Law Commons^™

Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass

Faculty Scholarship

The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the …

Presidential Removal: The Marbury Problem And The Madison Solutions, Jed Handelsman Shugerman

Faculty Scholarship

Marbury v. Madison is not just a puzzling judicial review precedent. It is also a puzzle about presidential removal. Why was it not taken for granted that Jefferson, Secretary of State Madison, or another executive official could simply fire Marbury? Why did Chief Justice Marshall also conclude in the unanimous decision that Marbury could not be removed?

This symposium essay summarizes recent research (especially by Jane Manners and Lev Menand) to solve this problem: an office appointed to a term of years restricted removal in the Anglo-American tradition, demonstrating that presidential removal was not a default rule. This essay also …

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

Case Law, Adam N. Steinman

Faculty Scholarship

Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.

This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a …

Submerged Precedent, Elizabeth Mccuskey

Faculty Scholarship

Numerous studies have pointed to the skewed picture of trial courts' workload, management, and disposition of cases that exists from examining Westlaw and Lexis opinions alone, akin to navigating the iceberg from its tip.⁴ But submerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions-putative precedent and not mere evidence of decision-making-that exist only on dockets. Submerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself not just trial courts' administration of it.

The existence of a submerged body …

Fit, Justification, And Fidelity In Constitutional Interpretation, James E. Fleming

Faculty Scholarship

Ronald Dworkin famously argued that the best interpretation of a Constitution should both fit and justify the legal materials, for example, the text, original meaning, and precedents. In his recent book, Against Obligation (Harvard University Press, 2012), Abner S. Greene provocatively and creatively bucks the tendencies of constitutional theorists to profess fidelity with the past in constitutional interpretation. He rejects originalist understandings of obligation to follow original meaning in interpreting the Constitution. And indeed he rejects interpretive obligation to follow precedent. In this Essay I focus on Greene’s arguments against interpretive obligation to the past, in particular, his argument that …

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Faculty Scholarship

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman

Faculty Scholarship

Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions—Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal—turn this conventional …

Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley

Faculty Scholarship

The determination that sexual harassment constituted “discrimination based on sex” under Title VII was first made by the lower federal courts, not Congress. Drawing from the literature on policy diffusion, this article examines the adoption of hostile work environment standards across the U.S. Courts of Appeals in the absence of controlling Supreme Court precedent. The results bolster recent findings about the influence of female judges on their male colleagues and suggest that in addition to siding with female plaintiffs, female judges also helped to shape legal rules that promoted gender equality in the workplace.

Stipulating The Law, Gary S. Lawson

Faculty Scholarship

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the President. Four Justices strongly challenged the majority’s willingness to accept what amounts to a stipulation by the parties on a controlling issue of law. As a general matter, the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to …

Danforth, Retroactivity, And Federalism, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

From Langdell To Law And Economics: Two Conceptions Of Stare Decisis In Contract Law And Theory, Jody S. Kraus

Faculty Scholarship

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In …

Mostly Unconstitutional: The Case Against Precedent Revisited, Gary S. Lawson

Faculty Scholarship

In Part I of this Article, the author briefly recaps the argument against precedent that the author sketched in The Constitutional Case Against Precedent. Although the author’s purpose here is to refine that argument, the author still believes that the original argument is right in most particulars, and it still functions as a prima facie case against the use of precedent in constitutional interpretation. In Part II, the author surveys different possible grounds for the practice of precedent. In Part III, the author dismisses the possibility that the Constitution or some other controlling legal source affirmatively commands the use of …

Controlling Precedent: Congressional Regulation Of Judicial Decision-Making, Gary S. Lawson

Faculty Scholarship

Modern federal courts scholars have been fascinated by the question of Congress' power to control the jurisdiction of the federal courts.' This fascination is not difficult to explain: the question is theoretically profound and raises fundamental issues about the roles of Congress and the federal courts in the constitutional order.2 As a practical matter, however, the question has proven to be of limited significance. Despite a recent spate of legislation restricting access to courts by prisoners and immigrants,3 people talk about wholesale jurisdiction-stripping far more than they actually do it.

The Constitutional Case Against Precedent, Gary S. Lawson

Faculty Scholarship

A recent, and characteristically illuminating, article by Professor Henry Monaghan confidently announces that "[p] recedent is, of course, part of our understanding of what law is."1 As a descriptive matter, Professor Monaghan is entirely correct. Legal analysis-by lawyers, courts, and academics-typically begins and ends with precedent. Law students are meticulously trained in the art of reading, applying, and distinguishing cases. Court pinions, including Supreme Court opinions, on constitutional matters frequently consist entirely of discussions of past decisions, without so much as a reference to the Constitution itself.' Even in this era of law-and-metatheory, case analysis is still the mainstay of …