Courts Commons^™

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.

Going En Banc, Randy J. Kozel

Journal Articles

This Article examines the law of en banc review in the federal courts of appeals. It explores key doctrinal questions and advances a theory that maintains the primacy of three judge panels by focusing the en banc process on a specialized set of institutional tasks.

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” …

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 …

The Impact Of Divorce Proceedings On Victims Of Domestic Violence, Quinn G. Di Ienno

Honors Undergraduate Theses

Divorce often signifies the end of conflict in relationships that individuals no longer wish to continue. However, the impact of divorce on victims of intimate partner violence (IPV) is a topic that remains underexplored. This research investigates the extent to which individuals navigating divorce proceedings are victims of IPV and aims to illuminate their experiences within the legal system. The study delves into various forms of abuse, including physical, emotional, and financial, while also addressing the challenges victims face in seeking assistance. Employing a mixed-methods research design, this study comprises a comprehensive literature review and an online survey targeting those …

How Does The Modern Supreme Court Treat The Idea Of Retribution In The Context Of Capital Punishment?, Paige Forsberg

Honors Undergraduate Theses

This thesis explores the modern U.S. Supreme Court's treatment of retribution in the context of capital punishment, analyzing how justices have framed and justified the death penalty as a form of justice. Through the examination of key Supreme Court rulings and legal arguments, this study evaluates the evolving role of retribution in the Court’s decisions on death penalty cases, highlighting how judicial reasoning has shifted over time in response to legal, philosophical, and societal developments.

Retribution, long considered one of the primary justifications for capital punishment, is examined through a nuanced lens in this study. While historically viewed as a …

Exploring The Impact Of Attorneys With Exposed Tattoos On Jurors, Diego F. Mahoney

Honors Undergraduate Theses

Within the legal field, there appears to be a pervasive stigmatization of exposed tattoos. Law firms justify their explicit or implicit bans on exposed body art by arguing that tattoos could negatively prejudice jurors who may be biased against people with tattoos. This thesis intends to put that notion to the test via a digital survey. Subjects who meet the qualifications to serve as a juror in the United States were shown one of two identical videos of an opening statement. However, in one video the attorney has a neck tattoo, whereas in the other the attorney does not. Subjects …

Flexing The Celebrity Muscle: Celebrity Leverage In Trademark Law And Why Small Businesses Deserve Equitable Treatment, Victoria M. Lopez

Cardozo Arts & Entertainment Law Journal

The note examines the imbalance in trademark law disputes between celebrities and small businesses, arguing that celebrities often leverage their fame and resources to gain an unfair advantage. It highlights how this dynamic can overshadow the rights of small businesses, even when they have prior use of a trademark, as seen in the case of Beauty Concepts vs. Kim Kardashian. The analysis advocates for a more equitable approach to trademark law to protect small businesses from being disadvantaged by celebrity influence.

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.

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 Supervisory Power Of State Supreme Courts, Adam B. Sopko

Publications

State supreme courts are currently center stage as they face some of the most important issues of our time. But nearly all of the attention is focused on their ability to interpret state constitutions to provide rights guarantees that the U.S. Supreme Court has diminished or eliminated from the Federal Constitution. While important, judicial review is but one instance of a state high court’s authority. Their supervisory power—the primary source of judicial administrative authority—has served as a vital source of policymaking power to safeguard individual rights and enhance the public good. Supreme courts have relied on their supervisory power to …

Disrupting Public Defense: A Transitions Theory Approach, Matt Bender

Lewis & Clark Law Review

Public defense problems are well known, but a solution has been elusive. This Article analyzes public defense’s adaptive features using the Multi-Level Perspective (MLP) for the first time. The MLP is a theoretical framework that is often employed to study institutional and societal barriers to innovative ideas, like climate change responses and clean energy transitions. This Article describes the MLP’s theoretical model and uses it to examine why public defense reform consistently fails.

This Article then goes beyond the MLP framework to explore how transition management tools can be used to design and nurture new approaches to public defense. I …

Texas, Delaware, And The New Controller Primacy, Christine Hurt

Faculty Journal Articles and Book Chapters

In January 2024, Elon Musk, CEO of Tesla, Inc., initiated the process of moving Tesla’s state of incorporation from Delaware to Texas, citing concerns over Delaware corporate law. The move sparked discussions about the dominance of Delaware corporate law and its recent rulings, with critics accusing Court of Chancery judges of favoring shareholder interests over controller innovation and managerial discretion.

