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Full-Text Articles in Law
The Court And The Private Plaintiff, Elizabeth Beske
The Court And The Private Plaintiff, Elizabeth Beske
Articles in Law Reviews & Other Academic Journals
Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …
Supreme Court Interruptions And Interventions: The Changing Role Of The Chief Justice, Tonja Jacobi, Matthew Sag
Supreme Court Interruptions And Interventions: The Changing Role Of The Chief Justice, Tonja Jacobi, Matthew Sag
Faculty Articles
Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices improved in recent years, and whether the structural change in argument helped. It shows that interruptions decreased during the pandemic but then resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for …
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
Articles in Law Reviews & Other Academic Journals
This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …
The Endgame Of Court-Packing, Kyle Rozema, Daniel Epps, Adam Chilton, Maya Sen
The Endgame Of Court-Packing, Kyle Rozema, Daniel Epps, Adam Chilton, Maya Sen
Scholarship@WashULaw
At several points in history, politicians and commentators have proposed adding seats to the Supreme Court to accomplish partisan ends. We explore the incentives for a political party to initiate “court-packing” and what the Supreme Court would look like in a world where political parties engage in repeated partisan court- packing. To do so, we use an Agent-Based Model and different data sources to calibrate the behaviors of Presidents, Congresses, and Supreme Court justices. We then simulate the future composition of the Court in worlds with and without court-packing. The simulations suggest that a political party with an initial minority …