Courts Commons^™

Administrative Alternatives To Judicial Branch Congestion, John G. Farrell

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Substantial Evidence Review In Social Security Cases As An Issue Of Fact, Morton Denlow

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Self-Represented Litigants And The Access To Justice Revolution In The State Courts: Cross-Pollinating Perspectives Toward A Dialogue For Innovation In The Courts And The Administrative System, Richard Zorza

Journal of the National Association of Administrative Law Judiciary

In the last ten to fifteen years, state courts have responded to a tidal wave of self-represented litigants with a wide range of innovations that are fundamentally transforming the courts. These innovations impact the whole system and range from new ways of accepting cases into the system to innovative courtroom procedures and management practices, and from a more proactive process of managing the flow of cases to innovations that help make sure that the parties comply with the court's orders. Indeed, the Self-Represented Litigation Network, a national network of groups working for access to justice for the self-represented, has identified …

Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron

Pace International Law Review Online Companion

In the realm of American jurisprudence, little draws more excitement or controversy than investigating the role of federal judges in our constitutional order. Yet, at the same time, the scholarly literature has not settled upon a singular descriptive device to explain how federal judges actually carry out this role. In broad strokes, current academic commentary appears to be divided on the issue of whether fidelity to the law or fidelity to political ideology largely determines how judges decide cases. This division, however interesting it may be, should not be afforded the luxury of being examined on a level playing field. …

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Michigan Journal of Race and Law

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

Judicial Overstating, Dan Simon, Nicholas Scurich

Chicago-Kent Law Review

Ostensibly, we are all Legal Realists now. No longer do legal theorists maintain that judicial decision making fits the mechanical and formalist characterizations of yesteryear. Yet, the predominant style of American appellate court opinions seems to adhere to that improbable mode of adjudication: habitually, opinions provide excessively large sets of syllogistic reasons and portray the chosen decision as certain, singularly correct, and as determined inevitably by the legal materials. This article examines two possible explanations for this rhetorical style of Judicial Overstatement. First, we review the psychological research that suggests that judicial overstatement is a product of the cognitive processes …

Environmental Law At The Crossroads: Looking Back 25, Looking Forward 25, Richard J. Lazarus

Michigan Journal of Environmental & Administrative Law

Twenty-five years used to seem like an exceedingly long time. It certainly did when I was graduating from law school and not yet twentyfive. My perspective on time, however, has (naturally) since evolved, much as environmental law itself and the controversies surrounding it have, too, evolved. The contrast between environmental law twenty-five years ago and environmental law today is remarkable and makes clear that environmental law and lawmaking were changing in fundamental ways a generation ago, but those changes are revealed only now with the aid of hindsight. To be sure, the statutory texts of domestic environmental law are strikingly …

Making Method Visible: Improving The Quality Of Science-Based Regulation, Pasky Pascual, Wendy Wagner, Elizabeth Fisher

Michigan Journal of Environmental & Administrative Law

Scientific inferences are theories about how the world works that scientists formulate based on their observations. One of the most difficult issues at the intersection of law and science is to determine whether the weight of evidence supports one scientific inference versus other competing interpretations of the observations. In administrative law, this difficulty is exacerbated by the behavior of both the courts and regulatory agencies. Agencies seldom achieve the requisite visibility that explains the analytical methods they use to reach their scientific inferences. Courts—because they appreciate neither the variety of inferential methods nor their epistemic foundations—do not demand this level …

Through The Eyes Of Jurors: The Use Of Schemas In The Application Of 'Plain-Language' Jury Instructions, Sara Gordon

All Faculty Publications

“Through the Eyes of Jurors” is the first law journal article to consider all of the major cognitive psychology studies that examine how “schemas,” or the preexisting notions jurors have about the law, shape jurors’ use of jury instructions, even when those jurors are given “plain-language” instructions. This Article examines the social science research on schema theory in order to advance our understanding of how schemas continue to influence jurors’ use of jury instructions, even when those jurors are given “plain language” instructions. A significant body of legal literature has examined jurors’ use and understanding of jury instructions, and many …

Removal Reform: A Solution For Federal Question Jurisdiction, Forum Shopping, And Duplicative State-Federal Litigation, Martha A. Field

