Courts Commons^™

La Cour! La Mer!, Mark A. Drumbl

Scholarly Articles

The presence of courts—la Cour, certainement, mais d’autres aussi—weaves and wends throughout The Last Colony. Fundamentally, this is a story of courts (tribunals, arbitrations, etc.) righting wrongs or, in the least, setting a tune for wrongrighting to which political institutions then can hum along. Philippe Sands evokes the solemnity of legalism with the ‘La Cour!’ greeting, which he plays and replays, and with which he begins his book. These are welcoming words, for Sands, and also welcoming words for law, insofar as they signal the opening of the International Court of Justice (ICJ)—La Cour!—for the …

2023-2024 Tennessee Judiciary Annual Report, Tennessee. Administrative Office Of The Courts.

Annual Reports

No abstract provided.

Trouble’S Bruen: The Lower Courts Respond, Glenn Harlan Reynolds, Brannon P. Denning

Scholarly Works

New York State Rifle & Pistol Ass'n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history and tradition after it was determined that state or federal regulations limited activities that fell within the protections afforded by the Second Amendment's text. Justice Thomas's opinion, however, left open significant questions about how the history-and-tradition method is to operate in practice. The Court recently held oral arguments in United States v. Rahimi, in which …

The Future Of State Standing And The Controversial Massachusetts V. Epa Decision: United States V. Texas And Biden V. Nebraska Provide Mixed Signals, Bradford Mank

Faculty Articles and Other Publications

An important question is under what circumstances should states have standing to sue the federal government. Should states have greater standing rights than private parties to protect states’ unique interests, or should all parties in federal courts have the same standing rights? In its 2007 decision Massachusetts v. EPA, the Supreme Court in a divided five-to-four decision stated that states are entitled to “special solicitude” for Article III standing in suits in federal courts, but a dissenting opinion argued that states ought to have the same standing rights as other parties in federal court. While Massachusetts initially appeared to …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Defendants-Appellees: St. Mary Catholic Parish V. Roy, Lauren Fontana, Catherine Smith, Tanya M. Washington, Robin Walker Sterling, Suzette Malveaux, Jeremiah Chin, Sara S. Hildebrand

Scholarly Articles

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the harms that four-year-olds in the LGBT community – LGBT children and children with LGBT parents – would bear should state-funded religious schools be granted a license to discriminate against them. An exemption to Colorado’s Universal Preschool Program’s equal-opportunity requirement would allow plaintiffs to discriminate against these children and plant unfair barriers in their paths to a high-quality education and inflict dignitary, psychological, and familial harms upon an entire class of young people solely because of their or their …

Disgusted Judges And Domestic Violence, Jessica Miles

Elisabeth Haub School of Law Faculty Publications

Domestic violence is disgusting. Seeing a person with a bruised face or black eye can make us cringe. Reading a graphic description of a physical or sexual assault by an intimate partner can lead to revulsion. Like the rest of us, judges experience disgust--both consciously and subconsciously--when confronted with evidence of abuse in intimate relationships. These feelings of disgust shape the judicial system's responses to domestic violence in non-obvious ways.

In the minority of cases which seem to be “clear cut” (e.g., involving recent and corroborated physical or sexual violence), judicial disgust with defendants found to have perpetrated domestic violence …

Meaningful Or Meaningless? The Temporal Scope Of The Constitutional Right Of Access To Courts For Incarcerated Litigants, Alison Aimers

Cardozo Law Review de•novo

This Note will advocate for the position taken by the Third and Seventh Circuits that incarcerated individuals’ right to affirmative assistance in accessing legal materials extends past the pleading stage to all stages of civil rights claims and post-conviction criminal appeals. U.S. Supreme Court precedent supports this position, and judicial clarity on this issue is required to best protect the constitutional right of access in light of significant existing barriers to incarcerated litigants’ access to courts.

