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Full-Text Articles in Law
What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson
What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson
Faculty Scholarship
In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This …
Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib
Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib
Faculty Scholarship
This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …
Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney
Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney
Faculty Scholarship
This article contributes to an ongoing debate about the feasibility and desirability of measuring the merit of appellate judges - and their consequent Supreme Court potential - by using objective performance variables. Relying on the provocative and controversial tournament criteria proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the Supreme Court potential of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two …