Law Commons^™

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

Tracy A. Thomas

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …

Adhesion Contracts And The Twenty First Century Consumer, Leon E. Trakman

Leon E Trakman Dean

Ecommerce has transformed the law of contract. Consumers are increasingly subject to myriads of conditions in shrink-wrap, box-wrap, click-wrap and browse-wrap contracts. Opening software wrapping or clicking “I agree” in a dialog box on a computer subjects the user to a series of onerous conditions that restrict end use and limit the supplier’s liability. These developments are counterbalance by the growth of new market-savvy classes of consumers who are willing and able to sue brand name producers in class and other actions. Faced with these Twenty First Century developments, courts struggle to find middle ground between regulating mass transactions in …

The All-Woman Texas Supreme Court: The History Behind A Very Brief Moment On The Bench, Alice G. Mcafee

Alice G. McAfee

On the surface, there is nothing particularly noteworthy about the case of Johnson v. Darr, and, in fact it was not the merits of the case that made the headlines. It was the makeup of the tribunal. Long before women in Texas were even granted the right to serve on juries and before any woman ever served as a judge on any of the lower Texas courts, the judges appointed to hear the case of Johnson v. Darr were all women. This was the first time a woman was appointed in any capacity to serve on the Texas judiciary and …

Preventive Tax Policy: Chief Justice Roger J. Traynor's Tax Philosophy, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Justice Roger J. Traynor is best known for his judicial innovations in the fields of conflict of laws, product liability, and civil procedure. However, few would trace Traynor’s roots to the field of tax law. In the late 1930’s Traynor collaborated with Stanley S. Surrey, our nation's foremost authorities on federal tax law, and together they called for a substantial transformation of existing mechanisms for settling tax disputes. At that crucial time in history, high marginal tax rates intensified the friction between taxpayers and the government, boosted litigation and multiplied the number of tax controversies. Traynor and Surrey developed the …

The Name Is The Same, But The Facts Have Been Changed To Protect The Attorneys: Strickland, Judicial Discretion, And Appellate Decision-Making, Greg O'Meara,

Greg O'Meara,

The gap between historical events and the way courts recount them in appellate decisions is highlighted by the differences in fact descriptions offered in the same case: Strickland v. Washington. The Supreme Court’s majority decision ignores or recasts facts found in the lower courts in this case. Paul Ricoeur, the leading philosopher of narrative, provides a framework that explains how legal facts are malleable and subject to distortion in his work on non-fiction narratives. He lays out instabilities inherent in any use of language and then broadens his inquiry to show that the transition from the oral to the written …

Originalism And The Problem Of Fundament Fairness, R. George Wright

R. George Wright Professor

Originalism is perhaps the most prominent theory of how to interpret the Constitution. Originalism, however, rests upon a process of constitutional drafting and ratification that systematically excluded important demographic groups. Originalism thus rests on a fundamental injustice. Crucially, this fundamental injustice is not confined to the past once the various excluded groups gain the franchise. Originalist theories remain crucially tainted and skewed, particularly with respect to constitutional questions on which originally excluded groups had interests diverging from those of non-excluded groups. The continuing effects of the fundamental unfairness of the constitutional drafting and ratifying process are explored through considering the …

The Domestic Legal Status Of Customary International Law In Comparative Perspective, David M. Ginn

David M Ginn

This essay considers the contested domestic legal status of customary international law. Two distinct positions have emerged in the debates about customary international law. The first position maintains that customary international law operates as a type of federal common law that is automatically incorporated into U.S. law and should be applied by courts in any appropriate case. The second position holds that only the political branches may incorporate customary international law into U.S. law, and that courts may only apply customary international law if a federal statute authorizes them to do so.

