Courts Commons^™

Nationality, Chiara Giorgetti

Law Faculty Publications

Nationality provides the foundation for the protection of a person, be it natural or corporate, under international law. As such, it is an essential and also a complex concept. It is essential because it provides the crucial link between the State and physical or juridical persons that ties the substantive principles of international investment law (IIL) to those individuals who can benefit from them, and thus also grants them access to their rights and remedies. It is also a complex concept because it is both a domestic and an international concept and not neatly regulated. International law recognizes the right …

"Who Are The Landlords Here?" - Group Rights In The Age Of Populism: Jewish Ownership Of Symbolic And Geographic Space In Israel, Meital Pinto

Cardozo International & Comparative Law Review

The world is witnessing the rise offar-right political parties. In Israel's recent national legislative election, Jewish Power (Otzma Yehudit), a far-right, anti-Arab political party, reached an unprecedented achievement. The party won six seats in the Knesset and its leader, Itamar Ben Gvir was appointed as the Minister of National Security. "Who are the Landlords Here?" was the party's election slogan; it signals that Jews should not only own the state but also its public space. This normative political statement aligns with the dominant attitude towards group rights for the Arab-Palestinian citizens of Israel. The dominant attitude perceives group rights in …

Taking Care Of Our Future: Considering Gender In Juvenile Reentry Reform, Delaney J. Dibble

Roger Williams University Law Review

No abstract provided.

From Andy Warhol To Barbie: Copyright’S Fair Use Doctrine After Andy Warhol Foundation V. Goldsmith, Niki Kuckes

Roger Williams University Law Review

No abstract provided.

From Margins To Center: Elevating The Voices Of Disadvantaged Families In Child Welfare, Jerron R. Wheeler

Faculty Articles

This essay sheds light on the systemic challenges faced by indigent, minority families within the child welfare system, using personal experiences from my time as a student at the University of Florida Levin College of Law as a lens. This essay aims to highlight the intersection of poverty, race, and the child welfare system, showing how these factors can hinder parents' ability to reunite with their children despite their best efforts. The essay seeks to underscore the urgent need for a more nuanced, multidisciplinary approach to child welfare advocacy that includes legal professionals, social workers, and health professionals working collaboratively …

Music, Mayhem, And A Mississippi: Still Burning-The Hope Of Smothering The Deleterious Effects Of Deliberate Indifference, Angela Dixon

Cardozo Journal of Equal Rights & Social Justice

The article argues that the deliberate indifference standard, as applied in Eighth Amendment jurisprudence, fails to adequately address inhumane and unconstitutional prison conditions, particularly in Mississippi. It critiques the standard for prioritizing prison officials' intent over objective conditions, allowing systemic neglect and racial disparities to persist. The analysis advocates for a shift toward an objective standard to better protect human dignity and hold prison administrators accountable.

Invisible Adjudication In State Supreme Courts, Adam B. Sopko

Publications

As the U.S. Supreme Court continues retrenching important constitutional rights, interest is shifting to state courts and constitutions to serve as a backstop. More and more, state supreme courts are at the center of some of our most important debates of law and policy, resolving questions concerning bodily autonomy, democracy, the environment, and more. The increased attention on state supreme courts highlights the complexity and nuance that attend these institutions and reveals our limited understanding of how they operate and influence society. This Article examines one such aspect of state supreme court practice: the shadow docket. While the U.S. Supreme …

Appoint Judge Ana De Alba To The Ninth Circuit, Carl Tobias

University of Richmond Law Review

The United States Senate must rapidly appoint Eastern District of California Judge Ana de Alba to the Ninth Circuit. This appellate tribunal is a preeminent regional circuit, which faces substantial appeals, has the largest complement of jurists, and clearly includes a massive geographic expanse. The nominee, whom President Joe Biden designated in spring 2023, would offer remarkable gender, experiential, ideological, and ethnic diversity realized primarily from serving productively with the California federal district, and state trial, courts after rigorously litigating for one decade in a highly regarded private law firm. For over fifteen years, she deftly excelled in law’s upper …

Merging The Bench, Bar, And Law Schools: How A Student Scholars Program Achieves Professional Identity Through Scholarly Writing, Mentorship, And Presentation, Joan Foley, Robin Boyle, Troy Kessler

Scholarly Works

This Article describes an innovative co-curricular program, the Student Scholars Program, that provides law students with an opportunity to present their scholarly papers before the bench, bar, and law school community. The Program aids law schools in meeting accreditation standards, such as the ABA Standards 302 and 303. Standard 302 requires law schools to achieve specific learning outcomes. Standard 303(b)(3) requires law schools to provide "substantial opportunities" for students to develop a "professional identity." This program aids schools in achieving these standards. Furthermore, this program increases interaction between students and the legal profession by creating episodic mentoring opportunities. Launched in …

Protecting Title Ix’S Promise: The Injustice Of Indifference In Title Ix Peer Sexual Harassment Cases, Emily Harvey

Emory Law Journal

Title IX of the Education Amendments of 1972 promised dramatic measures to address sex-based discrimination in education. In the context of civil suits against schools involving peer sexual harassment, these measures have yet to live up to their promise. Under the existing standard, student victims of peer sexual harassment must demonstrate that their educational institutions responded to their reports of harassment with “deliberate indifference.” This standard favors institutions over students as it imposes liability only in the most egregious cases. A deepening conflict between the circuit courts regarding what deliberate indifference actually requires compounds concerns over the standard’s ineffectiveness. Courts …

