Courts Commons^™

E-Discovery 2.0, Lumen N. Mulligan, Joyce Isaacs

Faculty Works

No abstract provided.

Treating Juveniles Like Juveniles: Getting Rid Of Transfer And Expanded Adult Court Jurisdiction, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off. This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished. It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law …

Why Whistleblowers Lose: An Empirical And Qualitative Analysis Of State Court Cases, Nancy M. Modesitt

All Faculty Scholarship

This Article was originally intended to be an analysis of the propriety, or impropriety, of the doctrines most commonly used by courts to decide employees’ whistleblowing retaliation claims against employers. However, upon conducting initial research, it quickly became apparent that there was very little data available on whistleblowing cases. Unlike employment discrimination cases, where several empirical studies have been conducted, there is only one empirical analysis of whistleblower claims, which focused solely on outcomes in the federal administrative process for claims brought under the Sarbanes-Oxley Act (SOX). That study revealed that whistleblowers fare poorly for a number of reasons, but …

A Comment On "No Comment": The Sub Judice Rule And The Accountability Of Public Officials Inthe 21st Century, Lorne Sossin, Valerie Crystal

Dalhousie Law Journal

The sub judice rule is a rule of court, a statutory rule, a Parliamentary convention and a practice that has developed in the interaction between media and public officials. At its most basic, the sub judice rule prohibits the publication of statements which may prejudice court proceedings. This study examines the nature, rationale and scope ofthe sub judice rule. The authors provide an account of the current state of the rule, and highlight areas where more clarity would be desirable. The authors propose a more coherent approach to the sub jud ice rule, more clearly rooted in the concern over …

Diversity, Deliberations, And Judicial Opinion Writing., Susan B. Haire, Laura P. Moyer, Shawn Treier

Faculty and Staff Scholarship

Underlying scholarly interest in diversity is the premise that a representative body contributes to robust decision-making processes. Using an innovative measure of opinion content, we examine this premise by analyzing deliberative outputs in the US courts of appeals (1997-2002). While the presence of a single female or minority did not affect the attention to issues in the majority opinion, panels composed of a majority of women or minorities produced opinions with significantly more points of law compared to panels with three Caucasian males.

In Defense Of Implied Injunction Relief In Constitutional Cases, John F. Preis

William & Mary Bill of Rights Journal

If Congress has neither authorized nor prohibited a suit to enforce the Constitution, may the federal courts create one nonetheless? At present, the answer mostly turns on the form of relief sought: if the plaintiff seeks damages, the Supreme Court will normally refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the Court will refuse relief only if Congress has specifically barred it. These contradictory approaches naturally invite arguments for reform. Two common arguments—one based on the historical relationship between law and equity and the other based on separation of powers principles—could quite …

Brief Of Eugene Volokh, Richard W. Garnett, Michael Stokes Paulsen, Timothy Zick, William E. Lee, Alan K. Chen, & Ronald J. Krotoszynski, Jr. As Amici Curiae In Support Of Petitioners, Kevin C. Walsh, Matthew A. Fitzgerald, Andriana S. Daly, Richard W. Garnett

Court Briefs

No. 12-1168
Eleanor McCullen v. Martha Coakley

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

Even many steadfast supporters of abortion rights believed that the Court erroneously applied the First Amendment in Hill v. Colorado, 530 U.S. 703 (2000). As put bluntly by leading liberal scholar Professor Laurence Tribe, Hill was among the candidates for “most blatantly erroneous” decisions of the 1999 Term. Tribe added that the case was “slam-dunk simple” yet the Court got it “slam-dunk wrong.”

Specifically, pro-choice and pro-life scholars alike agreed that the …

Amicus Briefs Of The National Association Of Consumer Advocates In Day V. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), Brian Wolfman

U.S. Supreme Court Briefs

These amicus briefs are likely to interest legal academics and practitioners who write, research, and practice in the areas of (1) federal courts, (2) class actions, (3) separation of powers, (4) constitutional law more generally, and (4) federal litigation.

