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Full-Text Articles in Law
Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl
Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl
Faculty Publications
An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.
This …
The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl
The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl
Faculty Publications
"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …
Separating Amicus Wheat From Chaff, Aaron-Andrew P. Bruhl, Adam Feldman
Separating Amicus Wheat From Chaff, Aaron-Andrew P. Bruhl, Adam Feldman
Faculty Publications
No abstract provided.
Symposium: Business In The Roberts Court - Introduction: Still In Search Of The Pro-Business Court, Jonathan H. Adler
Symposium: Business In The Roberts Court - Introduction: Still In Search Of The Pro-Business Court, Jonathan H. Adler
Faculty Publications
The Supreme Court under Chief Justice Roberts is often described as a “pro-business” court. Many commentators believe that Court is particularly sympathetic to business interests in concerns. A 2016 volume, Business and the Roberts Court turned a critical eye to this hypothesis. In September 2016, the Center for Business Law & Regulation at the Case Western Reserve University School of Law hosted a symposium to further explore how the Roberts Court deals with business issues. Papers from this conference were published in the Case Western Reserve Law Review, and this brief article served as the Introduction for this symposium.
The Amicus Machine, Allison Orr Larsen, Neal Devins
The Amicus Machine, Allison Orr Larsen, Neal Devins
Faculty Publications
The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. …
The Trouble With Amicus Facts, Allison Orr Larsen
The Trouble With Amicus Facts, Allison Orr Larsen
Faculty Publications
The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the …
Following Lower-Court Precedent, Aaron-Andrew P. Bruhl
Following Lower-Court Precedent, Aaron-Andrew P. Bruhl
Faculty Publications
This Article examines the role of lower-court precedent in the US Supreme Court’s decisions. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, this Article analyzes a variety of potential reasons …
Confronting Supreme Court Fact Finding, Allison Orr Larsen
Confronting Supreme Court Fact Finding, Allison Orr Larsen
Faculty Publications
No abstract provided.
The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove
The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove
Faculty Publications
Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …
Precedent, Aaron-Andrew P. Bruhl
The Structural Case For Vertical Maximalism, Tara Leigh Grove
The Structural Case For Vertical Maximalism, Tara Leigh Grove
Faculty Publications
Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …
What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson
What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson
Faculty Publications
Section 411(a) of the Copyright Act of 1976 provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” In this case, a district court approved a class action settlement that purported to resolve both registered and unregistered copyright claims. The Supreme Court is being asked to decide whether that registration requirement is a limitation on federal court subject-matter jurisdiction.
Standing Still In The Roberts Court (Panel), Jonathan H. Adler
Standing Still In The Roberts Court (Panel), Jonathan H. Adler
Faculty Publications
This Article, prepared for the Case Western Reserve Law Review symposium on “Access to the Courts in the Roberts Era,” offers a preliminary look at the standing jurisprudence of the Roberts Court. Contrary to claims made by some Court commentators, the Roberts Court has not tightened the requirements for Article III standing. To the contrary, insofar as the Roberts Court has altered the law of standing, it has made it easier for at least some litigants to pursue their claims in federal court. The Court’s decisions denying standing have largely reaffirmed prior holdings. By comparison, some of the Court’s decisions …
Business, The Environment, And The Roberts Court: A Preliminary Assessment, Jonathan H. Adler
Business, The Environment, And The Roberts Court: A Preliminary Assessment, Jonathan H. Adler
Faculty Publications
The Roberts Court has developed a reputation for being a "pro-business" court. This article, prepared for the 29 Santa Clara Law Review symposium on "Big Business and the Roberts Court," seeks to offer a preliminary assessment of this claim with reference to the Roberts Court's decisions in environmental cases. Reviewing the environmental law decisions of the Roberts Court to date reveals no evidence of a "pro-business" bias. This does not disprove the claim that the Roberts Court is pro-business, but it may suggest the need to refine conventional descriptions of the Roberts Court. The lack of a pro-business orientation in …
The D'Oh! Of Popular Constiutitonalism, Neal Devins
The D'Oh! Of Popular Constiutitonalism, Neal Devins
Faculty Publications
No abstract provided.
Congress And The Making Of The Second Rehnquist Court, Neal Devins
Congress And The Making Of The Second Rehnquist Court, Neal Devins
Faculty Publications
No abstract provided.
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
Faculty Publications
No abstract provided.
The Democracy-Forcing Constitution, Neal Devins
The Democracy-Forcing Constitution, Neal Devins
Faculty Publications
No abstract provided.
Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins
Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins
Faculty Publications
With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation in the …
Book Review Of Clement Haynsworth, The Senate, And The Supreme Court, Davison M. Douglas
Book Review Of Clement Haynsworth, The Senate, And The Supreme Court, Davison M. Douglas
Faculty Publications
No abstract provided.
The Enduring Example Of John Marshall Harlan: "Virtue As Practice" In The Supreme Court, William W. Van Alstyne
The Enduring Example Of John Marshall Harlan: "Virtue As Practice" In The Supreme Court, William W. Van Alstyne
Faculty Publications
No abstract provided.
Scholarly Reflections On The Court And The Constitution, Michael Ashley Stein
Scholarly Reflections On The Court And The Constitution, Michael Ashley Stein
Faculty Publications
No abstract provided.
Book Review Of The Second American Revolution, Neal Devins
Book Review Of The Second American Revolution, Neal Devins
Faculty Publications
No abstract provided.
The Supreme Court And The Privilege Against Self-Incrimination: Has The Burger Court Retreated?, Paul Marcus
The Supreme Court And The Privilege Against Self-Incrimination: Has The Burger Court Retreated?, Paul Marcus
Faculty Publications
No abstract provided.