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Full-Text Articles in Law
Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim
Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim
BYU Law Review
Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is …
The Unconstitutional Assertion Of Inherent Powers In Multidistrict Litigations, Robert J. Pushaw, Charles Silver
The Unconstitutional Assertion Of Inherent Powers In Multidistrict Litigations, Robert J. Pushaw, Charles Silver
BYU Law Review
This Article examines the constitutional basis of the federal courts’ independent exercise of “inherent powers” (IPs) that Congress has not specifically authorized. Our analysis illuminates the grave constitutional problems raised by the freewheeling assertion of IPs in multidistrict litigations (MDLs), which comprise over half of all pending federal cases.
The Supreme Court has rhetorically acknowledged that the Constitution allows resort to IPs only when doing so is absolutely necessary to enable Article III courts to exercise their “judicial power,” but has then sustained virtually all exercises of IP, whether essential or not. The Court’s excessive deference has emboldened trial judges …
Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly
Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly
BYU Law Review
Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of …
Courts Beyond Judging, Michael C. Pollack
Courts Beyond Judging, Michael C. Pollack
BYU Law Review
Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …
Reporting Certainty, James A. Macleod
Reporting Certainty, James A. Macleod
BYU Law Review
Legal theorists, judges, and legal writing instructors persistently decry the assertions of certainty—”obviously X,” “undoubtedly Y,” etc.—that litter judicial opinions. According to the conventional view, the rhetoric of certainty that these assertions epitomize is disingenuous. It also reflects, and even encourages, poor judicial decision-making. And as if that were not enough, it is so unpersuasive that it is counter-persuasive: it signals uncertainty, nonobviousness, etc.—the exact opposite of what its author intends. Judges, for these and other reasons, should abstain from needless assertions of certainty and the myopic thinking they evince. That much is certain.
Yet the rhetoric of certainty persists. …
Religion In Judicial Decision-Making: An Empirical Analysis, René Reyes, Jessica W. Reyes
Religion In Judicial Decision-Making: An Empirical Analysis, René Reyes, Jessica W. Reyes
BYU Law Review
No abstract provided.
The Case Of The Exemption Claimants: Religion, Conscience, And Identity, Steven D. Smith
The Case Of The Exemption Claimants: Religion, Conscience, And Identity, Steven D. Smith
BYU Law Review
No abstract provided.
"To The Person": Rfra's Blueprint For A Sustainable Exemption Regime, Tanner Bean
"To The Person": Rfra's Blueprint For A Sustainable Exemption Regime, Tanner Bean
BYU Law Review
No abstract provided.
Out Of Many, One: Discovering The Shared Statutory Speech Community Through Corpus Linguistics, Justin A. Miller
Out Of Many, One: Discovering The Shared Statutory Speech Community Through Corpus Linguistics, Justin A. Miller
BYU Law Review
No abstract provided.
Why Judicial Deference To Administrative Fact-Finding Is Unconstitutional, John Gibbons
Why Judicial Deference To Administrative Fact-Finding Is Unconstitutional, John Gibbons
BYU Law Review
No abstract provided.
Posner, Blackstone, And Prior Restraints On Speech, Ashutosh Bhagwat
Posner, Blackstone, And Prior Restraints On Speech, Ashutosh Bhagwat
BYU Law Review
Judge Richard Posner recently asserted that the original understanding of the Free Speech Clause of the First Amendment was to prohibit “censorship”—meaning prior restraints—but not subsequent punishments. Posner was following in the footsteps of many other eminent jurists including Oliver Wendell Holmes, Jr., Joseph Story, James Wilson, and ultimately William Blackstone.
The problem is, this claim is simply wrong. Firstly, it misquotes Blackstone. Blackstone said that the liberty of the press meant only freedom from prior restraints; he never discussed speech. When one does examine the Speech Clause, it becomes quite clear that its protections cannot be limited to freedom …
The Justices And News Judgment: The Supreme Court As News Editor, Amy Gajda
The Justices And News Judgment: The Supreme Court As News Editor, Amy Gajda
BYU Law Review
No abstract provided.
Making Appearances Matter: Recusal And The Appearance Of Bias, Dmitry Bam
Making Appearances Matter: Recusal And The Appearance Of Bias, Dmitry Bam
BYU Law Review
No abstract provided.
