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Mapping The Science Of Law: A Jurimetrics Analysis, Jeyshankar -. Ramalingam -, Nishavathi E

Library Philosophy and Practice (e-journal)

This article provides an outline for jurimetrics and its role in finding most relevant and influential decisions of Supreme Court of India particularly in the topic of sexual harassment covering the period of 5 years (2012 to 2016). It retrieved 35 precedents that cited 662 legal information sources. These precedents are further analyzed with the network measures such as degree centrality, closeness centrality and authoritative scores to find out the influential and relevant decisions in sexual harassment. The precedents of Supreme Court of India (V_n=575) legal citation network is created to map the science of law.

A Close Reading Of An Excellent Distant Reading Of Heller In The Courts, George A. Mocsary

Faculty Articles

This invited Comment examines the quantitative analysis of postiDistrict of Columbia v Heller icommon law performed by Professors Eric Ruben and Joseph Blocher in iFrom Theory to Doctrine An Empirical Analysis of the Right to Keep and Bear Arms Afteri Heller Their groundbreaking and provocative work seeks to advance Second Amendment scholarship in two important ways First it aims to describe Second Amendment doctrine by quantifying aspects of that constitutional provision's common law Second it challenges the view that lower courts have deliberately and systematically undercut both the right to bear and the right to keep arms as articulated by …

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions to …

How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon

Pepperdine Law Review

Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases …

Ministry Through Musical Performance: Establishing Biblical, Historical, And Pedagogical (Educational) Precedent For The Christian Performing Artist, Lindsey Graham

Doctoral Dissertations and Projects

As a performing artist, the author suggests in an “American Idol” culture, Christian artists have largely lost their identity as worshipers with a ministry of the Gospel through music. The Christian performing artist has the responsibility to commit to spiritual maturity and personal growth. This thesis project proposes the artist is a communicator of the Gospel through music and seeks to substantiate the Christian performing artist through biblical, historical, and educational rationale and precedent. Biblical rationale of the Christian performing artist is considered in Old Testament and New Testament principle and precedent. Historical rationale and precedent is established through the …

Protecting Discretion: Judicial Interpretation Of The Discretionary Function Exception To The Federal Tort Claims Act, Donald N. Zillman University Of Maine School Of Law

Maine Law Review

In 1996 the Federal Tort Claims Act turns fifty. Few statutes reach the half-century mark only slightly amended and with their primary purposes still intact. The Federal Tort Claims Act is one such rare statute. The purpose of the Federal Tort Claims Act (FTCA) was to make the United States liable for the torts of its employees committed in the scope of their employment. Today that sounds commonplace. Half a century ago, however, a considerable legislative effort was needed to overturn the doctrine of sovereign immunity that forbade the recovery of tort damages against the United States. Congress's rejecting sovereign …

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.

Bridging The Gap: Transistioning Law School Legal Writing Skills To Practicing Law, Jason G. Dykstra

Jason Dykstra

Stylistically ... law school legal writing differs somewhat from writing in practice. ...This article ... is designed to help transition the legal writing skills honed in law school to the practice of Law. [excerpt]

The Lottery Docket, Daniel Epps, William Ortman

Michigan Law Review

We propose supplementing the Supreme Court’s caseload with a “lottery docket” of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term. The Court’s free hand in agenda setting has obvious benefits, but it has drawbacks as well. It deprives the Court of critical information about how the law operates in ordinary cases. It signals to circuit courts that …

Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven

Michigan Law Review

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internet-jurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that …

Precedent And Constitutional Structure, Randy J. Kozel

Northwestern University Law Review

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion.

Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical …

Mostly Settled, But Right For Now, Corinna Lain

Law Faculty Publications

Randy Kozel’s book, Settled Versus Right: A Theory of Precedent, is a laudable effort to make the law more stable, more cohesive, more impersonal — an effort to show that the law can endure even as Justices come and go. The core of his contribution is a proposed doctrine of stare decisis that disentangles deference to precedent from the interpretive methodologies that led to the precedent in the first place, and that so often determine the amount of deference a precedent gets. As a purely doctrinal project, Settled Versus Right naturally assumes that if we fix the doctrine, we’ll fix …

The Language Of Neutrality In Supreme Court Confirmation Hearings, Carolyn Shapiro

Dickinson Law Review (2017-Present)

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials—like statutes and precedents— and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some senators, however, they differed from answers given …

Keeping Up With Your Sister Court: Unpublished Memorandums, No-Citation Rules, And The Superior Court Of Pennsylvania, Logan Hetherington

Dickinson Law Review (2017-Present)

As Pennsylvania’s intermediate appellate court of general jurisdiction, the Pennsylvania Superior Court decides thousands of cases each year. The vast majority of those cases are disposed of via unpublished memorandums. These unpublished memorandums are designated as non-precedential and may not be cited by parties before the Superior Court. As a result, litigants and their counsel may not even persuasively cite an unpublished memorandum in briefs or other papers submitted to the Court. Thus, if counsel finds an unpublished memorandum deciding the identical issue of the case at hand and counsel is before the Superior Court judge who authored that opinion, …

To Speak Or Not To Speak, That Is Your Liberty: Janus V. Afscme, David Forte

Law Faculty Articles and Essays

Some Supreme Court precedents go through extensive death spasms before being interred. Lochner v. New York, Plessy v. Ferguson, and Austin v. Michigan Chamber of Commerce come to mind. Others like Chisholm v. Georgia and Minersville School District v. Gobitis incurred a swift and summary execution. Still others, overtaken by subsequent cases, remain wraith-like presences among the Court’s past acts: Beauharnais v. Illinois and Buck v. Bell, for example, remain “on the books.”

Our Principled Constitution, Mitchell N. Berman

All Faculty Scholarship

Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical …