Courts Commons^™

Legal Standards Governing Modification Of Child Custody Orders, Christian T. Chandler

Maine Law Review

Child custody is an area of the law where the courts have tread cautiously. Bitter disputes between separating parents often erupt into court struggles over which parent will gain custody of the minor children. As a result of this discord, and the terrible toll it can take on both the parents and the children, the courts are wary of modifying the original custody decree and moving a child from one parent to another. Courts must vigilantly deter custody suits brought purely for vengeance or harassment. The court acts as the child's legal protector when a change of custody issue is …

Cameras In Maine's Courts: Has The Time Come? Will It Ever?, Joseph M. O'Connor

Maine Law Review

Should television cameras be allowed in Maine's courtrooms? The answer to this question implicates policies involving the rights of parties, witnesses, the media, and the public. Nearly ten years ago, the Supreme Court ruled conclusively that there is no constitutional impediment to allowing television coverage of trials in state courts. Since then, the majority of states have promulgated rules, with greater or lesser degrees of restriction, allowing television coverage of proceedings in their courts. This trend has not abated; with the adoption of audio-visual coverage rules by the Vermont Supreme Court in 1989, Maine is now the only New England …

The Child Witness In Sexual Abuse Cases In Maine: Presentation, Impeachment, And Controversy, Kermit V. Lipez

Maine Law Review

In any sexual abuse trial, the entry of the child into the courtroom is a dramatic moment. The large door to the courtroom opens. A small child enters, accompanied by a victim advocate who walks with the child toward the witness stand. At the end of the public seats, the child is turned over to a court officer who escorts the child to the witness stand. In the typically high-ceilinged, expansive courtroom where we conduct our jury trials, the small child looks even smaller. Some children slouch in the witness chair, as if they were trying to hide. The jurors …

The Problem With Direct Collateral Review, Jaden M. Lessnick

Pepperdine Law Review

Federal habeas review of state convictions is sharply circumscribed for a reason: Granting the writ of habeas corpus disrupts the federalism and finality interests that lie at the heart of state sovereignty over criminal law. Both the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Supreme Court’s equitable bars to relief reflect the structural dangers inherent in collateral review of state convictions. Given the increasing unavailability of federal habeas relief, state prisoners have turned to another vehicle for collateral federal review, one that bypasses AEDPA’s demanding standard: direct review of state post-conviction proceedings. And regrettably, the Court has entertained …

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

Cy Pres Silliness: Remedies That Do Not Remediate The Harm, Phil Pillari

Northwestern University Law Review

Class actions play an important role in civil litigation, but they suffer from a serious problem. No matter how many plaintiffs are in the class, the individual claims are often miniscule, which can make distributing the inevitable settlement futile. Very few people make a claim, and it often costs more to mail the check than the check is worth. To solve this problem, Steven Shepherd proposed importing the cy pres doctrine (a trusts and estates device that allows courts to rewrite an unenforceable trust) into the class actions context. Shepherd’s framework instructs courts to devise the next best alternative for …

A Feedback Loop Of Exclusion: The Treatment Of Bilingualism In The Courtroom, Simone Stover

Northwestern University Law Review

In the 1991 case Hernandez v. New York, the United States Supreme Court characterized bilingualism as a race-neutral trait that can be used to exclude individuals from jury service. This Note proceeds by demonstrating how the current state of the law undermines the interests of bilingual individuals and then proposes a solution. Focusing specifically on Hispanic bilingual Spanish speakers, this Note first employs Professor Jennifer Lackey’s multi-directional credibility model to show that bilingual Spanish speakers suffer injustice in the courtroom due to both credibility deficits and excesses. Following this analysis, it proposes a possible solution to this issue: an …

The Obvious Violation Exception To Qualified Immunity: An Empirical Study, Bailey D. Barnes

Faculty Publications

Qualified immunity shields government officials from civil suits for discretionary actions, as long as the violated right is not clearly established. A right is deemed established when every reasonable official would understand it based on precedent, placing it beyond debate, such that only the plainly incompetent may be held liable. Consequently, even when an act infringes on one's civil rights, a court may deny relief owing to a lack of factually comparable precedent. However, in 2020, the Supreme Court indicated its distrust for overreliance on precedent in certain contexts. In Taylor v. Riojas, the Court held that prison officials violated …

There Is No Helpful General Rule About Appealing Dismissals Without Prejudice, Bryan Lammon

Michigan Law Review Online

With some frequency, courts wrestle with whether litigants can appeal after dismissal without prejudice. But there is no helpful general rule to answer this question. That’s because the without-prejudice designation is more or less irrelevant to whether the dismissal is a final, appealable decision. In this Essay, I show that the nature of the underlying dismissal— what the dismissal did, not its without-prejudice nature—is what matters for appealability. Courts would do well to ignore whether an action was dismissed without prejudice when it comes to determining appealability.

How To Impeach A Verdict: A Response To Melanie C. Regis, Cynara Hermes Mcquillan

Scholarly Works

No abstract provided.

Vertical Restraints In An Amazon World, Martin Edwards

Dickinson Law Review (2017-Present)

Vertical restraints are a peculiarity, even among the dizzying array of contracts subject to antitrust scrutiny. While current law treats vertical restraints permissively, antitrust reformers have added this permissive treatment of vertical restraints to their list of proposed reforms. The reformers have softly proposed that courts apply a presumption of illegality standard for vertical restraints— greater scrutiny than the current standard, the rule of reason. This Article argues that doing so is inadvisable.

