trademark Law Decisions Of The Federal Circuit, Jonathan M. Gelchinsky

American University Law Review

No abstract provided.

Griswold And Its Surroundings: The 1963, '64, And '65 Terms, L.A. Powe

American University Law Review

No abstract provided.

Between Idealism And Realism: A Few Comparative Reflections And Proposals On The Appointment Process Of The Inter-American Commission And Court Of Human Rights Members, Laurence Burgorgue-Larsen

Notre Dame Journal of International & Comparative Law

In this Article, Professor Laurence Burgorgue-Larsen, a renowned scholar in European and Latin-American law, explores flaws in the process by which members are appointed to the Inter-American Commission and Court of human rights, respectively. Seeking to strike a balance between "Idealism" and "Realism," Burgorgue-Larsen seeks methods for improving the independence and impartiality of the Commissioners and Judges in the Inter-American system in the hopes of ultimately lending greater credibility and legitimacy to the system as a whole. Drawing comparisons to the appointment of judges on national and international courts worldwide, Burgorgue-Larsen ultimately produces specific suggestions for improving the appointment process, …

Death Penalty, Amnesty Laws, And Forced Disappearances: Three Main Topics Of The Inter-American Corpus Juris In Criminal Law, Eduardo Ferrer Mac-Gregor, Pablo GonzáLez DomíNguez

Notre Dame Journal of International & Comparative Law

In this Article, Judge Eduardo Ferrer Mac-Gregor of the Inter-American Court of Human Rights and International Human Rights Researcher Pablo González Domínguez explore three of the richest and most contentious areas of the jurisprudence of the Inter-American Court of Human Rights: death penalty cases, amnesty law, and cased regarding forced disappearance. These topics encompass some of the most pressing human rights issues in the Inter-American System. For each topic, Ferrer Mac-Gregor and González Domínguez provide a succinct but comprehensive view of the Inter-American Court's jurisprudence, discuss the ways in which the core principles of this jurisprudence have been applied in …

National Insecurity: The National Defense Authorization Act, The Indefinite Detention Of American Citizens, And A Call For Heightened Judicial Scrutiny, 49 J. Marshall L. Rev. 69 (2015), Harvey Gee

UIC Law Review

This essay outlines the problems posed by the National Defense Authorization Act of 2012 (“NDAA”) and interprets the Act’s language to answer the question of: whether American citizens can be indefinitely detained under the NDAA?

Deboer V. Snyder: A Case Study In Litigation And Social Reform, Wyatt Fore

Michigan Journal of Gender & Law

On April 28, 2015, the Supreme Court will hear oral arguments for four cases from the Sixth Circuit addressing the constitutionality of state bans on same-sex marriage. This Note examines DeBoer v. Snyder, the Michigan marriage case, with the goal of providing litigators and scholars the proper context for our current historical moment in which (1) the legal status of LGBT people; and (2) the conventional wisdom about the role of impact litigation in social reform movements are rapidly evolving.

Sexual Assault And Rape In The Military: The Invisible Victims Of International Gender Crimes At The Front Lines, Stella Cernak

Michigan Journal of Gender & Law

In the past several years in particular, intra-military sexual assault and rape in the U.S. armed forces have been the focus of frequent media attention and intense congressional debate. Despite reforms, the rate of intra-military sexual crimes continues to remain high, as does soldiers’ wariness to report instances of sexual violence to military commanders. These problems and others have invigorated the position taken by some that outside judicial review of intra- military sexual crimes is necessary to provide justice to victims and lower the rate of intra-military sexual assault and rape. This Note argues that one of the primary contributors …

The Local Rules Of Patent Procedure, Megan M. La Belle

Scholarly Articles

Congress, the Executive, and the Judiciary have all had “patent litigation abuse” on their minds recently. The concern is that too many frivolous patent suits are being filed and used to extract unwarranted settlements. The story is that bad actors—patent assertion entities (PAEs) or, more pejoratively, “patent trolls”—are suing small companies and end users for patent infringement even though PAEs make no patented products themselves. Over the past two years, Congress proposed nearly a dozen bills aimed at curbing patent litigation abuse, the Executive took various anti-troll measures, and the Supreme Court decided a pair of cases that make it …

Making Turner A Reality - - Improving Access To Justice Through Court-Annexed Resource Centers And Same Day Presentation, Stacy Brustin

Scholarly Articles

This article will propose recommendations for implementing meaningful "alternative procedural safeguards." It will highlight a program that uses an innovative model of pro se assistance and limited representation, and will discuss the limitations that even the most innovative programs face in trying to offer adequate alternatives to full representation. The article will also analyze the ethical obstacles that court-based assistance programs face, and offer strategies that attorneys can use to meet their ethical duties regarding confidentiality, competence, avoidance of conflicts of interest, and independence of professional judgment.

While the procedural safeguards that the Court suggests in Turner might, in theory, …

Changing The Rules Of The (International) Game: How International Law Is Turning National Courts Into International Political Actors, Osnat Grady Schwartz

Washington International Law Journal

Courts are known to be political actors. National courts play the political game in the national domain. International courts play it in the international sphere. This article studies the transformation of national courts into international political actors (IPAs), and the part international law plays in so making them. The article identifies, categorizes, and demonstrates the influence of national courts and judges on international relations (IR), separating the influence into two main categories: direct and indirect. Direct influence, is the effect of a national court taking a position on international issues in concrete situations with immediate IR implications. Indirect influence is …

The Surprising Acquittals In The Gotovina And Perišić Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep’S Clothing?, Mark A. Summers

Richmond Journal of Global Law & Business

No abstract provided.

The Rise And Fall Of Bad Judge: Lady Justice Is No Tramp, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.