The shift away from Delaware is set against a backdrop of increasing judicial scrutiny in the Delaware Court of Chancery, where plaintiffs have recently seen successes in litigation against controlling shareholders, corporate directors, and officers. Concerns over Delaware’s evolving legal …

Rethinking Juror Impartiality, Anna Offit

Faculty Journal Articles and Book Chapters

Jury impartiality in the contemporary court often justifies the perpetuation

of exclusionary selection practices that make juries more—not less—biased.

This Article calls for a rethinking of this important but flawed concept. Constitutional

interpretations and conceptions of “impartiality” frame it as a transient

orientation toward particular evidence or parties. Yet, during voir dire, the prevailing

conception of jury impartiality is that it is an immutable character trait

that must be discovered—if not created—by professional legal actors. What voir

dire creates is not an impartial jury, but precisely the opposite: a venire shaped

by the strategic biases of lawyers.

This Article offers …

Dekolonisasi Hukum Perdata Indonesia: Kritik Terhadap Warisan Kolonial Dan Implikasinya Terhadap Pembangunan Hukum Berkeadilan, R. Mustar Lofi

Jurnal Hukum & Pembangunan

Hukum perdata Indonesia hingga kini masih berada di bawah bayang-bayang warisan kolonial, terutama melalui keberlakuan Burgerlijk Wetboek (BW) 1848 yang diwarisi dari Belanda. Meskipun berbagai peraturan baru telah diundangkan, fondasi utama hukum perdata belum sepenuhnya lepas dari struktur, nilai, dan cara pandang kolonial. Artikel ini mengkaji secara kritis bagaimana dominasi hukum kolonial masih berpengaruh dalam pembentukan dan penegakan hukum perdata di Indonesia, serta mengapa dekolonisasi menjadi penting dalam pembangunan sistem hukum yang berkeadilan. Dengan menggunakan pendekatan yuridis-normatif dan analisis interdisipliner dari perspektif sosiologis hukum dan filsafat hukum, tulisan ini menelusuri bagaimana warisan hukum kolonial menciptakan ketimpangan, terutama dalam hal akses …

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

Roger Williams University Law Review

No abstract provided.

Notice Pleading’S Quiet Return, Alexander A. Reinert

Articles

Fifteen years ago, the Supreme Court announced two significant civil procedure decisions – Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Together, Iqbal and Twombly marked a new approach to pleading in federal courts. No longer would courts apply the forgiving notice pleading standard, in force since the 1938 adoption of the Federal Rules of Civil Procedure. In its place, the Court introduced plausibility pleading, inviting district courts to apply their “judicial experience and common sense” to decide whether a claim was “plausible.” Commentators expressed alarm, predicting that the new standard …

Concrete And Particularized Standards To Resolve The Difficulty Of Muldrow V. City Of St. Louis, Ian C. Stephens

Student Scholarship

Muldrow v. City of St. Louis shattered a widespread rule that required Title VII plaintiffs to not just be harmed but significantly harmed by unlawful discrimination. Under the old standard, "significance" was ill-defined and often left to the whims of what any particular judge thought was "bad enough," limiting access to justice for those who suffered non-pecuniary harms. But Muldrow's new standard that a plaintiff must suffer only "some harm" is equally ill-defined. All we know about the new standard is that it is not the old one. Unable to decipher the bounds of when no harm becomes some harm …

When Accomodation Bars Access To Justice: Implications Of Video Remote Interpreting In Legal Settings, Quincy Craft Faber

Mitchell Hamline Law Review

No abstract provided.

No-Hire Rulings Forget Competition, Val Ricks

American University Law Review

Two recent and noted antitrust rulings on the legality of no-hire (or “no-poach”) agreements paid lip service to preserving and promoting competition for employees but in the end failed to apply competition as a standard. Instead—and this is seen only deep in the weeds of the decisions themselves, on careful reading—judges demanded that no-hire agreements be held illegal only when they constitute abuse of market power, more or less. These decisions impliedly distinguish horizontal agreements not to compete for employees from horizontal agreements not to compete for customers, or on price. The opinions tend to “require careful economic analysis” of …