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Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel May 2019

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are ...


Show Me The Money: An Empirical Analysis Of Interest Group Opposition To Federal Courts Of Appeals Nominees, Donald E. Campbell, Marcus Hendershot Jan 2019

Show Me The Money: An Empirical Analysis Of Interest Group Opposition To Federal Courts Of Appeals Nominees, Donald E. Campbell, Marcus Hendershot

Journal Articles

Contemporary views of the federal judicial appointment process are grounded in themes of obstruction and gridlock. Within this environment, interest groups find fertile ground to target, and sometimes successfully oppose, judicial nominees that once automatically moved through the appointment process and ended in confirmation. While interest group involvement and influence is an accepted fact, much less is known about the efficacy of these groups in carrying out their objective of correctly identifying ideological outlier nominees. This article asks the question: Do interest groups correctly identify and target nominees who are ideological outliers? The article implements a research design that evaluates ...


Active Judicial Governance, James A. Gardner Sep 2018

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.


Democratizing Interpretation, Anya Bernstein Jan 2018

Democratizing Interpretation, Anya Bernstein

Journal Articles

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge.

The outsourcing approaches I describe show a disconnect between the questions judges pose ...


Opting Out Of Discovery, Jay Tidmarsh Jan 2018

Opting Out Of Discovery, Jay Tidmarsh

Journal Articles

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in ...


Before Interpretation, Anya Bernstein Apr 2017

Before Interpretation, Anya Bernstein

Journal Articles

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to ...


The Missing Justice In Coleman V. Miller, Barry Cushman Jan 2017

The Missing Justice In Coleman V. Miller, Barry Cushman

Journal Articles

All nine of the sitting justices took part in the 1939 case of Coleman v. Miller, which concerned whether the Kansas legislature had ratified the pending Child Labor Amendment. One of the issues in the case was decided by a vote of 5-4, while another was resolved by a vote of 7-2. With respect to a third issue, however, Chief Justice Charles Evans Hughes reported that it presented “a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.”

Scholars understandably have been puzzled by how a decision in which a full ...


Inside The 'Constitutional Revolution' Of 1937, Barry Cushman Jan 2017

Inside The 'Constitutional Revolution' Of 1937, Barry Cushman

Journal Articles

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number ...


Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jan 2017

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia

Journal Articles

In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued ...


Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray Jan 2017

Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray

Journal Articles

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts.

This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor ...


Inside The Taft Court: Lessons From The Docket Books, Barry Cushman Jan 2016

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only ...


On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen Jan 2016

On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen

Journal Articles

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or ...


Differentiating Deference, Anya Bernstein Jan 2016

Differentiating Deference, Anya Bernstein

Journal Articles

When an administrative agency’s interpretation of an ambiguous statutory term is challenged in court, the Chevron doctrine instructs judges to evaluate whether it is reasonable. But how does a court know reasonableness when it sees it? Here, I first show that reasonableness review is more complex than it might seem. Contrary to common images, for instance, courts do not determine a range of reasonable interpretations; and that is a good thing, because they are not competent to do so. Moreover, because traditional statutory interpretation approaches presume the existence of one correct meaning for a given word, they are not ...


The Call And The Response: The Call, The 1991 Open Letter From Federal Judge A. Leon Higginbotham, Jr., And The 25 Years Of Response From Justice Clarence Thomas, Angela Mae Kupenda Jan 2016

The Call And The Response: The Call, The 1991 Open Letter From Federal Judge A. Leon Higginbotham, Jr., And The 25 Years Of Response From Justice Clarence Thomas, Angela Mae Kupenda

Journal Articles

In 1991, Clarence Thomas was confirmed as the first Black radical conservative Justice, in spite of opposition including credible allegations of sexual harassment lodged against him. His unprecedented confirmation evoked unprecedented reactions, including written ones. One such written action is the basis for this article. Our nation is now fast approaching the anniversary, not only of Thomas’ 25 ceremonial years on the Court, but also of almost 25 years since an unprecedented, published, pointed, open, publicly and widely circulated correspondence was sent to the newly confirmed Justice Thomas by another Black judge. Esteemed Federal Judge A. Leon Higginbotham, Jr., penned ...


The Hughes Court Docket Books: The Early Terms, 1929-1933, Barry Cushman Jul 2015

The Hughes Court Docket Books: The Early Terms, 1929-1933, Barry Cushman

Journal Articles

For many years, the docket books kept by a number of the Hughes Court Justices have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the docket books that the Curator’s Office holds for the early Hughes Court, comprising the 1929-1933 Terms. Only one ...


Judicial Review And Non-Enforcement At The Founding, Matthew Steilen Jan 2014

Judicial Review And Non-Enforcement At The Founding, Matthew Steilen

Journal Articles

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this ...


Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua Jan 2014

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially ...


The Confident Court, Jennifer Mason Mcaward Jan 2013

The Confident Court, Jennifer Mason Mcaward

Journal Articles

Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court ...


The Sky Is Falling (Again): Evaluating The Current Funding Crisis In The Judiciary, Donald E. Campbell Jan 2013

The Sky Is Falling (Again): Evaluating The Current Funding Crisis In The Judiciary, Donald E. Campbell

Journal Articles

This Article will consider the current crisis in a broad historical context. This larger narrative can provide a helpful perspective in the current debate. It offers a glimpse into how we came to the current system and allows us to question our assumptions regarding the way the system currently works. Historical context is an important (and under-discussed) aspect of this crisis. As the leaders of the bench and bar come together to evaluate changes to the current system, the discussion should begin with understanding how the system evolved to where it is now and with appreciating the fact that the ...