Producers and their consumers both want the same thing: the best overall product experience for the money. The critical economic functions of vertical restraints are to enable …

Contempt: The Original Judicial Cheat Code, Ryan L. Scott

Dickinson Law Review (2017-Present)

The judicial contempt power challenges the fundamental rights enshrined in America’s Constitution. Imagine spending eight years in federal prison with no right to a jury trial or a court appointed attorney. Your only reprieve is the discretion of the judge who is imprisoning you. Meaningful appeals and even habeas corpus actions are generally not available remedies. Instead, what was originally justified as an inherent power of the court, necessary to maintain order and decorum, is increasingly used for trivial offenses or to incarcerate individuals for far longer than their possible crimes would otherwise warrant.

Despite widespread instances of abuse of …

Command Responsibility And The War In Ukraine: Can Customary International Law Hold Russian Commanders Accountable For War Crimes?, Nicholas J. Nizinski

Dickinson Law Review (2017-Present)

Currently, neither Ukraine’s Constitution nor its criminal code establish the principle of command responsibility as a mode of criminal liability within the country. Key international statutes like Article 28 of the International Criminal Court and international case law, like the recently decided Case of Milanković v. Croatia, have firmly established the doctrine of command responsibility as a fundamental principle of customary international law applicable in the context of an armed conflict. Furthermore, the Milanković court affirmed a conviction based on command responsibility even in the absence of a clear domestic governing statute at the time the crime was committed, …

An Updated Practical Guide To Taking And Defending Depositions, Gary S. Gildin

Dickinson Law Review (2017-Present)

The deposition offers a singular opportunity to handcuff the deponent to an irreversible script. Consequently, both the attorney taking the deposition and defending counsel must prepare for and conduct the deposition with equal if not greater care than the trial.

Traditionally, lawyers have used the deposition to discover facts relating to the legal elements and the credibility, perception, and recollection of the witness. However, recent breakthroughs in neuroscience as to how the brain makes decisions have revealed a different genre of evidence that will drive how the trier of fact will decide the case. Today an attorney taking a deposition …

Greater Of Two Evils: Trial Penalty Or Plea Penalty?, Breanne Potter

Cardozo Journal of Equal Rights & Social Justice

The article critiques the prevalence of plea bargaining in the U.S. criminal justice system, arguing that while it is often seen as a necessary evil for efficiency, it undermines constitutional rights and perpetuates injustice. The author introduces the concept of the "plea penalty," which refers to the significant and often overlooked consequences of accepting a guilty plea, such as the loss of rights and long-term collateral consequences. The article challenges the notion that the trial penalty—harsher sentences for those who go to trial—is the only concern, emphasizing that the plea penalty can be equally detrimental. It advocates for systemic reforms …

The Liv Golf V. Pga Tour Antitrust Case As A Case Study In Federal Civil Procedure, Michael J. Dube

Dickinson Law Review (2017-Present)

This Article uses LIV Golf Inc. v. PGA Tour, Inc., a sophisticated and headline-grabbing antitrust matter, as a means of instantiating federal civil procedure concepts. The first Part of this Article addresses the unsuccessful motion for a temporary restraining order that in many ways shaped how the litigation proceeded. The second Part examines the dance that is discovery through a focus on a drawn-out dispute regarding a single interrogatory. The final Part drills down on a more novel discovery dispute that began the path towards settlement, namely whether the Foreign Sovereign Immunities Act of 1976 and related common-law doctrine …

Standing At The Crossroads: An Analysis Of The Circuit Split Over Ada Tester Standing, Jennifer Tedisco

Cardozo Journal of Equal Rights & Social Justice

This Article analyzes the circuit split concerning whether self-appointed testers without intent to travel or book a reservation have Article III standing to sue hotels forfailing to disclose accessibility information on their websites in violation of an Americans with Disabilities Act ("ADA") regulation. This Article ultimately argues that these testers should have standing under an informational injury and/or stigmatic injury rationale. However, negative perceptions ofADA testers coupled with the Supreme Court's recent standing decisions haveput the private enforcement of the ADA and other disability rights statutes in jeopardy. In hopes ofpreserving the ability oftesters to bring suit against hotels and …

Book Review: John Paul Stevens, The Making Of A Justice: Reflections On My First 94 Years, New York, Little, Brown And Co., 2019, Pp. 549, $35.00 (Hardback), Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The autobiography of Justice John Paul Stevens, published just a few months before he died, is an enticing travelogue for Supreme Court nerds. Other travelers may want to pick a different landscape.

U.S. District Judge Orders Indiana Department Of Correction To Provide Gender-Affirming Surgery For Transgender Individual With Severe Gender Dysphoria, Arthur S. Leonard

Other Publications

No abstract provided.

Access To Justice As Access To Data, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

This Keynote Address, delivered in celebration of the launch of SCALES, discusses the importance of making local and state court data available for research on the functioning of the American civil justice system. It describes the regulatory and administrative challenges of obtaining good-quality data from courts. It calls for a concerted effort among researchers and policymakers to develop open-source technologies for the development of case management systems and data infrastructure. And it urges researchers to foster a collaborative research ecosystem based on broadly sharing court data.