Courts Commons^™

Climate Change In The Courts: A 2024 Retrospective, Maria Antonia Tigre, Margaret Barry

Sabin Center for Climate Change Law

Drawing from the jurisdictions covered in the Sabin Center's United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2024. The report identifies eight major thematic areas of climate litigation, namely (i) climate change in international and regional courts and tribunals, (ii) constitutional and human rights cases, (iii) GHG emissions in EIAs, (iv) factoring climate impacts and obligations into government decision-making, (v) non-compliance with climate commitments, (vi) climate displacement, (vii) greenwashing and climate-washing cases, and (viii) nuisance and other claims against major emitters.

Victim-Offender Relationships And Their Influence On Crime Brutality And Sentencing Outcomes In Capital Homicide Cases, Samantha Jane Trowbridge

Graduate Theses/Dissertations

This study examines capital murder cases in Missouri from 1976 to 2022 to explore how victim-offender relationships relate to both the brutality of homicides and sentencing outcomes. It addresses three main questions: What are the different types of victim-offender relationships in these cases, and how frequently does each type occur? How do these relationships influence sentencing outcomes, particularly the likelihood of receiving the death penalty versus life without parole? And which types of relationships are associated with the highest and lowest levels of brutality? The study uses official court records and applies a coding process to analyze relationship type, sentencing …

Chancery Court Rejects Argument That Corwin Is Inapplicable To Post-Signing Board, Robert S. Reder, Jonathan Rose

Vanderbilt Law School Faculty Publications

No abstract provided.

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Scholarship@WashULaw

Prepared for the Notre Dame Law Review’s Spring 2025 Federal Courts Symposium on the 100th Anniversary of the Judiciary Act of 1925.

The Judiciary Act of 1925, the subject of this Symposium, is known as “The Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous; perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in …

When Hard Cases Make Bad Law: A Theory Of How Case Facts Affect Judge-Made Law, Sepehr Shahshahani

Scholarship@WashULaw

“Hard cases make bad law” is one of the most famous aphorisms in Anglo-American law. Its insight is that when strict application of a generally sound law would impose a special hardship on someone, a court may be tempted to distort the law to avoid the hardship. Scholars have long debated the meaning and truth of the aphorism, but the debate has suffered from an imprecise conceptualization of what makes a case “hard.” This lack of precision limits our ability to disentangle and work through the important questions the aphorism raises about how the facts of a particular case affect …

Lessons Learned From The Trump Rule Of Law Stress Test: Beware Bad Faith Actors, Brian Z. Tamanaha

Scholarship@WashULaw

The second Trump Administration has engaged in a vast swath of actions that press against the outer boundaries of legality. These actions provide a unique opportunity to identify potential vulnerabilities and expose how the rule of law can be undermined. While I will elucidate well-known points along the way, my primary aim is to bring out aspects of the rule of law that usually go unnoticed or under the radar. After setting out basic aspects of the rule of law, I cover three topics: 1) adhering to the truth, 2) pretextual arguments, and 3) flooding the field with actions and …

Exploring The Dynamics And Outcomes Of Family Engagement In Child Welfare Services: A Structural Equation Modeling Approach, Jianchao Lai, Michelle Graef, Todd Franke

Center on Children, Families, and the Law: Faculty Publications

Background: Engaging families effectively in child welfare services remains a persistent challenge, shaped by complex interactions between agency practices and family circumstances. While existing research has explored this issue, it has predominantly relied on data from agency and caseworker perspectives, often overlooking the crucial viewpoint of the families. Objectives: This study investigates families’ subjective experiences and perceptions within the child welfare system, focusing on their satisfaction with child welfare workers and overall engagement. Methods: The study draws on data collected through an evaluation of the implementation of Alternative Response in a Midwestern state. Agency administrative data is integrated with additional …

The Purpose Of The Preliminary Injunction, Samuel Bray

Journal Articles

This Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a "hold in place" order, blocking actions by the parties that would undermine the efficacy of the court's remedial options. But the preliminary injunction is becoming a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits. This Article critiques this transformation, and it argues that the preliminary injunction should be recentered on the protection of the court's remedial options.

Litigating Climate Vulnerability: Climate Change Reparations In Global Jurisprudence And Empirical Results From The Notre Dame Climate Change Reparations Dataset, Diane A. Desierto, Anibal Perez-Linan, Faisal Yamil Meneses, Yuta Inada, Rachael Degaugh, Andrew Marciano

Journal Articles

From the article

The global surge in climate change litigation provokes inquiry into the nature, frequency, and scope of climate change reparations that international, regional, and national courts, as well as arbitral tribunals and other adjudicative bodies such as UN treaty body mechanisms, determine to be adequate, both on legal merits as well as intrinsic claims of justice, for the resolution of disputes brought by climate vulnerable persons, groups, and constituencies against States, multinational corporations, and other actors. Our findings from the Notre Dame Climate Change Reparations Dataset reveal a broad spectrum of pecuniary and non-pecuniary reparations being adjudicated in …

The Concept Of The Common Law, Samuel L. Bray

Journal Articles

From the article

The common law is, among other things, a mode of legal development. In this mode, judges develop the law yet simultaneously act as if they were only discovering law that already existed. This sketch of the common law introduces contemporary readers to a way of thinking and talking about law that was once instinctive for judges. The common law as a mode of development may seem alien at certain points, yet its influence on the legal systems of the United States has been enormous, and it is critical background for understanding the grant of “the judicial power” …

