Law Commons^™

Issue Preclusion In Complex Litigation, Edward D. Cavanagh

Edward D. Cavanagh

Issue Preclusion In Complex Litigation Introduction In an era of multiparty, multijurisdictional, multidistrict litigation, federal cases have grown increasingly complex. As judges struggle to manage complicated cases, a new litigation paradigm has emerged. Rather than attempting to try all cases in one action, federal judges are now breaking the litigation down into smaller pieces, using "fast tracks" or "bellwether” cases, hoping that resolution of one or two cases will lead to settlement of the rest. Inevitably, because the cases involve identical fact issues and identical defendants, the doctrine of prior adjudication comes into play. This article identifies and analyzes significant …

Putting Aside The Rule Of Law Myth: Corruption And The Case For Juries In Emerging Democracies, Brent T. White

Brent T. White

Since the mid-1990’s, international donor agencies and development banks have invested millions to reform post-communist judiciaries in Central Asia and Europe. This investment has been driven by the belief that economic growth and democracy depend upon the “rule of law.” “Rule of law” in turn depends on a well-functioning and independent judiciary. After over a decade of rule of law reform, however, Central Asia is characterized by growing authoritarianism and judiciaries across both Central Asia and Eastern Europe are afflicted by rampant corruption. Both the rule of law and democracy have been elusive. Rule-of-law reform projects throughout the post-Soviet space …

The Deportation Of Migrant Workers From Israel: Theory, Policy And The Law, Yossi Dahan

Yossi Dahan

This essay proposes a theoretical framework for understanding the deportation of tens of thousands of migrant workers from Israel between the years 1995 and 2005. To this end, it examines Israeli deportation policy based, inter alia, on an empirical study of hundreds of deportation cases litigated in the courts between 2001 and 2005. This examination demonstrates that the deportation campaign was designed to achieve two parallel goals: to lower labor costs by creating a large class of indentured workers through what has been referred to as the “binding arrangement” (a neo-liberal goal) and to deny the grant of civic status …

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa Baird

Tonja Jacobi

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism of splitting existing majorities in future cases. Dissenting Justices can ‘signal’ to future litigants when this potential exists, to transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions where the dissenting Justice suggests that future cases ought to be framed in …

Ambiguity About Ambiguity: An Empirical Inquiry Into Legal Interpretation, Anup Malani

Anup Malani

Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the reader is uncertain about its meaning? Or is it a claim that readers, as a group, would disagree about what the text means (however certain each of them may be individually)? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity …

Factbound And Splitless: The Certiorari Process As A Barrier To Justice For Indian Tribes, Matthew L.M. Fletcher

Matthew L.M. Fletcher

The Supreme Court’s certiorari process does more than help the Court parse through thousands of uncertworthy claims – the Court’s application of the process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The negative impact of the certiorari process is all but invisible unless one studies a specific area of constitutional law. This study takes up that challenge. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in far more petitions filed by the opponents to …

Tort Damages And The New Science Of Happiness, Rick Swedloff, Peter H. Huang

Peter H. Huang

The happiness revolution is coming to legal scholarship. Based on empirical data about the how and why of positive emotions, legal scholars are beginning to suggest reforms to legal institutions. In this article we aim to redirect and slow down this revolution. One of their first targets of these legal hedonists is the jury system for tort damages. In several recent articles, scholars have concluded that early findings about hedonic adaptation and affective forecasting undermine tort awards for pain and suffering, mental anguish, loss of enjoyment of life, and other non-economic damages. In the shadow of a broader debate about …

Error Correction, Chad M. Oldfather

Chad M Oldfather

Under most accounts of appellate review, error correction stands with law declaration as the core institutional functions. Yet while a vast amount of scholarship addresses the process of judicial law creation, error correction has received little attention, and there appears to be a consensus that it is straightforward and settled. One goal of this article is to challenge this understanding. To be sure, the architecture of our judiciary reflects a worldview in which legal questions have correct answers and courts’ role is simply to find them. On that understanding there is nothing for appellate courts to do but correct error. …

Understanding Congress's Choice Of Delegate: An Empirical Analysis Of Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Margaret H. Lemos

