Law Commons^™

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …

Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Gender, Race, And Intersectionality On The Federal Appellate Bench., Todd Collins, Laura Moyer

Faculty Scholarship

While theoretical justifications predict that a judge’s gender and race may influence judicial decisions, empirical support for these arguments has been mixed. However, recent increases in judicial diversity necessitate a reexamination of these earlier studies. Rather than examining individual judges on a single characteristic, such as gender or race alone, this research note argues that the intersection of individual characteristics may provide an alternative approach for evaluating the effects of diversity on the federal appellate bench. The results of cohort models examining the joint effects of race and gender suggest that minority female judges are more likely to support criminal …

Advocacy Through Briefs In The U.S. Court Of Appeals., Susan B. Haire, Laura P. Moyer

Faculty Scholarship

The focus of this paper is to evaluate the role of advocates in the U.S. Court of Appeals for the Seventh Circuit by examining the characterization of issues offered in appellate briefs against the issues addressed in the court's decisions. Specifically, in an environment in which attorneys are expected to frame the issues on appeal and judges are expected to respond to those issues, what accounts for judges addressing some issues while suppressing others? By explicitly focusing on how the substantive content of an opinion is shaped, we depart from other, earlier scholarship on the advantages of "repeat player" litigants …

Brief Amici Curiae Of Iowa Professors Of Law And History, Angela Onwuachi-Willig

Faculty Scholarship

This case calls upon the State of Iowa to reaffirm its historic commitment to protecting the equality and individual liberties of all of its citizens, including its lesbian and gay male citizens. It requires this Court to interpret Iowa’s unique constitution with due respect for both text and tradition. The case must be analyzed against the backdrop of Iowa’s leadership and courage in the areas of civil rights and family law, and the willingness of its judiciary to uphold constitutional mandates in the face of efforts to legislate prejudice and discrimination.

Plaintiff-Appellees seek nothing more than to share in the …

Nothing But The Truth? Experiments On Adversarial Competition, Expert Testimony, And Decision Making, Cheryl Boudreau, Mathew D. Mccubbins

Faculty Scholarship

Many scholars debate whether a competition between experts in legal, political, or economic contexts elicits truthful information and, in turn, enables people to make informed decisions. Thus, we analyze experimentally the conditions under which competition between experts induces the experts to make truthful statements and enables jurors listening to these statements to improve their decisions. Our results demonstrate that, contrary to game theoretic predictions and contrary to critics of our adversarial legal system, competition induces enough truth telling to allow jurors to improve their decisions. Then, when we impose additional institutions (such as penalties for lying or the threat of …

Administrative Law Agonistes, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it cannot realize directly. In this article I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with some but …

Which States Have The Best (And Worst) High Courts?, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with …

The Verdict On Juries, Neil Vidmar, Valerie P. Hans

Faculty Scholarship

No abstract provided.

Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins

Faculty Scholarship

reviewing Voices of American Law documentary series(Thomas B. Metzloff & Sarah Wood producers)

Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris

Faculty Scholarship

On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars of economic loss. The next day, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and recognizing the right of states to use armed force in self defense.

Imagining Gun Control In America: Understanding The Remainder Problem Article And Essay, Nicholas J. Johnson

Faculty Scholarship

Gun control in the United States generally has meant some type of supply regulation. Supply restrictions ranging from one-gun-a-month schemes to flat gun bans cannot work without a willingness and ability to reduce total inventory to levels approaching zero ("the supply-side ideal"). This is an impossible feat in a country that already has 300 million guns tightly held by people who think they are uniquely important tools. The average defiance ratio in places that have attempted gun confiscation and registration is 2.6 illegal guns for every legal one. In many countries defiance is far higher. None of those countries has …

The Virtue Of Judicial Statesmanship, Neil S. Siegel

Faculty Scholarship

Some of America’s most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if underappreciated, dimension of judicial role. I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself—over the long run and with respect to the nation …

The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos

Faculty Scholarship

The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with …

Preemption And Federal Common Law, Ernest A. Young

Faculty Scholarship

No abstract provided.

Renorming Immigration Court, Stacy Caplow

Faculty Scholarship

No abstract provided.

Romancing The Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts, created at the end of the 20th century, make court-based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court-based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem-solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through …

No Outsourcing Of Law? Wto Law As Practiced By Wto Courts, Petros C. Mavroidis

Faculty Scholarship

This article provides a critical assessment of the corpus of law that the adjudicating bodies of the World Trade Organization (WTO) – the Appellate Body (AB) and panels – have used since the organization was established on January 1, 1995. After presenting a taxonomy of WTO law, I move to discern, and to provide a critical assessment of, the philosophy of the WTO adjudicating bodies, when called to interpret it. In discussing the law that WTO adjudicating bodies have used, I distinguish between sources of WTO law and interpretative elements. This distinction will be explicated in part I below. Part …

Letting Guidelines Be Guidelines (And Judges Be Judges), Gerard E. Lynch

Faculty Scholarship

In a prescient New York Times op-ed piece entitled "Let Guidelines be Guidelines," written in response to the Supreme Court's decision in Blakely v. Washington, before certiorari was granted in United States v. Booker, Bill Stuntz of Harvard and Kate Stith Cabranes of Yale urged that the best solution for the constitutional crisis facing the United States Sentencing Guidelines would be to treat the Guidelines as guidelines, and not as a straightjacket. The Supreme Court evidently took a similar view, deciding in Booker that the Guidelines were constitutional only to the extent that they were not mandatory. The recent follow-up …

Courts, Constitutions, And Public Finance: Some Recent Experiences From The States, Richard Briffault

Faculty Scholarship

Unlike the federal Constitution, virtually all state constitutions give detailed attention to questions of public finance. State constitutions limit spending, mandate certain types of spending, constrain taxation and debt, and require special procedures for enacting a budget. One consequence of the constitutionalization of the state fisc is its judicialization, as these measures trigger litigation. Fiscal and political conflicts turn into legal disputes, with courts joining governors and legislatures in shaping state budgets and making state fiscal policy.

This chapter provides an early-21st-century snapshot of the state constitutional law of state finance through a survey of six recent state supreme court …

Overseers Or "The Deciders" – The Courts In Administrative Law, Peter L. Strauss

Faculty Scholarship

For the second time in a short period, Professors Miles and Sunstein have brought powerful tools of statistical analysis and diligent coding of circuit court of appeals opinions together to demonstrate what the Realists long ago taught us to suspect, that significant elements of judging can be explained in terms of the jurist's political world view – that the tension between law and politics is alive in judicial work as elsewhere and that it is only an aspiration to seek a world of laws and not of men. Elements of their work, though, appear as if in criticism of contemporary …