Drawing from the federal courts' experience with admiralty …

An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation & The Chevron Doctrine In Environmental Law, Jason J. Czarnezki

Jason J. Czarnezki

How do the United States Courts of Appeals decide environmental cases? More specifically, how do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. Yet, more can be learned about environmental jurisprudence outside the District of Columbia, the “other” environmental agencies, and the influence of legal interpretive approaches and legal doctrine—as …

Misguided Fairness? Regulating Arbitration By Statute: Empirical Evidence Of Declining Award Finality, Michael H. Leroy

Michael H LeRoy

The Federal Arbitration Act (FAA) created a national policy that promotes arbitration. Congress passed this law to end judicial hostility to arbitration. So far, no one has questioned this premise. My Article shows, however, that nineteenth century courts enforced arbitrator awards, even those that failed to conform to “technicalities and niceties.” Acting on the mistaken advice that judges excessively interfere with arbitration, Congress enacted a law that transfers oversight of arbitration from the judiciary to legislatures.

This change is affecting how court reviews arbitrator awards. I collected data in 426 federal and state court rulings in employment disputes from June …

License To Sue?, Lorelei Ritchie De Larena

Lorelei Ritchie de Larena

Courts, commentators and practitioners have for too long viewed intellectual property law as a discrete discipline, without putting it into the proper theoretical context of general jurisprudence. Intellectual property law cannot and must not exist on its own, outside the normative framework of overlapping legal institutions. Even within the rubric of intellectual property, courts have overlooked the potential for cross-applying relevant doctrines between patent, copyright, and trademark law. Certainly, when intellectual property disputes touch on other disciplines, such as civil procedure, contract, or tort law, courts have tended to overlook their synergies, focusing instead on only one of several important …

Liberal Justices' Reliance On Legislative History: Principle, Strategy, And The Scalia Effect, James J. Brudney

James J. Brudney

Abstract for “Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect”

This article conducts an in-depth examination of Supreme Court Justices’ reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.

First, the article presents a powerful case against the conventional wisdom that legislative history is a “politicized” resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions—if true—should find ample support in the majority opinions of liberal Supreme Court Justices …

Doctrine Formulation And Distrust, Toby J. Heytens

Toby J Heytens

Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts, but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases. Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts “comply” with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance. This Article argues that part of the answer lies in the Court’s ability to craft legal …

Three Faces Of Deference, Paul Horwitz

Paul Horwitz

Deference – the substitution by a decision maker of someone else’s judgment for its own – is a pervasive tool of constitutional doctrine. But although it has been studied at more abstract levels of jurisprudence and at very specific doctrinal levels, it has received surprisingly little general attention in constitutional scholarship. This Article aims to fill that gap.

This Article makes three primary contributions to the literature. First, it provides a careful examination of deference as a doctrinal tool in constitutional law, and offers a taxonomy of deference. In particular, it suggests that deference can best be understood as relying …

Where Lies The Emperor's Robe? An Inquiry Into The Problem Of Judicial Legitimacy, Gregory C. Pingree

Gregory C. Pingree

Gregory C. Pingree Article Abstract

Where Lies the Emperor’s Robe?

An Inquiry Into The Problem of Judicial Legitimacy

Today the American judiciary is, by any reasonable assessment, under attack. In politicians’ pious calls for religious retribution in response to controversial judicial decisions (e.g., in the Terri Schiavo case); in recent state ballot initiatives calling for “Jail-4 Judges” who don’t render decisions ideologically satisfactory to some groups; in the embattled and nearly intractable confirmation process for federal judges; and certainly in the wake of Bush v. Gore, which left many Americans convinced that the judiciary is not the impartial branch it …

The Perils Of Marriage As Transcendent Ontology: National Pride At Work V. Governor Of Michigan, William B. Turner

William B Turner

National Pride at Work v. Governor of Michigan provides a unique opportunity to watch as courts struggle to define “marriage.” This is not a suit seeking recognition of same-sex marriages. It presents the question of whether an amendment to the Michigan state constitution prohibiting recognition of same-sex marriages or any “union” that is “similar” to marriage also prohibits public employers in the state from conferring benefits on the same-sex partners of their employees. The trial and appeals courts came to exactly opposite conclusions, and their respective positions nicely demarcate the options in what promises to be an ongoing debate in …

Speak No Evil: Legal Ethics V. First Amendment, Terri R. Day

Terri R. Day

This paper explores the interplay between First Amendment rights of attorneys to criticize the judiciary and the application of ethical rules that discipline attorneys for statements that impugn the integrity of judges or impede the administration of justice. There is no U.S. Supreme Court precedent that gives guidance to state courts and lower federal courts in determining the limits of ethical rules to sanction attorney criticism in non-pending cases. In the absence of this guidance, courts have come to different conclusions in determining to what extent the First Amendment protects attorney speech in these circumstances. Because speech about judges and …

Deceptive Appearances: Judges, Cognitive Bias, And Dress Codes, Marybeth Herald

Marybeth Herald

Although it is no longer legal to deny women the right to work simply because they are women, an employer can still require women conform to gender-based appearance norms in order to keep their jobs. In some industries, lipstick, foundation, mascara, and blush remain essential components of a woman's professional uniform. In these industries, men are spared the obligation of cosmetic upkeep, because only women must don face-paint to appear comfortably recognizable to customers.

Why this differential dress-code is not considered discrimination on the basis of sex under Title VII is the mystery. The textual force of anti-discrimination law would …

Remitting The Remittitur, Mark G. Haug, Devon J. Steinmeyer

mark g haug

The purpose of this article is a review of the statistical analysis performed by Judge Jack B. Weinstein in Geressy v. Digital Equipment Corp. in determining whether damages awarded by a jury were excessive under New York’s statutory “material deviation” standard. Despite a concern that the sample population was materially skewed, Judge Weinstein based his analysis upon a normal (“bell”) curve and determined that the award was a material deviation. In this article, we examine the methodology of Judge Weinstein’s analysis and accept his invitation to make refinements that will improve the level of confidence that may be placed on …

Judges As Humans, Chad M. Oldfather

Chad M Oldfather

This is a review of Judges and Their Audiences: A Perspective on Judicial Behavior, by Lawrence Baum. Among the reasons this book is notable is that it draws heavily on social psychology in critiquing and suggesting modifications to the standard political science accounts of judicial behavior. In that regard it represents a substantial step toward the development of a comprehensive, cross-disciplinary picture of judicial behavior. In the review, I argue that Baum’s analysis is important not only for its own sake, but also because consideration of institutional reforms of the sort that have been and will continue to be proposed …

The Looming Collapse Of Restrictions On Judicial Campaign Speech, Nat S. Stern

Nat S Stern

In Republican Party of Minnesota v. White, the Supreme Court in 2002 struck down Minnesota’s ban on a judicial candidate’s “announc[ing] his or her views on disputed legal or political issues.” Since then, the American Bar Association and many states have revised their codes of judicial conduct to comply with White’s specific holding while seeking to retain other limitations on judicial campaign speech. Such efforts, however, ignore the broader implications of the Court’s opinion in White. Both the logic of that opinion and the ideological inclinations of the current Court point to the likely invalidation of major portions of these …

The Looming Collapse Of Restrictions On Judicial Campaign Speech, Nat S. Stern

Nat S Stern

In Republican Party of Minnesota v. White, the Supreme Court in 2002 struck down Minnesota’s ban on a judicial candidate’s “announc[ing] his or her views on disputed legal or political issues.” Since then, the American Bar Association and many states have revised their codes of judicial conduct to comply with White’s specific holding while seeking to retain other limitations on judicial campaign speech. Such efforts, however, ignore the broader implications of the Court’s opinion in White. Both the logic of that opinion and the ideological inclinations of the current Court point to the likely invalidation of major portions of these …

Happily Never After: When Final And Binding Arbitration Has No Fairy Tale Ending, Michael H. Leroy

Michael H LeRoy

We launched this empirical study 15 years after the Supreme Court decided Gilmer v. Interstate Johnson/Lane Corp., a key decision that enforced a mandatory arbitration agreement. Gilmer led to the widespread adoption of individual employment arbitration but provided courts no standards for reviewing these arbitration awards.

