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Full-Text Articles in Law
The High Cost Of Eviction: Struggling To Contain A Growing Social Problem, Judith Fox
The High Cost Of Eviction: Struggling To Contain A Growing Social Problem, Judith Fox
Journal Articles
Matthew Desmond’s Pulitzer Prize winning book, focused public attention on the issue of eviction. As a result, scholars have begun to investigate and challenge some of the assumptions made in the book. Primarily, is eviction the cause of poverty or one of its consequences? This article explores several options in an attempt to explain the high number of evictions in America. These include, among others, the lack of affordable housing, failed governmental policies, the rise of institutional landlords and the role of courts. The article highlights some interventions that have begun to show progress in easing the burden of eviction. …
On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr
On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr
Notre Dame Law Review
In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this …
Resurrecting Trial By Statistics, Jay Tidmarsh
Resurrecting Trial By Statistics, Jay Tidmarsh
Journal Articles
“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …
Resolving Cases On The Merits, Jay Tidmarsh
Resolving Cases On The Merits, Jay Tidmarsh
Journal Articles
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
Withdrawing Jurisdiction From Federal Courts, Charles E. Rice
Withdrawing Jurisdiction From Federal Courts, Charles E. Rice
Journal Articles
Courts today accept two incorrect assumptions when interpreting the federal constitution. First, they assume that the judiciary is the sole branch with the definitive power in interpreting the Constitution. Second, they assume that the Supreme Court's decisions on constitutional interpretation are the law of the land and equal to the language of the Constitution itself. This Article proposes that Congress ought to exercise its removal power of appellate jurisdiction from the federal courts in certain areas of law to limit the Supreme Court’s power in creating law that expands the Constitution, which is mistakenly viewed today with equal stature as …
Comparative Judicial Review And Constitutional Politics, Donald P. Kommers
Comparative Judicial Review And Constitutional Politics, Donald P. Kommers
Journal Articles
Donald P. Kommers reviews Richard D. Baker's Judicial Review in Mexico: A Study of the Amparo Suit (Austin and London: University of Texas Press, 1971); B. L. Strayer's Judicial Review of Legislation in Canada (Toronto: University of Toronto Press, 1968); Heinz Laufer's Verfassungsgerichtsbarkeit und politischer Prozess (Tiibingen: J.C.B. Mohr [Paul Siebeck ], 1968); Mauro Cappelletti's Judicial Review in the Contemporary World (Indianapolis: The Bobbs-Merrill Company, Inc., 1971); Edward McWhinney's Judicial Review (4th ed.) (Toronto: University of Toronto Press, 1969); Richard E. Johnston's The Effect of Judicial Review on Federal-State Relations in Australia, Canada, and the United States (Baton Rouge: Louisiana …