In Day v. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), an absent class member objected to a class-action settlement. The objector argued that the settlement was unfair because, among other reasons, it provided no monetary recovery to the class members. In the district court, prior to class certification and settlement, the defendants and the named plaintiff had consented …

Unlocking Family Court's Potential For Public Health Promotion, Catherine Cerulli, Ann Marie White, Nancy Chin, Neil Mclaughlin

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

Retroactivity And Crack Sentencing Reform, Harold J. Krent

University of Michigan Journal of Law Reform

This Article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision, Dorsey v. United States, is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may mislead legislatures in future contexts, whether addressing marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only. Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court relied excessively on the general …

The Right To Appeal Against A Decision Made On An Interlocutory Application: The Immediate Aftermath Of The 2010 Amendments, Eunice Chua, Siyuan Chen

Research Collection Yong Pung How School Of Law

One of the main reasons for amending the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) in 2010 was to introduce a calibrated approach towards interlocutory appeals to the Court of Appeal. The amended s 34 and the newly introduced Fourth and Fifth Scheds were interpreted for the first time in two recent Court of Appeal decisions, providing much needed guidance on the general approach towards statutory interpretation, as well as specific direction in terms of interpreting the term “order” in para (i) of the Fourth Sched and para (e) of the Fifth Sched, and the term “interlocutory …

Reflections On The End Of The Federal Law Clerk Hiring Plan, Aaron L. Nielson

Michigan Law Review First Impressions

As applicants, federal judges, and law school career counselors everywhere frantically come to terms with the new clerkship landscape, one truth is inescapable: the Federal Law Clerk Hiring Plan ("the Plan") is dead. On January 29, 2013, the D.C. Circuit-the Plan's last and best defender-announced that it would no longer follow the Plan. The consequences of that announcement have been swift. For the last several months, months earlier than almost anyone expected, untold numbers of federal judges across the country have been rushing to hire law clerks. For these judges, the unregulated clerkship market of the pre-Plan era is back. …

What Would Congress Want? If We Want To Know, Why Not Ask?, Danieli Evans

Articles

Judges often disagree about which interpretation of a statute is most faithful to 'legislative intent.' If judges are concerned about adhering to democratic preferences when interpreting statutes, why not ask Congress what it would prefer? I propose a procedure that would enable the Court, in a case where Justices are divided over the meaning of a statute, to submit both sides' reasoning to Congress, and Congress may choose to vote on its preferred of the alternative rulings the Court puts before it. Congress's preferences would be evidentiary only; they would not bind the Court to make one decision or another. …

New Hampshire: Impact Of The Proportional Discovery/Automatic Disclosure (Pad) Pilot Rules, Paula Hannaford-Agor, Nicole L. Waters, Cynthia G. Lee, Susan Keilitz

Faculty Publications

Across the nation, a growing chorus of judges, lawyers, business leaders, and consumer advocates is calling for reforms to the American civil justice system. Civil litigation, they argue, has become too time-consuming, too expensive, and too unpredictable. To address these concerns, many state and federal courts have begun to develop and implement civil justice reform efforts intended to streamline the litigation process, to minimize the potential for discovery disputes, and to expedite the fair resolution of civil cases. New Hampshire was one of the first jurisdictions to revise its rules of civil procedure with these objectives in mind. The project …

Pleading And Access To Civil Justice: A Response To Twiqbal Apologists, A. Benjamin Spencer

Faculty Publications

Professor Stephen Yeazell once wrote, ''A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions."" One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questioned whether this purported threat is more perceived than real. Indeed, this doctrinal shift has been defended in several ways …

When Courts Determine Fees In A System With A Loser Pays Norm: Fee Award Denials To Winning Plaintiffs And Defendants, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in practice, an empirical study of judicial litigation cost award practices should be of general interest. This Article presents such a study in the context of Israel’s legal system. We report evidence that Israeli judges apply their discretion …

Banished For Life: Deportation Of Juvenile Offenders As Cruel And Unusual Punishment, Beth Caldwell

Cardozo Law Review

No abstract provided.

Justice Florence Kerins Murray: The Legacy Of A Pioneer In The Rhode Island Courts, Marian M. Desrosiers Ph.D.

Journal of Interdisciplinary Feminist Thought

This essay discusses the professional and personal life of Florence Kerins Murray (1916-2004), a senator and judge, whose career had a profound effect onRhode Islandgovernment, public service, and the judiciary. The author uses twenty oral history interviews conducted by the author from 2007-12 with men and women working in the courts, in state and local governments, in public service organizations, and in the media. The research was funded by a scholar grant from the Rhode Island Council on the Humanities.

Hess V. Chief Of General Staff, Edna Arbel, Hanan Melcer, Yoram Danziger

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

A petition to direct the introduction of a military order prohibiting the use of white phosphorus for any purpose in settled areas and other civilian sites, as well as any use of arms containing white phosphorus in any situation in which there is an alternative weapon that is less dangerous to humans and that is capable of achieving an equal or similar military advantage. …

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role …