Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Oklahoma College of Law (4)
- Washington and Lee University School of Law (4)
- Touro University Jacob D. Fuchsberg Law Center (3)
- University of Michigan Law School (3)
- Duke Law (2)
-
- University of Arkansas at Little Rock William H. Bowen School of Law (2)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
- Golden Gate University School of Law (1)
- Maurer School of Law: Indiana University (1)
- New York Law School (1)
- Northwestern Pritzker School of Law (1)
- Selected Works (1)
- St. John's University School of Law (1)
- St. Mary's University (1)
- University of Baltimore Law (1)
- University of Georgia School of Law (1)
- Vanderbilt University Law School (1)
- Publication Year
- Publication
-
- Oklahoma Law Review (4)
- Scholarly Works (3)
- Faculty Scholarship (2)
- Michigan Law Review (2)
- Scholarly Articles (2)
-
- The Journal of Appellate Practice and Process (2)
- Touro Law Review (2)
- Washington and Lee Law Review (2)
- All Faculty Scholarship (1)
- Articles (1)
- Brian C. Murchison (1)
- Faculty Publications (1)
- Faculty Working Papers (1)
- Georgia Journal of International & Comparative Law (1)
- Golden Gate University Law Review (1)
- Indiana Journal of Global Legal Studies (1)
- NYLS Law Review (1)
- St. Mary's Law Journal (1)
- Vanderbilt Journal of Transnational Law (1)
- Publication Type
Articles 1 - 30 of 30
Full-Text Articles in Law
The Well-Intentioned Purpose But Weak Epistemological Foundation Of Originalism, George C. Christie
The Well-Intentioned Purpose But Weak Epistemological Foundation Of Originalism, George C. Christie
Faculty Scholarship
The attraction of an originalist approach to constitutional interpretation is understandable. It is maintained that only that method can provide the judicial objectivity and certainty that constitutional adjudication requires. They claim that the traditional common-law evolutionary approach leads Supreme Court Justices to succumb to the temptation to fill in gaps in constitutional law and thereby ignore that major expansions in constitutional meaning and should be made in the way the Founders envisioned, namely by amendment of the Constitution. However difficult or impractical that process may be, it is the only way to avoid the politicization of the Court. Whether that …
Legal Sets, Jeremy N. Sheff
Legal Sets, Jeremy N. Sheff
Faculty Publications
In this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases and help organize the available options for resolving such cases …
Export Controls - A Private Cause Of Action Under The Export Administration Act Of 1979, Wilbur Owens
Export Controls - A Private Cause Of Action Under The Export Administration Act Of 1979, Wilbur Owens
Georgia Journal of International & Comparative Law
No abstract provided.
Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison
Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison
Brian C. Murchison
Not available.
The Judicial Reform In China: The Status Quo And Future Directions, Ji Weidong
The Judicial Reform In China: The Status Quo And Future Directions, Ji Weidong
Indiana Journal of Global Legal Studies
This article shows that Chinese adjudication is in a dilemma: on one hand, the judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; …
The Islamic Rule Of Lenity: Judicial Discretion And Legal Canons, Intisar A. Rabb
The Islamic Rule Of Lenity: Judicial Discretion And Legal Canons, Intisar A. Rabb
Vanderbilt Journal of Transnational Law
This Article explores an area of close parallel between legal doctrines in the contexts of Islamic law and American legal theory. In criminal law, both traditions espouse a type of "rule of lenity" that curious common law rule that instructs judges not to impose criminal sanctions in cases of doubt. The rule is curious because criminal law is a peremptory expression of legislative will. However, the rule of lenity would seem to encourage courts to disregard one of the most fundamental principles of Islamic and American legislation and adjudication: judicial deference to legislative supremacy. In the Islamic context, such a …
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Faculty Scholarship
No abstract provided.
People V. Orin: Penal Code Section 1385 Dismissals And The Effectuation Of Plea Bargains, Robert N. Weaver
People V. Orin: Penal Code Section 1385 Dismissals And The Effectuation Of Plea Bargains, Robert N. Weaver
Golden Gate University Law Review
No abstract provided.
Judicial Legislation, Anthony D'Amato
Judicial Legislation, Anthony D'Amato
Faculty Working Papers
My argument will be that it is unjust in the broadest view of our legal system for judges to legislate, even if they confine their legislation to the narrowest limits in the closest of cases. To the extent that my argument is successful in diminishing the judicial legislation position, it would tend to serve to corroborate Dworkin's rights thesis.
United States V. Leveto, Jennifer Steward
The Trial Judge's Equitable Discretion Following Ebay V. Mercexchange, Doug Rendleman
The Trial Judge's Equitable Discretion Following Ebay V. Mercexchange, Doug Rendleman
Scholarly Articles
None available.
The Decision Maker Matters: An Empirical Examination Of The Way The Role Of The Judge And The Jury Influence Death Penalty Decision-Making, William J. Bowers, Wanda D. Foglia, Jean E. Giles, Michael E. Antonio
The Decision Maker Matters: An Empirical Examination Of The Way The Role Of The Judge And The Jury Influence Death Penalty Decision-Making, William J. Bowers, Wanda D. Foglia, Jean E. Giles, Michael E. Antonio
Washington and Lee Law Review
No abstract provided.
Judicial Discretion To Condition, Thomas O. Main
Judicial Discretion To Condition, Thomas O. Main
Scholarly Works
No abstract provided.
Saving Section 5: Lessons From Consent Decrees And Ex Parte Young, Pratik A. Shah
Saving Section 5: Lessons From Consent Decrees And Ex Parte Young, Pratik A. Shah
Washington and Lee Law Review
No abstract provided.
