Courts Commons^™

De/Reconstructing Delinquency, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

Hundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA+ comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court …

Trauma-Informed Courts? How Judges May Influence Kids’ Experiences Of Court, Eva Mckinsey, Amelia Ashton Thorn, Minjee Kristin Kim, Catherine Gorey

Faculty Scholarship

No abstract provided.

Automating International Human Rights Adjudication, Veronika Fikfak, Laurence R. Helfer

Faculty Scholarship

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of …

The Judicial Administrative Power, Jonathan Petkun, Joseph Schottenfeld

Faculty Scholarship

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and …

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 …

Defining The Field Of Judicial Administration, Marin K. Levy

Faculty Scholarship

This Keynote address, as part of a symposium on "Theorizing the Judicial Process," aims to make a case for the field of judicial administration and to define the field more generally. Specifically, it seeks to raise the organizing questions of the field and to note the kind of work--descriptive, empirical, and theoretical--that is needed to answer them. The hope is to map out a collective research agenda for courts scholars to pursue into the future for the benefit of the academy and judiciary, both.

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 …

Administering Presidential Elections And Counting Electoral Votes After Trump V. Anderson, Derek T. Muller

Journal Articles

In the landmark case Trump v. Anderson, the Supreme Court unanimously held that states lack the unilateral power to exclude presidential candidates from the ballot on the basis of Section 3 of the Fourteenth Amendment. But while the Court was united in its essential holding, the Justices fractured in their reasoning, leaving significant questions about Congress's role in enforcing Section 3 against presidential candidates.

This Article examines the fault lines in Trump v. Anderson and analyzes how Congress's power to count electoral votes under the Twelfth Amendment intersects with its authority to enforce Section 3 of the Fourteenth Amendment. …

Judicial Accountability, Anya Bernstein

Faculty Scholarship

Judicial decisions are moving ever more authority over regulatory statutes away from agencies and to courts instead. One justification offered for this power transfer: agencies lack the accountability of courts. This Article takes up that claim, assessing the institutions’ relative capacities for accountability in their authoritative interpretations of regulatory statutes—agency regulations and court rulings. I take accountability to involve actors undertaking reasoned decisionmaking grounded in publicly recognized values and facts and justifying their decisions to others who can evaluate, influence, or override those judgments. Accountability thus involves a give and take: it gives an account of government reasoning to a …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

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 …

Fixing Mfw: Fairness And Vision In Controller Self-Dealing, Zohar Goshen, Assaf Hamdani, Dorothy S. Lund

Faculty Scholarship

The legal regime governing controlling shareholders relies on the ability of Delaware courts to police conflicted transactions under the stringent "entire fairness" standard of review. This review involves both implicit valuation – evaluating the transaction process, and explicit valuation – assessing the fairness of the transaction's financial terms. This Article reveals a critical flaw in this regime: courts cannot reliably engage in valuation when the transaction involves an entrepreneur's idiosyncratic vision for the company. As a result, there is a gaping hole in Delaware's framework for policing the fairness of controller transactions.

Delaware courts have developed guardrails to avoid judicial …

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 …

Assembling Pieces Of Accountability For The Srebrenica Genocide, Annick Pijnenburg, Nataša Nedeski

Genocide Studies and Prevention: An International Journal

The Srebrenica genocide has been the subject of multiple legal proceedings against various actors before different courts, at both the national and international level. Amongst others, the International Criminal Tribunal for the Former Yugoslavia has sentenced various individual perpetrators, the International Court of Justice has ruled on the responsibility of the Serbian state, and Dutch courts have been asked to rule on the liability of the Dutch state and the United Nations. This raises the following question: to what extent have multiple adjudicatory mechanisms across legal regimes managed to deliver accountability for the Srebrenica genocide and what are the remaining …

Ghost Guns: A Case Study On The Tension Between Public Exigencies And Statutory Construction, Bradley Krause

Catholic University Law Review

Administrative agencies often navigate public policy issues while simultaneously handling complex and highly technical matters. When facing a public emergency, how should courts interpret these agencies’ authorizing statutes? What rules of thumb exist to guide the courts? This Comment answers these questions through a case study on ongoing litigation pertaining to a recent ATF (Bureau of Alcohol, Tobacco, and Firearms) regulation. The regulation, targeted towards ghost guns (also known as “privately manufactured firearms”), seeks to incorporate these weapons within pre-existing definitions in the ATF’s authorizing statute, the Gun Control Act of 1968 (GCA). In spite of challenges to the regulation, …

A Conversation With Justice Brett Kavanaugh, Brett M. Kavanaugh, J. Joel Alicea

Catholic University Law Review

On Thursday, September 26th, 2024, the Center for the Constitution and the Catholic Intellectual Tradition at The Catholic University of America hosted a conversation between Justice Brett M. Kavanaugh and Professor J. Joel Alicea. This was the inaugural event of the new Center. The conversation covered topics such as constitutional interpretation, the separation of powers, religious liberty, and the Catholic intellectual tradition. This is a transcript of the conversation, and the text appears substantially as it was delivered. The video of the event may be found at this link: https://www.youtube.com/watch?v=2sKvSwzkmqo.

All’S “Fair” In Love & Copyright: Copyright’S Incentivization Of Fiction Through The Second Fair Use Factor & Idea/Expression Dichotomy, Peyton J. Smetana

Catholic University Law Review

Copyright Law is supposed to encourage authors to create works of authorship, both factual and fictional. However, Copyright jurisprudence has developed to only protect expression, and not idea, to ensure the continued dissemination of knowledge. In solidifying this belief, two doctrines—Fair Use and the idea/expression dichotomy—allow for individuals to utilize other works of authorship without it being considered copyright infringement. Though widely used throughout the judicial system, the analysis for both the second Fair Use factor—Nature of the Copyrighted Work—and the idea/expression dichotomy are left without clear guidelines, leaving judges with an insurmountable task of determining what is and is …

Education Within Prisons: The Good And The Bad, Tristan T. Morris

Quest

Independent Study

Research in progress for CRIJ 1301: Introduction to Criminal Justice

Faculty Mentor: Stefanie LeMaire

This manuscript began from a response to a discussion prompt in my Introduction to Criminal Justice course where students were asked to discuss some of the issues facing inmates upon release from incarceration. Tristan completed outside research on the relationship between education and recidivism among incarcerated individuals. More specifically, she wanted to discuss the barriers to successful reintegration and programs that have been introduced to address these concerns. Most offenders will be released from incarceration, and they will reenter our society. There is a …

State V. Sweatt: An Examination Of The Current Confusion In Fourth Amendment Standing, John Archer Hobson

Maine Law Review

In State v. Sweatt the Maine Law Court held that an owner of gems being sold on consignment in a third party's store has standing under the fourth amendment to contest the seizure of the gems. The movants in Sweatt were the targets of several police searches during October and November of 1980. During these searches the police seized tourmaline gemstones which were alleged to have been stolen from Dale Sweatt's former business partner, and miscellaneous personal items belonging to the Sweatts. Subsequently, the Sweatts moved for suppression and return of all these articles. The superior court granted the movants' …