Until now, researchers have examined the fairness and legality of Gilmer agreements and other aspects of employment arbitration. Our timing is significant because employment arbitration has matured beyond the initial phase of pre-arbitration challenges to this forum. By now, a critical mass of individuals and their employers have been to arbitrations and appealed arbitrator …

Posner, Hayek, And The Economic Analysis Of Law, Todd J. Zywicki

Todd J. Zywicki

This Essay examines Richard Posner’s critique of F.A. Hayek’s legal theory and contrasts the two thinkers’ very different views of the nature of law, knowledge, and the rule of law. Posner conceives of law as a series of disparate rules and as purposive. He believes that a judge should examine an individual rule and come to a conclusion about whether the rule is the most efficient available. Hayek, on the other hand, conceives of law as a purpose-independent set of legal rules bound within a larger social order. Further, Posner, as a legal positivist, views law as an order consciously …

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …

Supreme Court Oral Advocacy: Does It Affect The Justices Decisions?, James F. Spriggs, Timothy R. Johnson, Wahlbeck J. Wahlbeck

James F. Spriggs II

Using newly discovered archival data, we test hypotheses that focus on whether the oral argument phase of the Supreme Court’s decision making process affects how justices view and, ultimately decide, cases they hear on the merits. Specifically, we utilize the oral argument notes taken by Justice Harry Blackmun while he sat on the bench to test three general hypotheses. First, we examine the determinants of quality oral argumentation, hypothesizing and showing that conventional indicators of lawyer experience and resource endowments correlate highly with how well an attorney does at orals. Second, we hypothesize that the quality of attorneys’ oral argumentation …

Writing, Cognition, And The Nature Of The Judicial Function, Chad Oldfather

Chad M Oldfather

Prior commentators, including many judges, have observed that writing provides an important discipline on the judicial decisionmaking process. Those commentators have uniformly assumed that the effect will always be positive – that is, that a decision rendered pursuant to a process that includes a written justification will always be better (however better is to be measured) than a decision unaccompanied by writing. According to this view, we should always, all things being equal, prefer a decision accompanied by an opinion to one without. All things are not equal, of course, and there are many situations in which the costs of …

Canons, The Plenary Power Doctrine And Immigration Law, Brian G. Slocum

Brian G. Slocum

There is a fundamental dichotomy in immigration law. On one hand, courts have consistently maintained that Congress has “plenary power” over immigration and reject most constitutional challenges on that basis. On the other hand, courts frequently use canons of statutory construction in an aggressive fashion to help interpret immigration statutes in favor of aliens. Immigration scholars have almost exclusively focused on the plenary power doctrine. They have either ignored the important role that canons have played in immigration law or have viewed canons as serving only a temporary and marginally legitimate role as substitutes for the lack of constitutional rights …

Judicial Policy - Making And The Peculiar Function Of Law, Richard Kay

Richard Kay

While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors – social values, legal rules and judging – comprise …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Linda L. Berger

No abstract provided.

Good Cause Is Bad Medicine For The New E-Discovery Rules, Henry S. Noyes

Henry S. Noyes

This Article takes a critical look at the e-discovery amendments to Rule 26(b)(2) that provide that electronically stored information that is “not reasonably accessible” shall be discoverable only if the requesting party can establish good cause. The intent of these amendments was to limit the cost and burden of discovery and to ensure that similarly situated litigants are treated similarly with respect to discovery of electronically stored information. I conclude that the e-discovery amendments to Rule 26(b)(2) will be ineffective because they increase judicial discretion—likely leading to disparate treatment of similarly situated litigants—while providing no new protection against the cost …