Indiana Law Journal

Federal court procedural, especially jurisdictional ones, need to be governed by clear, effective, and fair rules. Yet twentieth century doctrines and reforms, even when made in the name of pragmatism, have produced decidedly unpragmatic results: a vague and disputed doctrine of federal question jurisdiction that excludes from federal court many cases where federal law controls the outcome, rules that facilitate forum shopping by plaintiffs and make it impossible to predict in advance what law will apply to decide one’s case, and the stunning waste of a system in which the exact same issues are simultaneously litigated in state and federal …

Public Interest Litigation And The Transformation Of The Supreme Court Of India, Manoj Mate

Contributions to Books

Published as Chapter 10 in Consequential Courts: Judicial Roles in Global Perspective, Diana Kapiszewski, Gordon Silverstein & Robert A. Kagan, eds. (2013).

The Supreme Court of India today is arguably one of the most powerful constitutional courts in the world. The Court has taken on an active and central role in the governance of the Indian polity through its activity in public interest litigation cases, and in some cases, has virtually taken over functions that were once the domain of Parliament and the Executive. Within the past two decades, the Indian Court wrested control over judicial appointments from the Executive, …

Women Ruling The Bench: Steps To Achieving Gender Parity On State Courts, Cheyenne L. Horien

Political Science Theses and Capstones

Across the United States, each state practices one of several methods of selecting judges to their courts. Many of these processes have not changed for decades and some argue this results in minorities, both gender and racial, receiving fewer spots on the bench. I focus explicitly on the gender aspect of judicial selection: Why are there fewer women judges in some states than in others? Previous literature on this topic is mixed. I analyzed data gathered from the American Judicature Society and other sources. Among the five methods (appointment, combination, merit selection, non-partisan election, partisan election), because of the many …

The Oath: The Obama White House And The Supreme Court By Jeffrey Toobin (Book Review), John Paul Jones

Law Faculty Publications

For anyone with an interest in the politics of courts, Jeffrey Toobin’s The Oath is a good read. Laypersons might see it as a busman’s holiday for lawyers working in American appellate courts, but NAACA members surely appreciate more than most how unique a judicial institution is the Supreme Court of the United States. Thus, there is much to which those working backstage in other venues can relate, but much more offering them frissons of the unusual.

Tentative Oral Opinions: Improving Oral Argument Without Spending A Dime, Joshua Stein

The Journal of Appellate Practice and Process

No abstract provided.

Prosecuting Those Bearing Greatest Responsibility: The Lessons Of The Special Court For Sierra Leone, Charles C. Jalloh

Articles

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence "to prosecute those who bear the greatest responsibility" for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …

International Decisions: Territorial And Maritime Dispute (Nicaragua V. Colombia), Nienke Grossman

All Faculty Scholarship

No abstract provided.

Constitutional Change, Courts, And Social Movements, Douglas Nejaime

Michigan Law Review

In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin furnishes a positive account of constitutional change, advances a normative vision of the relationship between popular mobilizations and evolving constitutional principles, and develops an interpretive theory aimed at fulfilling the Constitution's promise. Rather than take an internal perspective that asks how courts alter constitutional doctrine, Balkin decenters adjudication and instead views the role of courts in constitutional change through the lens of social movements. In doing so, he convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and …

Reverse Advisory Opinions, Neal Devins, Saikrishna B. Prakash

Faculty Publications

No abstract provided.

The Irony Of A Faustian Bargain: A Reconsideration Of The Supreme Court's 1953 United States V. Reynolds Decision, David Rudenstine

Cardozo Law Review

No abstract provided.

What The Sentencing Commission Ought To Be Doing Reducing Mass Incarceration, Lynn Adelman

Michigan Journal of Race and Law

Beginning in the 1970s, the United States embarked on a shift in its penal policies, tripling the percentage of convicted felons sentenced to confinement and doubling the length of their sentences. This shift included a dramatic increase in the prosecution and incarceration of drug offenders. As a result of its move toward long prison sentences, the United States now incarcerates so many people that it has become an outlier; this is not just among developed democracies, but among all nations, including highly punitive states such as Russia and South Africa, and also in comparison to the United States' own long-standing …