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants—and even less about the consequences—of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

The Puzzle Of Judicial Education: The Case Of Chief Justice William De Grey, Emily Kadens

EMILY KADENS

Unlike civil law systems in which young lawyers choose between an attorney career track and a judicial one, Anglo-American legal systems mostly select their judges from the whole pool of bar members, regardless of the fact that the appointees may have had no experience with the court on which they are placed. Such a method of selection ensures that many judges come to the bench still needing to prepare themselves for their new positions. This problem is not a new one. At least by the seventeenth century, the specialization of legal practice in England meant that many neophyte judges had …

Reputation, Information And The Industrial Organization Of The Judiciary, Tom Ginsburg, Nuno Garoupa

Tom Ginsburg

The reputation of the judiciary, individually or as a whole, determines its status in any given society and its ability to compete effectively for resources. We analyze reputation and make three claims. First, reputation matters. Virtually every theory of judicial power is dependent, ultimately, on perceptions of judges, who famously lack the purse or the sword. Our second claim is that reputation can be divided into individual and collective components. Individual reputation provides information about individual performance whereas collective reputation provides information about the quality of the judiciary in general. We use the economics of team production to analyze the …

Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases, Tonja Jacobi, Matthew Sag

Tonja Jacobi

Empirical legal studies have become increasingly popular and influential, but empirical analysis is only as good as its tools. Until recently, no sophisticated measure of case outcomes existed. Jacobi (2009) developed three possible measures of case outcomes, based on three common theories of how Justices balance the trade-off between outcome optimization and coalition maximization. This Article extends Jacobi’s earlier theoretical work by empirically testing those competing measures of case outcomes.

The competing measures are initially assessed against a dataset of over 8000 Supreme Court cases decided between 1953 and 2006. The measures are also assessed in a more targeted fashion …

Teaching The “Portraits, Mosaics And Themes” Of The Federal Rules Of Evidence, Lee D. Schinasi

Lee D. Schinasi

Teaching the “Portraits, Mosaics and Themes” of The Federal Rules of Evidence: This article discusses an approach to teaching, learning, and applying the Federal Rules of Evidence – the “portraits and mosaics regime.” It is designed to accomplish four things: First, for professors new to teaching evidence, the “portraits and mosaics regime” is a macro level introductory overview of the statute and is aimed at providing perspective and insight. It introduces the statutes’s most significant concepts, how they interrelate, and how they can be applied. Second, it can be used as a teaching outline for new evidence professors approaching their …

Factbound And Splitless: Certiorari And Indian Law, Matthew L.M. Fletcher

Matthew L.M. Fletcher

The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration, but it is well known that the Court is far more likely to grant a cert petition when it questions the outcome below. This qualitative empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court’s certiorari process is neither objective nor neutral – and may prejudice certain classes of petitioners. Cert pool clerks applying the subjective certiorari criteria – such as whether there is a legitimate split in …

Chief William's Ghost: The Problematic Persistance Of The Duty To Sit, Jeffrey W. Stempel

Jeffrey W Stempel

In 1974, the duty to sit -- a doctrine positing that judges should recuse themselves only if the case for disqualification was compelling -- was abolished in federal courts. Then-Justice William Rehnquist's refusal to disqualify himself in Laird v. Tatum (1972) was a partial catalyst in this legal reform, which was consistent with the ABA position on the duty to sit, at least in what I term it's "pernicious" form. Notwithstanding the official abolition of the doctrine, it continues to be invoked, as does the problematic Rehnquist opinion defending his indefensible refusal to recuse in Laird v. Taturm. This article …

Decisional Independence In Opinion Writing: What A Judge May Not Do, Beth Shankle-Anderson

Beth Shankle-Anderson

This comment explores the concept of judicial independence. It is largely based on the recent Florida Supreme Court decision regarding Judge Michael E. Allen of the First District Court of Appeal. In its opinion, the Court shows restraint in curbing decisional independence by judges while expressing the need to curtail specific, but very limited, opinion writing by the judiciary.