The Dictionary Is Not A Fortress: Definitional Fallacies And A Corpus-Based Approach To Plain Meaning, Stephen C. Mouritsen
The Dictionary Is Not A Fortress: Definitional Fallacies And A Corpus-Based Approach To Plain Meaning, Stephen C. Mouritsen
BYU Law Review
No abstract provided.
Catholic League For Religious And Civil Rights V. City Of San Francisco: How The Ninth Circuit Abandoned Judicial Neutrality To Strike A Blow At Religion , Jonathan W. Heaton
Catholic League For Religious And Civil Rights V. City Of San Francisco: How The Ninth Circuit Abandoned Judicial Neutrality To Strike A Blow At Religion , Jonathan W. Heaton
BYU Law Review
No abstract provided.
Talking Originalism , Andrew B. Coan
Zero-Sum Judicial Elections: Balancing Free Speech And Impartiality Through Recusal Reform, David K. Stott
Zero-Sum Judicial Elections: Balancing Free Speech And Impartiality Through Recusal Reform, David K. Stott
BYU Law Review
No abstract provided.
A Failed Coup On The Judicial Monarchy (Review Of God And Man In The Law, By Robert Lowry Clinton), David D. Garner
A Failed Coup On The Judicial Monarchy (Review Of God And Man In The Law, By Robert Lowry Clinton), David D. Garner
BYU Law Review
No abstract provided.
Humenansky V. Regents Of The University Of Minnesota: Questioning Congressional Intent And Authority To Abrogate Eleventh Amendment Immunity With The Adea, Eric Hunter
BYU Law Review
No abstract provided.
Intrinsic Limits Of Congress' Power Regarding The Judicial Branch, David E. Engdahl
Intrinsic Limits Of Congress' Power Regarding The Judicial Branch, David E. Engdahl
BYU Law Review
No abstract provided.
Extending The Due Process Clause To Prevent A Previously Recused Judge From Later Attempting To Affect The Case From Which He Was Recused, S. Matthew Cook
Extending The Due Process Clause To Prevent A Previously Recused Judge From Later Attempting To Affect The Case From Which He Was Recused, S. Matthew Cook
BYU Law Review
No abstract provided.
On Greatness And Constitutional Vision: Justice Byron R. White, Rex E. Lee, Richard G. Wilkins
On Greatness And Constitutional Vision: Justice Byron R. White, Rex E. Lee, Richard G. Wilkins
BYU Law Review
No abstract provided.
Justice Byron White And The Argument That The Greater Includes The Lesser, Michael Herz
Justice Byron White And The Argument That The Greater Includes The Lesser, Michael Herz
BYU Law Review
No abstract provided.
Shirt-Tales: Clerking For Byron White, Kevin J. Worthen
Shirt-Tales: Clerking For Byron White, Kevin J. Worthen
BYU Law Review
In honor of Byron White's 25th anniversary as a Supreme Court Justice, his then-current and former clerks presented him with a T-shirt. Emblazoned on the shirt were short, usually one-line, statements expressing the clerks’ thoughts about the Justice, his career, and their experiences as clerks. The melange of brief messages conveys much about the relationship between Justice White and those who were privileged to work as his clerks. It also provides meaningful insights into the clerkship experience, as well as into the nature of the man who defined the experience by the force of his personality.
Cheers! A Tribute To Justice Byron R. White, John Paul Stevens
Cheers! A Tribute To Justice Byron R. White, John Paul Stevens
BYU Law Review
No abstract provided.
Realism, Rationality And Justice Byron White: Three Easy Cases, Allan Ides
Realism, Rationality And Justice Byron White: Three Easy Cases, Allan Ides
BYU Law Review
No abstract provided.
And He Can Take A Hit Too: Justice White's Utah Connection, Robert Leede Davis
And He Can Take A Hit Too: Justice White's Utah Connection, Robert Leede Davis
BYU Law Review
No abstract provided.
Justice Byron R. White: A Modern Federalist And A New Deal Liberal, William E. Nelson
Justice Byron R. White: A Modern Federalist And A New Deal Liberal, William E. Nelson
BYU Law Review
No abstract provided.
Using History To Reshape The Discussion Of Judicial Review, Shawn Gunnarson
Using History To Reshape The Discussion Of Judicial Review, Shawn Gunnarson
BYU Law Review
No abstract provided.