Pardon Me - The Need For A Fair And Impartial Judiciary, Jim Rosenblatt Jul 2012

Pardon Me - The Need For A Fair And Impartial Judiciary, Jim Rosenblatt

Journal Articles

The pardons issued by former Mississippi Governor Haley Barbour shortly before he left office created a swirl of controversy in Mississippi that played out in the national media. The Governor's Mansion, the Hinds County Courthouse, the State Capitol, and the Gartin Justice Building were frequent backdrops for media stories that took place over a two-month period reporting on "Pardongate." Several elements combined to make these pardons controversial and to make the issue such good fodder for the media.


Response: Catch-All Doctrinalism And Judicial Desire, Anya Bernstein Jan 2012

Response: Catch-All Doctrinalism And Judicial Desire, Anya Bernstein

Journal Articles

This brief piece responds to Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 University of Pennsylvania Law Review 509 (2013).

Vázquez and Vladeck's provocative article suggests that courts dismiss Bivens claims because judges believe that “extending” Bivens into any “new context” instantiates disfavored judicial lawmaking. Focusing on Bivens’s peculiar place in federalism and federal law, Vázquez and Vladeck demonstrate that the logic of courts’ own legal interpretations suggests expanding Bivens remedies, yet courts paradoxically choose to narrow them instead. Why, and how, does that happen? Courts claim ...


To Advice And Consentdelay: The Role Of Interest Groups In The Confirmation Of Judges To The Federal Courts Of Appeal, Donald E. Campbell Jan 2012

To Advice And Consentdelay: The Role Of Interest Groups In The Confirmation Of Judges To The Federal Courts Of Appeal, Donald E. Campbell

Journal Articles

Political and partisan battles over nominees to the federal courts of appeal have reached unprecedented levels. This article considers the reasons for this change in the process. Using evidence from law and political science, this article proposes that current confirmation struggles are greatly influenced by increased involvement of interest groups in the process. The article tests the role of interest groups through an in-depth examination of George W Bush's nomination of Leslie H. Southwick to the Fifth Circuit Court of Appeals. Utilizing the Southwick case study, the article provides evidence of how interest groups impact the confirmation process by ...


Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew Steilen Jan 2010

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew Steilen

Journal Articles

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the ...


New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner Jan 2010

New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner

Journal Articles

The practice of selecting judges by popular election, commonplace among the American states, has recently come in for a good deal of criticism, much of it well-founded. But if popular election of judges is a bad method of judicial selection, what ought to replace it? Opponents of judicial election typically treat gubernatorial appointment as self-evidently better. New York’s experience with gubernatorial appointment to its highest court, the Court of Appeals, suggests that greater caution is in order. Although New York’s current method of selecting Court of Appeals judges was designed to be wide open and based entirely on ...


"But For The Grace Of God There Go I": Justice Thomas And The Little Guy, Nicole Stelle Garnett Jan 2009

"But For The Grace Of God There Go I": Justice Thomas And The Little Guy, Nicole Stelle Garnett

Journal Articles

This Essay, prepared for a NYU Journal of Law and Liberty symposium on “The Unknown Justice Thomas,” challenges the oft-repeated criticism that Justice Clarence Thomas’s opinions reflect a lack of empathy for the less fortunate. The Essay argues that, on the contrary, Justice Thomas’s opinions are replete with expressions of concern for the “little guy,” which are frequently overlooked or misinterpreted. The Essay explores three themes reflecting this concern in Thomas’s opinions.


Clarence X?: The Black Nationalist Behind Justice Thomas's Constitutionalism, Stephen F. Smith Jan 2009

Clarence X?: The Black Nationalist Behind Justice Thomas's Constitutionalism, Stephen F. Smith

Journal Articles

No abstract provided.


Should The Rooster Guard The Henhouse: A Critical Analysis Of The Judicial Conduct And Disability Act Of 1980, Donald E. Campbell Jan 2009

Should The Rooster Guard The Henhouse: A Critical Analysis Of The Judicial Conduct And Disability Act Of 1980, Donald E. Campbell

Journal Articles

The purpose of this Article is to critically examine the aspect of the Judicial Conduct and Disability Act of 1980 which seems to invite the most criticisms and raise the most questions of impropriety - namely, the initial receipt, review, and investigation of misconduct complaints. This article proposes that the current process of receiving, reviewing, and investigating judicial misconduct complaints should be amended. Specifically, the Act should incorporate into the current system an initial review and investigation by a magistrate judge. To this end, Part II sets out the procedures of how complaints are currently handled under the Act. Part III ...


Introduction, Amy Coney Barrett Jan 2008

Introduction, Amy Coney Barrett

Journal Articles

This essay is as an introduction to a symposium on stare decisis and nonjudicial actors. It frames the questions explored in the symposium by pausing to reflect upon the variety of ways in which nonjudicial actors have, over time, registered their disagreement with decisions of the United States Supreme Court. Both public officials and private citizens have battled the Court on any number of occasions since its inception, and historically, they have employed a diverse range of tactics in doing so. They have resisted Supreme Court judgments. They have denied the binding effect of Supreme Court opinions. They have sought ...


William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett Jan 2006

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took ...


Book Review, Deborah Challener Jan 2006

Book Review, Deborah Challener

Journal Articles

COURTIERS OF THE MARBLE PALACE is a compelling, informative book. As much as anything, it is a tremendous informational source for anyone interested in the Supreme Court. It is evident that the author has thoroughly researched the topic and provided the reader with a factual view of the past and present responsibilities of a Supreme Court law clerk. Because Peppers relies on principal-agent theory to develop his hypotheses and used exhaustive research to prove them, the book also appears to be objective.