Judicial Dissonance: An Analysis Of Judicial Activism, Matthew P. Cohen

Matthew P. Cohen

This comment will examine the debate over judicial activism with a particular focus on commentary spawned from the recent U.S. Supreme Court and California Supreme Court decisions, as well as Bush v. Gore . First, to lay the foundation of the comment, judicial impartiality and independence will be examined. This will bring to light the controlling norms of how judges are to ideally conduct themselves and render opinions in order to maintain public confidence in the judicial system. This comment will then discuss judicial activism and its history within jurisprudence. Transitioning from the history of judicial activism to a more …

The Decline And Fall Of The American Judicial Opinion: Back To The Future From The Roberts Court To Learned Hand, Jeffrey A. Van Detta

Jeffrey A. Van Detta

In September 2008, Adam Liptak of the N.Y. Times wrote in an article “American Exception: U.S. Court Now Guiding Fewer Nations”:

Judges around the world have long looked to the decisions of the United States Supreme Court for guidance, citing and often following them in hundreds of their own rulings since the Second World War.

But now American legal influence is waning. Even as a debate continues in the court over whether its decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American justices.

This is astonishing to many …

Race In The War On Drugs: The Social Consequences Of Presidential Rhetoric, Jeff L. Yates, Andrew Whitford

Jeff L Yates

One of the president’s main leadership tools for influencing the direction of American legal policy is public rhetoric. Numerous studies have examined the president’s use of the “bully pulpit” to lead policy by influencing Congress or public opinion, or by changing the behavior of public agencies. We argue that the president can use rhetoric to change the behavior of public agencies and that this can have important social consequences. We focus on the disproportionate impact of presidential rhetoric on different “target populations” in the context of the War on Drugs. Specifically, we observe that presidential rhetoric had a greater impact …

Judicial Diversity On State Supreme Courts, John D. Castiglione, Gregory L. Acquiaviva

John D. Castiglione

State courts of last resort are, in many ways, the primary expositors of law in the United States. Criminal law, contracts, family law, wills, trusts, and estates -- just to name a few -- fall within their purview. And yet, we know surprisingly little about just who sits on these courts -- state supreme court judges have been described as “perhaps the most important and least written about group within the judicial system” of the United States. Indeed, the last study on the characteristics and experiences of the state supreme court justices is almost fifteen years old. This Article presents …

Fact Suppression And The Subversion Of Capital Punishment: What Death Penalty Foes On The Supreme Court And In The Media Do Not Want The Public To Know, Lester --- Jackson

LESTER JACKSON

The U.S. Supreme Court and other courts, aided by the media in suppressing critical information about case facts and case law, have all but abolished capital punishment, turning what's left into a costly and agonizing farce. While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause. An egregious example was Roger Coleman, widely but with knowing falsity portrayed as a choir boy executed because heartless judges impatiently refused to hear evidence of his innocence. Going further, in myriad cases, death sentences are reversed or banned when guilt is not even disputed. This is achieved by focusing upon …

Guarding The Guardians: Judicial Councils And Judicial Independence, Tom Ginsburg, Nuno Garoupa

Tom Ginsburg

This Article uses comparative evidence to inform the ongoing debate about the selection and discipline of judges. In recent decades, many countries around the world have created judicial councils, institutions designed to maintain an appropriate balance between judicial independence and accountability. Our Article has two aims. First, we provide a theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between councils and quality. We also offer a positive explanation for …

Friction By Design: The Necessary Contest Of State Judicial Power And Legislative Policymaking, Michael Buenger

Michael Buenger

Courts in the United States have always played an important policymaking role through the exercise of judicial review. Much of our understanding of judicial power and judicial review is based on its exercise in the federal courts. Little attention has been paid to the intersection of judicial power and legislative policymaking at the state level. The tendency to examine judicial power through the lens of the federal bench miscasts the history of the American judiciary and fails to account for the unique role state courts perform as components of quasi-independent states. Even federal judicial review is rooted in state judicial …

The Intersection Of Judicial Attitudes And Litigant Selection Theories: Explaining U.S. Supreme Court Decision Making, Jeff L. Yates, Elizabeth Coggins

