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Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy
Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy
Faculty Scholarship
It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews …
Forgetting Functionality, Christopher Buccafusco, Jeanne C. Fromer
Forgetting Functionality, Christopher Buccafusco, Jeanne C. Fromer
Faculty Scholarship
In Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had an opportunity to clarify copyright law’s treatment of product designs that incorporate functionality. Its opinion failed to do so in a host of different ways. In this comment (as part of the symposium From Shovels to Jerseys: A Guide to Apply Star Athletica v. Varsity Brands), we address just one of the opinion’s shortcomings: its failure to adequately define and distinguish between a design’s functional and expressive features. Not only does the Court’s neglect produce uncertainty for creators, litigants, and judges, the opinion makes it substantially easier …
Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati
Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati
Faculty Scholarship
Variation exists in how death examinations take place in the United States. In some counties and states decisions about autopsies and the issuance of death certificates are made by a local coroner who often needs nothing more than a high school diploma to run for election to the job of coroner. In other counties and states, an appointed medical professional performs the death examination. We provide preliminary tests of the difference in performance between death examination offices run by appointed medical professionals compared with elected coroners. We find that death examiner offices in elected coroner states are less likely to …
Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel
Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel
Faculty Scholarship
Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …
The Implied Assertion Doctrine Applied To Legislative History, Noah Marks, Jessica Ranucci
The Implied Assertion Doctrine Applied To Legislative History, Noah Marks, Jessica Ranucci
Faculty Scholarship
This Article derives a new approach towards the use of legislative history to interpret statutes by adapting and applying the law of evidence. Courts use legislative history as hearsay evidence: out-of-court statements used for the truth of the matter asserted. Evidence law includes many exceptions under which hearsay becomes admissible. One such exception, the implied assertion exception, can be applied to courts' use of legislative history. Under this framework, legislative history can illuminate the interpretive enterprise, while many of the problems identified by opponents of legislative history are mitigated. After presenting the development of the implied assertion doctrine in evidence …