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Articles 1 - 12 of 12
Full-Text Articles in Law
Taking Courthouse Discrimination Seriously: The Role Of Judges As Ethical Leaders, Susan Saab Fortney
Taking Courthouse Discrimination Seriously: The Role Of Judges As Ethical Leaders, Susan Saab Fortney
Faculty Scholarship
Sexual misconduct allegations against Alex Kozinski, a once powerful judge in the U.S. Court of Appeals for the 9th Circuit, spotlighted concerns related to sexual harassment in the judiciary. Following news reports related to the alleged misconduct, Chief Justice John G. Roberts, Jr. charged a working group with examining safeguards to deal with inappropriate conduct in the judicial workplace. Based on recommendations made in the Report of the Federal Judiciary Workplace Conduct Working Group, the Judicial Conference approved a number of reforms and improvements related to workplace conduct in the federal judiciary. The reforms included revising the Code of …
Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado
Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado
Faculty Scholarship
In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …
Bargaining For Abolition, Zohra Ahmed
Bargaining For Abolition, Zohra Ahmed
Faculty Scholarship
What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.1 Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.2 The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …
The Right To Counsel In A Neoliberal Age, Zohra Ahmed
The Right To Counsel In A Neoliberal Age, Zohra Ahmed
Faculty Scholarship
Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …
The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran
The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran
Faculty Scholarship
Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In …
The Living Rules Of Evidence, G. Alexander Nunn
The Living Rules Of Evidence, G. Alexander Nunn
Faculty Scholarship
The jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. Ushered in on the wings of a growing positivist movement, the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. Instead, committees, conferences, and members of Congress would regulate any change to our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code.
The codification of evidence law, though, has proven problematic. The arrival of the Federal Rules of Evidence has given rise to a historically anomalous era of relative stagnation in the doctrinal …
Endogenous And Dangerous, Brian N. Larson
Endogenous And Dangerous, Brian N. Larson
Faculty Scholarship
Empirical studies show that courts frequently cite cases that the parties did not cite during briefing and oral arguments—endogenous cases. This Article shows the cognitive and rational dangers of endogenous cases and presents an empirical study of their use. I contend that judges should avoid using endogenous cases in their reasoning and opinions. This Article’s first significant contribution is to provide the first exhaustive treatment in the American legal literature of the rational bases upon which defeasible legal deductions and legal analogies may be built and the critical questions or defeaters that can weaken or bring them down. As far …
Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive, Linda C. Mcclain, Brittany K. Hacker
Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive, Linda C. Mcclain, Brittany K. Hacker
Faculty Scholarship
Liberal feminism remains a significant strand of feminist jurisprudence in the U.S. Rooted in 19th and 20th century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism’s focus remains to challenge unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of …
A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer
A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer
Faculty Scholarship
This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …
“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher
“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher
Faculty Scholarship
A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …
Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer
Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer
Faculty Scholarship
Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional …
The Political Economy Of Wto Exceptions, Timothy Meyer
The Political Economy Of Wto Exceptions, Timothy Meyer
Faculty Scholarship
In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism—essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives—addressing the central environmental, public health, and economic issues of the day—all likely violate World Trade Organization (WTO) rules governing …