The End Of Arbitrage: Recent Chancery Court Decisions Highlight Delaware’S Need To Overturn Transkaryotic, Celia Golod

Emory Law Journal

Appraisal is a legislatively created right that affords a shareholder the ability to seek a judicial ruling on the fair value of their stock when their corporation undergoes a merger that they do not support. While this remedy is intended to protect shareholders from faulty merger negotiating, in the 2010s hedge fund petitioners in Delaware flooded the Delaware Chancery Court to use the remedy to make a profit—a tactic called appraisal arbitrage. While appraisal arbitrage theoretically acts as a back-end market check on controller abuses, appraisal litigation is lengthy and requires court resources. Further, appraisal arbitrage allows hedge fund petitioners, …

The Procedure Of Democratic Erosion, Kevin L. Cope, Mila Versteeg

Emory Law Journal

In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the target of such power-consolidating reforms, though they are not the only such target. Depending on their nature, such reforms are variously characterized as eroding democracy or being illiberal. But while they may be substantively undemocratic or illiberal, these reforms tend to be procedurally lawful. That is, they do not subvert the constitution outright but work within the existing constitutional framework, with reformers either formally changing the constitution or seeking new interpretations.

Why would leaders pursuing undemocratic reform follow …

Democratic Backsliding In The American States: The Case Of Judicial Independence, Meghan Leonard

Faculty Publications – Politics and Government

With ever-increasing gridlock and polarization at the national level, many new policy changes in the U.S. have come at the state level, including legislation that takes the form of democratic backsliding by restricting the right to vote, limiting free speech and expression, and gerrymandering state and federal legislative districts. A key component missing from scholarly discussion of federalism and the erosion of electoral democratic norms is the effect of federalism on the structure of institutions within the states, particularly on judicial independence. In this article, I examine the relationship between measures of democracy and introduction of court-curbing legislation in the …

Is Jacobson V. Massachusetts Viable After A Century Of Dormancy? A Review In The Face Of Covid-19, Sawan Talwar

Touro Law Review

The COVID-19 pandemic has stretched us into the vast unknowns, emotionally, logically, politically, and legally. Relying on their police power, governments inched into the darkness of the powers’ fullest extent, leaving many to wonder whether the exercise of this power was constitutional. This Article examines the extent of the police power that both the federal and state governments have, and how Jacobson v. Massachusetts1 was the “silver bullet” for governments across the United States. Further, this Article provides an overview of police power, and the status of COVID-19 mandates. This Article additionally examines quarantine case law and provides an analysis …

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron

Touro Law Review

No abstract provided.

SchröDinger’S Dissent: The Hybrid Authority Of A Dissenting Opinion, Christina M. Frohock

Marquette Law Review

A dissenting opinion is the Schrödinger’s cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is not binding. Outside the universe of precedent, that authority defies easy description. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of commentary. A dissenting judge writes to undercut the law, providing a case law coda. This Article describes the traditional categories of authority, primary and …

Fair Cross Section And Tribal Jury Composition: Vawa 2022 Tribal Criminal Jurisdiction Series, Paula Hannaford-Agor, Steve Aycock

Faculty Publications

The Violence Against Women Reauthorization Act of 2013 (VAWA 2013) amended the Indian Civil Rights Act (ICRA) to ensure that non-Indian criminal defendants in Tribal courts have the right to a trial by an impartial jury that is drawn from sources that 1) “reflect a fair cross section of the community” and 2) “do not systematically exclude any distinctive group in the community, including non-Indians.” This requirement applies when a non-Indian who is criminally prosecuted in Tribal court faces possible imprisonment.

The implementation of these jury provisions has been a topic of discussion among the Inter-Tribal Working Group on Special …

Clearing Up The Confusion: A Three-Part Framework For Applying The Copyright Preemption Clause To Right Of Publicity Claims, Annie Seay

Emory Law Journal

To prevent conflicting state-law interests and federal copyright interests in a single claim, Congress enacted Section 301 of the Copyright Act of 1976—providing a two-prong test to determine when a state-law claim is preempted by federal copyright law. Though Section 301 appears to be a clear and simple test, it has proven to be anything but. Between 1986 and 2023, six of the thirteen circuit courts decided whether state-law right of publicity claims are preempted by federal copyright law using the Section 301 two-prong test, but each court’s analysis was vastly different from the other. Specifically, the Second, Third, Fifth, …

Behind Closed Doors: How Some Civil Settlements May Harm The Public Good, Madison Donahue-Wolfe

University of San Francisco Law Review

No abstract provided.

Criminal Courteaucracy, Evelyn Malavé

Faculty Publications

Scholars have increasingly recognized that criminal courts in the age of mass incarceration, particularly lower criminal courts, have effectively shifted from an adjudicatory system of justice to a managerial system of justice. Rather than adjudicating guilt or innocence, criminal courts are engaged in risk management and social control. However, literature on criminal courts has almost exclusively focused on judges, prosecutors, and defense attorneys, and their roles in the adjudication of criminal cases. This Article will focus instead on the managerial function of criminal courts by shining a spotlight on a less-scrutinized set of actors: criminal-court administrators.

Through an in-depth case …