Law Commons^™

Expertise And Opinion Assignment On The Courts Of Appeals: A Preliminary Investigation, Jonathan Remy Nash

Florida Law Review

This Article examines the role of expertise in judicial opinion assignment and offers four contributions: First, this Article develops a general theory of opinion assignment on multimember courts. Second, this Article uses that theory to predict how expertise might influence opinion assignment. Third, because the theory advanced in this Article suggests that the courts of appeals are far more likely to witness experience-based opinion assignment than is the Supreme Court, this Article contributes to an understanding of opinion assignment practices in this understudied area. Fourth, this Article identifies two settings in which the theory this Article advances should have observable …

The Lock-In Effect Of Preliminary Injunctions, Kevin J. Lynch

Florida Law Review

One important bias economists and psychologists have identified is the lock-in effect. The lock-in effect causes a decision maker who must revisit an earlier decision to be locked in to that earlier decision. The effect is particularly pronounced where the earlier decision led to the investment of resources that cannot be recovered. Although lock-in does not prevent the decision maker from altering course, it does introduce a systemic bias that should be taken into account.

Preliminary injunctions require judges to assess the merits of a case at an early stage and then revisit the merits later. In the early stages …

When The Commerce Clause Goes International: A Proposed Legal Framework For The Foreign Commerce Clause, Naomi Harlin Goodno

Florida Law Review

The world is becoming a smaller place. Technology and the Internet have made global travel and communication easier, quicker, and more common. Novel legal issues arise every day to deal with this modern interconnected world. How does the law address these new problems?

Congress is allowed “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The scope of Congress’s power to regulate commerce “among the several States” (the “Interstate Commerce Clause”) has long been debated. In the modern world of global interaction, Congress’s power to regulate commerce “with foreign Nations” (the “Foreign Commerce …

Regulation By Amicus:The Department Of Labor’S Policy Making In The Courts, Deborah Thompson Eisenberg

Florida Law Review

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts.

Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the …

Brown V. Plata: Renewing The Call To End Mandatory Minimum Sentencing, Steven Nauman

Florida Law Review

After more than twenty years of litigation, the United States Supreme Court finally determined whether California’s overcrowded prison system created a constitutional violation in Brown v. Plata. With prisons and jails across the country operating at well over 100% capacity, the Court concluded what advocates had been screaming for over a decade: prison overcrowding cannot be tolerated, and the only remedy is to reduce prison populations. What the Court failed to resolve, however, was what the primary cause of prison overcrowding is and how states and the federal government are supposed to comply with capacity expectations amid concerns for …

Bringing Our Children Back From The Land Of Nod: Why The Eighth Amendment Forbids Condemning Juveniles To Die In Prison For Accessorial Felony Murder, Mariko K. Shitama

Florida Law Review

Over 2,589 individuals sit in prison, where they have been condemned to die for crimes they committed before their eighteenth birthday. At least a quarter of these individuals received this sentence for accessorial felony murder, or a crime in which they did not kill or intend to kill the victim. Beginning with Roper v. Simmons in 2005 and continuing with Graham v. Florida in 2010, recent Eighth Amendment jurisprudence has recognized that juveniles are fundamentally different from adults in ways that limit the constitutionality of imposing adult punishment on them. In June 2012, the Supreme Court held that sentencing juveniles …

The Dimensions Of Judicial Impartiality, Charles Gardner Geyh

Florida Law Review

Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when “we are all legal realists now,” perfect impartiality—the complete absence of bias or prejudice—is at most an ideal; “impartial enough” has, of necessity, become the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: a procedural dimension, in which impartiality affords parties a fair hearing; a political dimension, in which …

Judicial Logrolling, F. Andrew Hessick, Jathan P. Mclaughlin

Florida Law Review

In the federal judicial system, multiple judges hear cases on appeal. Although assigning cases to multiple judges provides a number of benefits, it also generates the potential for conflict. Because each judge has his own set of preferences and values, judges on appellate panels often disagree with each other. Judges currently resolve these disagreements by filing separate opinions or drafting compromise opinions. A different way to resolve these disagreements is to allow vote trading across cases. Scholars and judges have condemned this practice, however, and judges have insisted that it does not occur.

This Article argues that the blanket condemnation …

The Flight From Judgment, Jennifer Hendricks

Florida Law Review

In their book, Practical Wisdom: The Right Way to Do the Right Thing, Barry Schwartz and Kenneth Sharpe highlight the task of sentencing a convicted criminal as quintessentially calling for practical wisdom. Wisdom, they argue, is not a transcendent state to be achieved by mystical means but a skill that must be learned and improved by practice, trial, and error. It is grounded in empathy, which is the cognitive ability “to imagine what someone else is thinking and feeling.” A person’s capacity for wisdom can be stunted by rote adherence to inflexible rules or by carrots and sticks that …

The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning

Florida Law Review

Ben Barton’s recent paper concludes that the members of the current Court are more “cloistered and detached” than at any other point in the Court’s history. His findings are bound to renew calls for the appointment of politicians to the Court; but I argue that remedying the perceived deficit of life experience and “practical wisdom” by appointing persons currently or formerly active in partisan politics would likely not deliver the claimed benefits and might affirmatively harm the Court as an institution.

The Pre-Appointment Experience Of Supreme Court Justices, Timothy P. O’Neill

Florida Law Review

Benjamin H. Barton’s recent article, An Empirical Study of Supreme Court Justice Pre-Appointment Experience, makes a significant contribution to the growing body of work that compares and contrasts the professional and educational backgrounds of the current members of the Roberts Court with their predecessors. I share Professor Barton’s concerns.

The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash

Florida Law Review

It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple punishments problem. As is often the case, the incrementalist approach taken by the Court allowed this conquest to occur somewhat quietly. Professor Pamela Karlan observes that “most constitutional law scholars have hardly noticed that the most significant innovation in substantive due process during the Rehnquist and Roberts Court years” has been the Court’s punitive damages jurisprudence. …

Two Faces Of Judicial Restraint (Or Are There More?) In Mcdonald V. City Of Chicago, Nelson Lund

Florida Law Review

Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they undermine liberal precedents or strike down liberal legislation. Defenders of judicial activism have all but disappeared. One sign of this apparent consensus is that all Supreme Court nominees now promise to be paragons of judicial restraint. Any of the following quotes, for example, could easily have been uttered by any of the four most recent nominees: …

Surpassing Sentencing: The Controversial Next Step In Confrontation Clause Jurisprudence, Amanda Harris

Florida Law Review

After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing. This Note takes two new approaches to the Confrontation Clause at sentencing debate. First, this …

Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, And The Methodology Of Legal Scholarship, Chad M. Oldfather, Joseph P. Bockhorst, Brian P. Dimmer

Florida Law Review

The increasing availability of digital versions of court documents, coupled with increases in the power and sophistication of computational methods of textual analysis, promises to enable both the creation of new avenues of scholarly inquiry and the refinement of old ones. This Article advances that project in three respects. First, it examines the potential for automated content analysis to mitigate one of the methodological problems that afflicts both content analysis and traditional legal scholarship—their acceptance on faith of the proposition that judicial opinions accurately report information about the cases they resolve and courts‘ decisional processes. Because automated methods can quickly …

An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Benjamin H. Barton

Florida Law Review

This Article compares the years of experience that preceded each Justice‘s appointment to the United States Supreme Court. This Article seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from those of earlier Supreme Court Justices and to persuade the reader that this is harmful. To determine how the current Justices compare to their historical peers, the study gathered a database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The results are telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, …