Courts Commons^™

The Dimensions Of Judicial Impartiality, Charles G. Geyh

Articles by Maurer Faculty

Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when "we are all legal realists now," perfect impartiality-the complete absence of bias or prejudice-is at most an ideal; "impartial enough" has, of necessity, become the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: a procedural dimension, in which impartiality affords parties a fair hearing; a political dimension, in which …

The Stricter Standard: An Empirical Assessment Of Daubert’S Effect On Civil Defendants, Andrew Jurs, Scott Devito

Catholic University Law Review

No abstract provided.

Giving Consumers A Leg To Stand On: Finding Plaintiffs A Legislative Solution To The Barrier From Federal Courts In Data Security Breach Suits, Patricia Cave

Catholic University Law Review

No abstract provided.

The Jurisdiction Of The Court Of Federal Claims And Forum Shopping In Money Claims Against The Federal Government, Gregory C. Sisk

Indiana Law Journal

No abstract provided.

The Judicial Reform In China: The Status Quo And Future Directions, Ji Weidong

Indiana Journal of Global Legal Studies

This article shows that Chinese adjudication is in a dilemma: on one hand, the judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …

What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

The Jurisdiction Of The D.C. Circuit, Matthew B. Lawrence, Eric M. Fraser, David Kessler, Stephen A. Calhoun

Faculty Articles

The U.S. Court of Appeals for the D.C. Circuit is unique among federal courts, well known for an unusual caseload that is disproportionally weighted toward administrative law. What explains that unusual caseload? This Article explores that question. We identify several factors that “push” some types of cases away from the Circuit and several factors that “pull” other cases to it. We give particular focus to the jurisdictional provisions of federal statutes, which reveal congressional intent about the types of actions over which the D.C. Circuit should have special jurisdiction. Through a comprehensive examination of the U.S. Code, we identify several …

Jewish Law Courts In America: Lessons Offered To Sharia Courts By The Beth Din Of America Precedent, Michael J. Broyde

Faculty Articles

Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. In the fifteen years since, an independent board of directors has worked with the BDA’s rabbinic leaders to craft an arbitration process that secular courts would feel comfortable upholding. While the BDA’s transformation required some level of compromise within Jewish law itself, the adaptations necessary for judicial acceptance proved to be procedural. Broadly, this meant conforming to the tenets of the Federal Arbitration Act (FAA). More specifically, the BDA’s viability came …

Standing's Expected Value, Jonathan R. Nash

Faculty Articles

This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive ex­pected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing juris­prudence by …

Crashing The Misdemeanor System, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis. Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court. This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” …

Law And Discretion In The Supreme Court: A Response To Professor Lubet, Barry Sullivan

Faculty Publications & Other Works

No abstract provided.

Mission Creep Or A Search For Relevance: The East African Court Of Justice’S Human Rights Strategy, James T. Gathii

Faculty Publications & Other Works

No abstract provided.

The International Criminal Court Ten Years Later: Appraisal And Prospects, Joseph M. Isanga

Cardozo Journal of International and Comparative Law

The International Criminal Court (ICC) faces significant challenges in achieving its objectives of deterrence, retribution, and ending impunity, primarily due to slow procedures, lack of state cooperation, and perceptions of bias. While the ICC has made qualitative contributions to international criminal law, its effectiveness is undermined by procedural inefficiencies, political interference, and limited enforcement mechanisms. The court's reliance on the complementarity principle and state cooperation highlights the tension between its judicial and political roles, with its future success contingent on addressing these systemic issues.

Contested States And The Rights And Obligations Of The Jus Ad Bellum, Christian Henderson

Cardozo Journal of International and Comparative Law

The article examines the rights and obligations of contested states under the jus ad bellum, arguing that these entities, despite lacking widespread recognition as states, should be considered international legal persons. It challenges the traditional state-only conception of international personality and advocates for a recognition-based approach, which would extend the prohibition of the use of force and the right to self-defense to contested states. The analysis highlights the complexities and contradictions in applying these principles, particularly regarding collective self-defense, and suggests that a pragmatic interpretation could balance international peace and security with the legal protection of contested states.

Born Lost: Stateless Children In International Surrogacy Arrangements, Tina Lin

Cardozo Journal of International and Comparative Law

The note examines the legal and humanitarian challenges posed by statelessness in children born through international surrogacy arrangements, particularly in countries like India and Ukraine, where lax regulations and conflicting nationality laws create legal limbo for surrogate children. It argues that the best interests of the child should guide legal reforms and judicial decisions to prevent statelessness and ensure citizenship rights. The analysis emphasizes the need for domestic and international legal frameworks to address the gaps in nationality acquisition and surrogacy regulation.

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

Scholarly Works

"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 …

Dubious Deference: Reassessing Appellate Standards Of Review In Immigration Appeals, Michael Kagan

Scholarly Works

The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. First, the most prominent justification for deference relies on the empirical assumption that first-instance adjudicators are best able to determine the truth because they can directly view witness demeanor. Decades of social science research has proven this assumption about the value of demeanor false. Second, in principle, the deference rule applies to all types of administrative adjudication, with no attention to the relative gravity of interests at stake in different types of cases or to the varying …

Does Living By The Sword Mean Dying By The Sword, Charles Chernor Jalloh

Articles

This article examines the right to self-representation in international criminal law, and the common challenges posed for judges effectuating that right in international criminal courts. Using a comparative law approach, the paper demonstrates how the interpretation of that right initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international law, the author contends that this right seems better in theory than in practice. Indeed, since no self-representing …