After Courts: Democratizing Statutory Law, Ryan D. Doerfler, Samuel Moyn

Michigan Law Review

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent enormous power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rulemaking and other processes) is, if anything, …

Most-Favored-Nation Drug Pricing—How Courts Could Shape Future Health Regulation, Nicholas Bagley, Craig Garthwaite, Benedic Ippolito

Other Publications

The Trump administration recently issued an Executive Order aimed at delivering most-favored- nation (MFN) drug pricing to the US. The order instructs drug manufacturers to reduce the prices of brand-name drugs to match the lowest price among selected high-income countries. If drug makers do not make significant progress toward this goal, the administration will pursue several strategies to lower prices. Most notably, the Executive Order directs the Secretary of Health and Human Services (HHS) to propose a rule to impose MFN pricing. In all likelihood, the administration will revisit prior efforts to enact MFN pricing through the Center for Medicare …

Statutory Liquidation, Daniel Deacon

Articles

When might practice by the political branches settle the meaning of legal text? That question has mostly been taken up in the constitutional setting, with one strand of scholarship taking inspiration from Madison's statement in Federalist No. 37, that "{a}ll new laws ... are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series ef particular discussions and aqjudications." The prospect that post-enactment practice might liquidate the meaning of statutory text has been comparatively underexamined. That's not surprising. Under modern textualism, post-enactment considerations would seem to have little place. And under Chevron …

The Sovereignty Problem In Federal Indian Law, Matthew L.M. Fletcher

Articles

There is a sovereignty problem in federal Indian law-namely, that the federal government's sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.

Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal …

Precedential Trauma: Integrating Trauma-Informed Judging In Federal Courts Of Appeals Through Opinion Writing, Alison Brochu

Roger Williams University Law Review

No abstract provided.

Ius Constituendum Pengaturan Ambang Batas Parlemen Berdasarkan Putusan Mahkamah Konstitusi Nomor 116/Puu-Xxi/2023, Arsyianti Mega Nanda, Erland Ferdinansyah

Jurnal Hukum & Pembangunan

Pemilu merupakan wujud pelaksanaan kedaulatan rakyat di Indonesia yang menganut sistem presidensial dan multipartai. Namun, banyaknya partai memicu instabilitas koalisi dan melemahkan dukungan terhadap presiden. Untuk mengatasi hal ini diterapkan ambang batas parlemen (Parliamentary Threshold). Putusan MK No. 116/PUU-XXI/2023 menyatakan ambang batas 4% konstitusional untuk Pemilu 2024, namun inkonstitusional untuk Pemilu selanjutnya. Putusan ini menegaskan perlunya ambang batas baru yang tidak hanya menyederhanakan sistem kepartaian, tetapi juga menjamin keadilan suara dan proporsionalitas sesuai prinsip kedaulatan rakyat. Penelitian ini menggunakan metode yuridis normatif dengan pendekatan kualitatif-deskriptif. Pengumpulan data dilakukan melalui studi kepustakaan. Kerangka teori yang digunakan dalam penelitian ini meliputi teori …

Menguak Status Dan Legalitas Rupiah Digital Sebagai Legal Tender (Perspektif Teori Keadilan Bermartabat), Sylvia Setjoatmadja, Jeferson Kameo

Jurnal Hukum & Pembangunan

Digital technology and modern telecommunications have been and will continue to be key factors in the emergence of various innovative products. One such innovative product is digital currency, specifically Central Bank Digital Currency (CBDC). In Indonesia, advancements in digital technology and telecommunications have encouraged the government to issue a CBDC, which will be named Digital Rupiah. The initiative to issue Digital Rupiah also responds to global trends and the public's need for secure, efficient, and sustainable payment instruments.

However, the plan to issue Digital Rupiah is not without challenges, particularly regarding the clarity of its legal status as a lawful …

History And Tradition As Heightened Scrutiny, Andrew Willinger

Faculty Scholarship

The Supreme Court is turning to methodologies privileging text, history, and tradition, or THT, to interpret and implement various constitutional provisions. The Court has recently endorsed historically-focused approaches to determine how the Second Amendment protects the right to keep and carry a firearm, how the First Amendment protects the rights to free speech and freedom of religion, and whether the Due Process Clause protects reproductive autonomy, among other questions.

Much scholarship and popular commentary surrounding THT portrays the methodology as sui generis: presenting unique analytical challenges and impervious to direct comparison to existing doctrinal approaches. However, the jurist most …

Understanding The Mechanisms Of Interpretative Change, Aaron-Andrew P. Bruhl

Faculty Publications

Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In federal statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are underway. There has been a gradual, decades-long shift away from intentionalist tools like legislative history. In addition, as the culmination of a series of smaller steps, the Supreme Court has just reshaped the doctrine governing deference to agency interpretations, a move that will require years of further clarification. And, although this shift is still taking shape, it appears that some …

Rebuilding The Foundation: Addressing A Crisis In Juror Participation, Paula Hannaford-Agor

Faculty Publications

Courts are experiencing dramatic decreases in juror response and appearance rates, threatening the future of jury trials and the legitimacy of the American justice system. Effective strategies exist to reverse this trend, if justice system stakeholders are willing to employ them.