Courts Commons^™

Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the …

The Supreme Court And The Challenges For Fiscal Federalism: Mineral Area Development Authority V Steel Authority Of India, Sanyukta Chowdhury, Amit Chowdhury

National Law School Journal

This case comment analyses the 2024 Supreme Court judgement in Mineral Area Development Authority v Steel Authority of India, in which the court upheld the states’ power to tax mineral rights and mineral-bearing land. The authors discuss the issues involved, the approach of the bench towards interpretation, and the implications for the parties to the case and other stakeholders. They argue that while fiscal federalism is crucial to India’s constitutional scheme, the bench had limited leeway in deciding the case on this basis due to the absence of legal, doctrinal, and factual clarity.

The Vanishing Appeal?, Stefanie A. Lindquist, Kirk Randazzo

Scholarship@WashULaw

Appellate filings in the United States Courts of Appeals demonstrate a considerable decline since 2006, following an historical trend in increasing caseloads throughout the twentieth century and early parts of the twenty-first. This phenomenon deserves evaluation. In this Article, we demonstrate the trend using data from the Administrative Office of the U.S. Courts and advance a number of potential hypotheses that might assist in explaining the trend, including decreasing trial rates, unique case type and circuit variations, trends in pro se litigation, and political explanations. Ultimately, the trend in case filings in the federal appellate courts is likely the product …

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarship@WashULaw

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures …

State Constitutional Prohibitions Of Slavery And Involuntary Servitude, Michael L. Smith

Faculty Articles

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the Amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes. Recent criticism draws on concerns over mass incarceration and expansive forced labor practices—urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, some states have taken matters into …

Shades Of Justice: Exploring Colorism In The Hispanic Community And Its Legal Battle For Equity, Christel A. Infante

Honors Undergraduate Theses

This thesis focuses on the racial disparity within the Hispanic and Latinx communities as injustices exist within the community and the workplace. Racial disparities in the United States have been a persistent and deeply rooted issue that has plagued the nation for centuries. Despite significant progress in civil rights and anti-discrimination legislation, disparities in areas such as education, employment, and criminal justice persist. Understanding the factors contributing to these disparities is essential for addressing systemic inequalities and fostering a more just society. The analysis of this thesis primarily focuses on the cases and ramifications of Hispanic persons within the workplace, …

One Size Does Fit All: A Quasi-Federal Solution To The Euro-Centric Structural Shortcomings Of The Icc, Anivesh Bharadwaj

Cardozo International & Comparative Law Review

The article critiques the International Criminal Court's (ICC) centralized structure in The Hague, arguing that it undermines transparency, accessibility, and legitimacy, particularly for victims and witnesses in remote regions. The author proposes a "quasi-federal" framework to decentralize the Court, enabling regional proceedings while maintaining a central Appeals Chamber and Presidency. This restructuring aims to address structural flaws, enhance deterrence, and improve justice delivery by bringing proceedings closer to affected communities.

The Joy Of The Fight: What Litigators Can Learn From The Martial Arts, Len Niehoff, Tim Lynch

Articles

You walk into a martial arts training studio (in Japanese styles, a dojo) and you scan the room. Everything going on here looks, well, unpleasant. In one corner, you observe a group of students performing kata, choreographed sequences of kicks, punches, and blocks that simulate the experience of fighting multiple opponents. Sweat pours off them. In another corner, you see two students engaged in sparring exercises, or kumite. The sharp, smacking noise of one student striking the protective pads worn by another carries across the room. In a third corner, you notice students doing push-ups, working their muscles until their …

Virtual Justice?: An Analysis Of Access To Court For People Experiencing Homelessness, Kaitlin Humer

Theses and Dissertations (Comprehensive)

Homelessness in Canada remains a wicked social problem that often intersects with compounding forms of marginalization. The criminalization of homelessness and living life in the public sphere explain, in part, why this population is likely to interact with the criminal justice system. Following the onset of the pandemic, the courts were forced to modernize and embrace digital technologies to maintain operations. Now four years since these changes, there are no signs of turning back and the court system is continuing forward with a hybrid model. Despite this, there is minimal research on the impact of virtual court proceedings on people …

The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley

Scholarly Works

Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”

The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

2023 State-Of-The-States Survey Of Jury Improvement Efforts, Paula Hannaford-Agor, Morgan Moffett, Breanna Bell

Faculty Publications

In 2007, the National Center for State Courts (NCSC) published findings from the State-of-the-States Survey of Jury Improvement Efforts (SOS Survey), the first comprehensive snapshot of jury operations and jury trial practices in the United States. The 2007 SOS Survey featured three discrete components: a statewide survey documenting legal infrastructure for juries and jury trials in each state; a local court survey, which documented jury operations at the county-level in state courts; and a judge & lawyer survey, which asked respondents to describe the characteristics and procedures employed in their most recent jury trial.

By the mid-2010s, NCSC began receiving …

The Constitutional Court Of Kosovo In Comparative Perspective, Christie S. Warren

Faculty Publications

...presented at the Solemn Ceremony of the 14th Judicial Year of the Constitutional Court, held on 23 October 2023 in Prishtina and on the occasion of the International Conference “Contribution of Constitutional Courts in the protection and strengthening of the fundamental values of democracy, the rule of law and fundamental human rights and freedoms”, organized on 24 October 2023 in Prishtina.

The Constitutional Court Of Indonesia As A Post-Conflict Institution, Christie S. Warren

Faculty Publications

In post-conflict settings, constitutional courts have important roles to play despite complex and often competing challenges they face to institutionalize their legitimacy and entrench the rule of law while attempting to build bridges from conflict to peace. By processing political conflict through legal means, constitutional courts can shift the tenor of public dialogue and provide a less inflammatory platform for analyzing conflicts that have divided societies. This article analyzes two seminal cases decided by the Constitutional Court of Indonesia in the aftermath of post- Suharto conflict and finds that despite its young age, the Court addressed lustration issues and a …

Standing For Elections In State Courts, Miriam Seifter, Adam B. Sopko

Publications

Litigation has become a fixture of electoral contests. Litigants today often challenge every step of an election, from the results themselves to picayune aspects of administration. In response to this deluge, some courts have rejected election lawsuits on standing grounds. Such rulings may be unsurprising in federal court, given the tension between the federal standing doctrine's injury requirements and the generalized nature of many election disputes. But most recent election cases take place in state court, where neither Article III nor the premises animating federal standing doctrine apply. State courts need election justiciability theories of their own.

This Article explores …

Standing Without Injury, Jonathan Adler

Faculty Publications

This Article seeks to assess Judge Newsom’s proposed injury-less approach to standing in federal court. Part I of this Article provides a brief overview of current standing doctrine, the requirements of standing consolidated in Lujan, and how these requirements have been interpreted and applied by the Supreme Court. Part II describes Judge Newsom’s critique of contemporary standing doctrine and outlines the two primary components of his proposed alternative: 1) elimination of the standing requirement in favor of a simple cause-of-action requirement and 2) recognition of an external constraint on standing derived from Article II, rather than Article III.

Part …

Trademark Fair Use Is No Joke, Christine Haight Farley

Cardozo Arts & Entertainment Law Journal

The article critiques the Supreme Court's decision in Jack Daniel's Properties v. VIP Products, arguing that the Court missed an opportunity to clarify the relationship between trademark law and the First Amendment. While the Court acknowledged the importance of protecting parodies, it failed to develop a comprehensive framework for balancing trademark rights with free speech. Instead, it introduced a narrow rule that limits the application of the Rogers test, potentially undermining speech protections in trademark disputes. The article contends that the Court's reliance on the likelihood of confusion test is insufficient to address the broader First Amendment implications of …

Barrier Breakers: Celebrating The Rhode Island Supreme Court’S First Female Majority, Kailey E. Chalmers

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

Law Faculty Scholarship

No abstract provided.

Judges And The Regulatory State: Trends Of Resistance And Restraint, Luke Norris

Law Faculty Publications

The last great confrontation between courts and the regulatory state occurred at the turn of the previous century. As courts in the first decades of the twentieth century resisted regulatory laws designed to protect workers and curb market excesses, they sustained broad legal and public critique, including claims that they were guardians of corporate power and monied and propertied interests. The showdown, as is familiar fare, was seemingly resolved in the New Deal, with the Supreme Court and judiciary largely accepting the constitutionality of federal and state regulatory laws. The compromise that emerged, dubbed the “New Deal settlement,” ostensibly called …