Second Annual Henry Lecture: Judicial Discretion In Statutory Interpretation, Frank H. Easterbrook
Second Annual Henry Lecture: Judicial Discretion In Statutory Interpretation, Frank H. Easterbrook
Oklahoma Law Review
No abstract provided.
Reply To Judge Easterbrook: Regarding History As A Judicial Duty, Harry F. Tepker
Reply To Judge Easterbrook: Regarding History As A Judicial Duty, Harry F. Tepker
Oklahoma Law Review
No abstract provided.
Reply To Judge Easterbrook: The Unsupported Delegation Of Conflict Adjudication In Erisa Benefit Claims Under The Guise Of Judicial Deference, Donald T. Bogan
Reply To Judge Easterbrook: The Unsupported Delegation Of Conflict Adjudication In Erisa Benefit Claims Under The Guise Of Judicial Deference, Donald T. Bogan
Oklahoma Law Review
No abstract provided.
Reply To Judge Easterbrook: Judicial Discretion And Statutory Interpretation, Steven J. Cleveland
Reply To Judge Easterbrook: Judicial Discretion And Statutory Interpretation, Steven J. Cleveland
Oklahoma Law Review
No abstract provided.
Traditional Equity And Contemporary Procedure, Thomas O. Main
Traditional Equity And Contemporary Procedure, Thomas O. Main
Scholarly Works
This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …
Taking Its Toll: Partisan Judging And Judicial Review, Jeff Broadwater
Taking Its Toll: Partisan Judging And Judicial Review, Jeff Broadwater
The Journal of Appellate Practice and Process
No abstract provided.
Standards Of Review: Judicial Review Of Discretionary Decisionmaking, Martha S. Davis
Standards Of Review: Judicial Review Of Discretionary Decisionmaking, Martha S. Davis
The Journal of Appellate Practice and Process
The applicable standard of review determines how much deference an appellate court gives a lower court’s decision. Discretionary decisions are review under the “abuse of discretion” standard where the process the lower court used to reach its decision is scrutinized. Three scholars attempts to define this standard are first analyzed followed by cases that have molded the standard. Advice to practitioners concludes the article.
Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison
Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison
Scholarly Articles
Not available.
Anglo-American Jurisprudence And Latin America, John Linarelli
Anglo-American Jurisprudence And Latin America, John Linarelli
Scholarly Works
No abstract provided.
The Tension Between Rules And Discretion In Family Law: A Report And Reflection, Carl E. Schneider
The Tension Between Rules And Discretion In Family Law: A Report And Reflection, Carl E. Schneider
Articles
The history of law is many things. But one of them is the story of an unremitting struggle between rules and discretion. The tension between these two approaches to legal problems continues to pervade and perplex the law today. Perhaps nowhere is that tension more pronounced and more troubling than in family law. It is probably impossible to practice family law without wrestling with the imponderable choice between rules and discretion. Consider, for example, how many areas of family law are now being fought over in-just those terms. For decades we have lived with an abundantly discretionary way of resolving …
An Empirical Study Of Kent Style Juvenile Transfers To Criminal Court., Robert O. Dawson
An Empirical Study Of Kent Style Juvenile Transfers To Criminal Court., Robert O. Dawson
St. Mary's Law Journal
Kent v. United States was the first in a series of majority decisions by the United States Supreme Court which fixed constitutional minimum requirements for the juvenile justice system. This decision follows case law establishing the adjudication phase of the process: a right to notice of charges, to confrontation and cross-examination of witnesses, not to be compelled to incriminate oneself, and to counsel. Shortly afterwards, the Court established the constitutional requirement the government must prove its charges in juvenile court beyond a reasonable doubt. Finally, the Court determined the Double Jeopardy Clause of the Constitution applies in the juvenile process. …
Eroding The Myth Of Discretionary Justice In Family Law: The Child Support Experiment, Jane C. Murphy
Eroding The Myth Of Discretionary Justice In Family Law: The Child Support Experiment, Jane C. Murphy
All Faculty Scholarship
Reliance on judicial discretion to resolve disputes is one of the most fundamental characteristics of the American legal system. Nowhere have judges exercised more unfettered discretion than in family law. Judicial discretion in this area, however, is not without its critics. In this Article Professor Jane Murphy recommends limiting the use of judicial discretion in family law matters. Professor Murphy argues that the lack of predictability which flows from discretionary decisions undermines our confidence in the equity of decisions and encourages protracted litigation.
Professor Murphy reviews the developing consensus that fixed rules are necessary to guide judges' discretion in divorce …
Judicial Discretion: Is One More Of A Good Thing Too Much?, David B. Sentelle
Judicial Discretion: Is One More Of A Good Thing Too Much?, David B. Sentelle
Michigan Law Review
A Review of Judicial Discretion by Aharon Barak
Retrospective Justification, Jeffrey Malkan
Where To Draw The Guideline: Factoring The Fruits Of Illegal Searches Into Sentencing Guidelines Calculations, Cheryl G. Bader, David S. Douglas
Where To Draw The Guideline: Factoring The Fruits Of Illegal Searches Into Sentencing Guidelines Calculations, Cheryl G. Bader, David S. Douglas
Touro Law Review
No abstract provided.
"Overruling" Opinions In The Supreme Court, Albert P. Blaustein, Andrew H. Field
"Overruling" Opinions In The Supreme Court, Albert P. Blaustein, Andrew H. Field
Michigan Law Review
Despite its vaunted reputation for rectitude, the United States Supreme Court has been the first to deny its own judicial infallibility. For in at least ninety decisions, dating as far back as 1810 and as recent as its 1956 Term, the Supreme Court has made public confession of error by overruling its previous determinations.
This is a study of those ninety decisions-a statistical accounting of overruling cases and cases overruled, and a listing of the judges who agreed and disagreed with what was said and done. And this is a study of the "right to be wrong" -an inquiry into …