Jeff L Yates

Two prominent theories of legal decision making provide seemingly contradictory explanations for judicial outcomes. In political science, the Attitudinal Model suggests that judicial outcomes are driven by judges' sincere policy preferences -- judges bring their ideological inclinations to the decision making process and their case outcome choices largely reflect these policy preferences. In contrast, in the law and economics literature, Priest and Klein's well-known Selection Hypothesis posits that court outcomes are largely driven by the litigants' strategic choices in the selection of cases for formal dispute or adjudication -- forward thinking litigants settle cases where potential judicial outcomes are readily …

Zippo-Ing The Wrong Way: How The Internet Has Misdirected The Federal Courts In Their Personal Jurisdiction Analysis, Catherine Ross Dunham

Catherine Ross Dunham

ZIPPO-ING THE WRONG WAY: HOW THE INTERNET HAS MISDIRECTED THE FEDERAL COURTS IN THEIR PERSONAL JURISDICTION ANALYSIS

ABSTRACT

In 1997, the Federal District Court for the Western District of Pennsylvania evaluated one in a line of emerging personal jurisdiction cases that raised the question of whether Internet-based contacts with citizens of the forum state can alone establish the defendant purposefully established contacts with the forum state. In this unlikely watershed case, Zippo Mfg. Co. v. Zippo Dot Com, the District Court wrangled with the new concept of purposeful availment through electronic contact with the forum state. The court viewed Zippo …

Another Jackpot (In)Justice: Verdict Variability And Issue Preclusion In Mass Torts, Byron G. Stier

Byron G. Stier

If there are no prior inconsistent verdicts, non-mutual offensive issue preclusion generally allows a finding by a single jury to bar relitigation, in future cases, of the issue by the defendant who lost in the prior case. This approach, however, ignores the possibility that the first verdict delivered may have been an outlier if further verdicts were permitted to be delivered. In mass tort litigation, such a flawed approach may result in critical issues such as defect or negligence being resolved by only six jurors, whose potentially outlier verdict is then applied to resolve the cases of thousands, perhaps bankrupting …

Daubert V. Merrell Dow Pharmaceuticals And The Local Construction Of Reliability, Robert R. Robinson

Robert R Robinson

Scholars considering how expert testimony will fare under Daubert often apply the four dicta referenced by Justice Blackmun (testing, peer-review, error rate, and general acceptance) to determine whether such testimony will be admissible. In this article I critique this approach, contending that admissibility decisions cannot be adequately predicted by Daubert itself. Daubert has no clear legal rule for judges to apply, has no cognizable position on the degree of scrutiny expert testimony should face, and has no clear stance—even given the dicta—on what constitutes “good science.” When combined with the relative autonomy trial judges possess in making admissibility decisions, Daubert’s …

The Judicial Ethics Of Criminal Law Adjudication, Keith Swisher

Keith Swisher

Judges in the United States regularly (and often harshly) are disciplined for “bad” criminal law decisions. On a number of levels, it is baffling that this ethical “Rule” — punishing judges for errors of adjudication — has never been the subject of in-depth critical analysis. Thus, this Article is surprisingly the first scholarly work fully deconstructing the Rule (along with attendant considerations in criminal law adjudication) and addressing directly many of the tough questions that have been avoided or mistreated. This Article begins by examining an unexamined, “yet earthshaking” movement—that is, the modern invention of using judicial conduct commissions (“judge …

Writing: "It" Is A Start; Getting "It" Read Is The Goal., Timothy Blevins

Timothy D Blevins

The want or need to publish begins with writing the document. Once the decision is made to write, and a subject identified, the writer must focus on the reader. A one size fits all attitude toward writing can result in a negative impression with a publication's editors.

The Significance Of The Shift Toward As-Applied Challenges In Election Law, Joshua A. Douglas

Joshua A. Douglas

Last Term, the Supreme Court decided two election law cases that had significant implications for the ability of political actors to bring challenges to a state’s election regime. In Washington State Grange v. Washington State Republican Party and Crawford v. Marion County Election Board (the voter ID case), the Court rejected facial challenges to the laws and boldly stated that political actors may only challenge election laws as applied. In essence, this means that voters and others no longer can achieve pre-election, prospective relief, instead having to endure at least one election cycle under a law that might be invalid …