Harnessing Hypocrisy: A Crack In The Supreme Court’S Colorblindness Mask, Zamir Ben-Dan

Cardozo Law Review de•novo

This Essay contends that the Supreme Court’s denial of certiorari in Harness v. Watson stands as a testament to its hypocrisy. The day after the Court professed an allegiance to promoting racial equality in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, it refused to even consider invalidating a clear barrier to racial equality. The day after the Court struck down a remedy designed to address a long, sad, and painful history of racism, the Court left undisturbed an obvious symbol of this long, sad, and painful history of racism. When juxtaposed against both the denial …

Professional Norms At A Crossroads: Farhane And Its Implications For Legal Counsel, Hayley Sandoval

Cardozo Law Review de•novo

This Note examines the right to effective assistance of counsel during guilty pleas through the lens of the pending Second Circuit case Farhane v. United States. This case will have significant implications for the right to effective legal representation, particularly in terms of defense attorneys’ duty to warn clients of the potential risk of denaturalization as a consequence of pleading guilty. In May 2024, the court reheard Farhane en banc and will issue a decision later this year. If this opinion aligns with the court’s initial decision, it will severely limit the rights of all defendants in criminal proceedings in …

Self-Defense And Political Rage, Erin L. Sheley

Faculty Scholarship

This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own …

Preambles Before The Preamble: Rediscovering The Preamble’S Role In Constitutional Interpretation, Stuart Ford

Brooklyn Law Review

This article explores how the Preamble to the Constitution (Preamble) would have been viewed when it was drafted by looking at how preambles were used in America in the seventeenth and eighteenth centuries. It offers the first comprehensive look at how preambles were viewed by lawyers, judges, politicians, and the public in the years before the Constitution was ratified. It demonstrates that courts’ modern treatment of the Preamble is at odds with its original meaning. Eighteenth-century Americans viewed the Preamble as an important tool for understanding and interpreting the Constitution. They would have expected courts to interpret the Constitution’s terms …

Balancing Preservation With Growth: How Less Judicial Deference To Decisions Made By The Landmarks Preservation Commission Can Save New York City, Amy Cushman

Brooklyn Law Review

The New York City Landmarks Law of 1965, envisioning the preservation of historical treasures, empowered the New York City Landmarks Preservation Commission (LPC) with the authority to designate and regulate landmarks and historic districts. Originally established in response to public outcry over the loss of iconic architectural structures, the LPC aimed to safeguard the city's cultural, social, and architectural legacy. However, this note contends that recent LPC decisions, particularly the issuance of Certificates of Appropriateness for luxury residential construction involving partial demolition of landmarks, betray the original preservation goals. Delving into the legal recourse available under the New York Civil …

Full Moon Or Full Fraud? A Proposed Method For Interpreting Emojis Under Rule 10b-5, Sophie Abrams

Brooklyn Law Review

In the wake of the COVID-19 pandemic, many Americans who were stuck at home turned to social media forums in search of community and investing advice. Fifteen million (and counting) of them found community in r/wallstreetbets, a group on Reddit that banded together to drive up the prices of “meme stocks.” Bed Bath and Beyond was one stock that piqued retail investors’ interest after seeing billionaire investor Ryan Cohen take a 10 percent stake and activist role in the company. However, Cohen ended up being a large disappointment to his retail investor fans, as he subsequently sold off his stake …

Plea Bargains, Prosecutorial Breach, And The Curious Right To Cure, Michael D. Cicchini

Brooklyn Law Review

When the prosecutor breaches a plea bargain—e.g., by recommending prison instead of the agreed-upon probation—the defendant is entitled to a remedy: either sentencing in front of a different judge or plea withdrawal. However, if defense counsel objects to the breach, the prosecutor may halfheartedly change the recommendation to probation. Most courts have held that to be an effective “cure”—even when the judge then sentences the defendant to prison, as the prosecutor originally recommended. The right to cure, which was intended for commercial sales contracts, fails miserably in the plea-bargain context. In the above example, the attempted cure is too late, …

On The 175th Anniversary Of The Wisconsin Constitution: An Examination Of The Early Court “Repairs” Of A Rushed Document, Steven M. Biskupic

Marquette Law Review

The Wisconsin Constitution was a document prepared in a hurry. The fall 1848 national election was expected to be a referendum on the spread of slavery and the only way for residents of the Wisconsin Territory to vote in the national election was for Wisconsin to become a state. In order to become a state, however, Wisconsin first needed a constitution. For forty days in late December 1847 and January 1848, a constitutional convention met in Madison. Using the 1840s equivalent, delegates “cut and pasted” whole sections from the constitutions of New York and Michigan, as well as from an …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …