Jurisprudence Commons^™

War Courts: Fdr, National Security, And The War On Terrorism, Harvey Gee

Dickinson Law Review (2017-Present)

No abstract provided.

Lewd, Rude, Obscene, And… Violent? Analyzing Student Clothing Depicting Firearms Under The First Amendment’S Obscenity Test, Luke Gorman

Dickinson Law Review (2017-Present)

Today’s national news and social media have repeatedly exposed our school-age children to the effects of shootings occurring within their schools and communities. Each shooting brings with it commentary, sometimes from the students themselves. While in-school student speech is more limited than speech levied in the outside world, students do not shed their speech rights at the “schoolhouse gate.” As a result, courts have failed to outline a consistent approach for when a student will be punished for wearing a shirt depicting a firearm to school. This Comment addresses this delicate balance by proposing a consistent three-part test framed by …

Dobbs V. Brown, Benjamin H. Barton

Dickinson Law Review (2017-Present)

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court …

Original Discontent, William Magnuson

Faculty Scholarship

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about …

Structuring The President’S Removal Power: An Agency-Specific Approach, Peter Margulies

American University Law Review

Recent Supreme Court decisions have taken a broad view of the President’s power to remove executive branch officials. According to the Court, the President’s Article II obligation to “take Care that the Laws be faithfully executed” generally requires that the President have authority to remove officials at will. The Court has thus far declined to overrule Humphrey’s Executor v. United States, a 1935 decision upholding “forcause” restrictions on removal for multi-member “quasi-judicial” bodies such as the Federal Trade Commission (FTC). Nonetheless, recent Court decisions have eroded the rationale in the earlier case, which has received additional attention because of efforts …

Fourth Amendment Hydraulics And Programmatic Surveillance, David C. Gray

American University Law Review

There is a hydraulic relationship between Fourth Amendment rights and remedies. When rights expand, remedies shrink, and vice versa. That makes good sense. At its heart, the Fourth Amendment requires striking a reasonable balance between the competing interests of citizens and their government. Expanding rights by, say, adopting a more expansive definition of “searches,” or applying the Fourth Amendment to a new category of government conduct, compromises government interests. When this happens, courts can, and should, bring things back into balance by adjusting remedies.

Sometimes the Court is cognizant of this hydraulic relationship. When the Court expanded Fourth Amendment rights …

Art. Iii-Gpt, Nick Mckinley

Catholic University Journal of Law and Technology

This article recommends the development and deployment of an Artificial Intelligence (AI) large language model (LLM) tool by and for the federal judiciary. LLMs are revolutionizing legal practice, and judges should accordingly be familiar and in regular practice with LLM technology. LLMs can greatly assist the courts by increasing operational efficiency and public access to justice. Particularly, LLMs can improve efficiency in legal research, legal writing, and administration. LLMs present limitations or potential problems in the form of prompt dependency and harmful bias, limitations of data in their training sets, privacy and confidentiality, and the production of false or fabricated …

Court Review: Journal Of The American Judges Association, Vol. 61, No. 2, Eve M. Brank, David J. Dreyer, Reba Ann Page, Jane Manning

Court Review: Journal of the American Judges Association

Contents

Understanding GenAI What Courts Should Know, AI Rapid Response Team of the National Center for State Courts

Large Language Models, Newer, More Powerful Large Reasoning Models, and the Courts, Pablo Arredondo and Javed Qadrud-Din

Any Sufficiently Transparent Magic... Damien Patrick Williams

Principles and Practices for Using AI, Thomson Reuters Institute/National Center for State Courts

Evidentiary Issues Raised by Artificial Intelligence, Thomson Reuters Institute/National Center for State Courts

Bench Card: Acknowledged AI-Generated Evidence, Thomson Reuters Institute/National Center for State Courts

Bench Card: Evaluating Unacknowledged AI-Generated Evidence, Thomson Reuters Institute/National Center for State Courts

Want to Know More About AI? ABA …

Court Review: Journal Of The American Judges Association, Vol. 61, No. 3 & 4, Eve M. Brank, David J. Dreyer, Reba Ann Page

Court Review: Journal of the American Judges Association

Contents

Civil Cases in the Supreme Court’s October Term 2024, Thomas M. Fisher

Consensus and Conflict Over Context: Select Criminal Law and Procedure Cases from the Supreme Court’s 2024-25 Term, Eve Brensike Primus and Elena Schultz

Yes, There’s a Public Trust Crisis but Your Daily Efforts Can Reverse It, Emily LaGratta and Tom R. Tyler

Was That Wrong? Spontaneity’s Role in Judicial Discipline Allegations, John W. Valente, Shawn C. Marsh, and Tahliah Ling

Correction: Large Language Models, Newer, More Powerful Large Reasoning Models, and the Courts

Editors' Note, Reba Ann Page and David J. Dreyer

Thoughts from Canada: The Supreme …

Abolish What?, Benjamin Levin

Scholarship@WashULaw

From leading academic journals to popular press outlets, abolitionist activism and scholarship have earned airtime in national debates about criminal justice reform. But what is "abolition?" When scholars, lawyers, and activists talk about abolition, they seem to mean very different, even conflicting, things. In this Essay, I focus on a core question that might divide different abolitionists-and different critics of abolition: what is to be abolished? Abolitionists argue that it's critically important to abolish something, while critics of abolition insist that something is necessary to a well-functioning society. Yet, it's not always clear what that something is-both for abolitionists and …

Auditing Criminal Justice Minimalism, Trevor George Gardner

Scholarship@WashULaw

If criminal justice minimalism is a shared principle among criminal law scholars, it can help to clarify the quality of our disagreements. Every normative proposal in the criminal legal literature can be held to the minimalist standard—audited, so to speak, to account for the policy author’s minimalist claims. To this end, this Essay proposes a four-step framework by which to evaluate adherence to the minimalist principle, where each step serves as a hub for pointed scholarly debate regarding the path to minimalist criminal justice.

Historical Tradition, The Second Amendment, And Marrying Gun Rights And Regulation: Examining The Proposals In Gavin Newsom's Twenty-Eighth Amendment And Their Place In Second Amendment Jurisprudence, Guy Cheatham

American University Journal of Gender, Social Policy & the Law

In September 2017, Stephen Paddock checked into rooms 32-134 and 32- 135 at the Mandalay Bay Hotel in Las Vegas. Both rooms looked over the Route 91 Festival in Las Vegas Village. Over the course of five days, Paddock brought twenty-two suitcases into his room: five on September 25th, seven on the 26th, two on the 28th, six on the 30th, and two on October 1st. On September 30th, Paddock placed “Do Not Disturb” signs on the doors of rooms 32-134 and 32-135. Paddock considered booking the high level suites for weeks; Google searches from May to September 2017 reveal …

The Doors Of Janus: A Critical Analysis Of The Socio-Technical Forces Eroding Trust In The Rule Of Law, Anuj Puri, Esther Keymolen

Cardozo Arts & Entertainment Law Journal

The Rule of Law is neither just a principle nor solely the institutions that embody that principle, a critical aspect of the Rule of Law is its grounding in trust which often gets neglected in the surrounding discourse. When the citizens' trust in the Rule of Law weakens, the Rule of Law becomes fragile. In this article we examine the impact of emerging technologies on the citizens' trust in the Rule of Law. Our analysis is specifcally focused on the effect of systemic disinformation which is likely to worsen with the advent of Generative AI, algorithmic misgovernance, and the digitalization …

Foreword, Jedediah Britton-Purdy, Justin Deystone

Publications

No abstract provided.

Stereotypes As Character Evidence, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Base rate evidence often connects a defendant to an act through the defendant’s membership in a certain population. It includes evidence arising from forensic analysis, criminal profiling, statistical analysis, artificial intelligence, and many other common and emerging scientific methods. But while this evidence is prevalent in civil and criminal trials, it is poorly understood, and there is little predictability in how a court will decide its admissibility or even what standard the court will apply.

In this Article, I show that although some forms of base rate evidence are desirable and even critical to achieving an accurate case outcome, a …

Breaking Kayfabe, Thomas B. Bennett

Faculty Journal Articles and Book Chapters

The membership of the Supreme Court affects how it decides cases. This maxim is well accepted among the public. But it is exceedingly rare for Supreme Court opinions to acknowledge this fact, even when it provides the best explanation for the Court’s behavior. And in the unusual instance in which Supreme Court opinions do refer to changes in the Court’s membership, it is jarring. This Article explores two questions that flow from these uncontroversial facts. First, why does it happen so rarely? Second, why does it happen at all?

To answer these questions, the Article looks to an unusual source: …

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 …

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

Roger Williams University Law Review

No abstract provided.

Guided Autonomy: A Research-Based Approach To Improving Students' Wellbeing And Decision-Making In The Development Of Problem-Solving Skills, Jonathan E. Moore

Akron Law Faculty Publications

Law schools and the legal profession face a wellbeing crisis. Law students and lawyers suffer from high rates of depression, substance abuse, and job dissatisfaction. Research shows that cultivating autonomy—the sense of control over one’s own decisions and actions—is key to wellbeing and success in legal education and practice. Yet, fostering autonomy in new law students is challenging, as too much independence too soon can overwhelm learners and increase stress. This article introduces a “guided autonomy” approach for law students, with a focus specifically on legal writing courses. The article combines insights from Self-Determination Theory and Cognitive Load Theory to …

The Inadequacy Of Perpetuating Vestiges Of Segregation In K-12 Curriculum: The Justiciability Of Reviewing Duties To Adequacy In Florida's Education Clause, Soumya Sreerama

American University Journal of Gender, Social Policy & the Law

Although the Supreme Court declared segregation the most abusive affront to education and ruled to eliminate vestiges of segregation “root and branch,” those same roots have grown unchecked to remain prominent today. One of the undercurrents of state-sponsored discrimination that has escaped desegregation remedies is the skewed, whitewashed curriculum that permeated K-12 classrooms in Jim Crow America. More troubling, is that those vestiges of an inadequately biased curriculum are still slithering in students’ courses today. Although student movements and education reformists have attempted to counter skewed curricula by supplementing them with separate ethnic studies courses, states like Florida recently passed …