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Articles 1 - 30 of 31
Full-Text Articles in Law
In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks
In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks
College of Law Faculty Scholarship
John Hart Ely famously observed, “We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure,” but for most of Erie’s history, the Supreme Court has answered the question “Does this state law govern in federal court?” with a “yes” or a “no.” Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed and Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for themselves the prerogative to fashion law that purportedly accommodates …
Ending Erie's Third Phase: Why The Supreme Court Should Stop Freelancing And Go Back To Drawing Lines Between Substance And Procedure, Jennifer S. Hendricks
Ending Erie's Third Phase: Why The Supreme Court Should Stop Freelancing And Go Back To Drawing Lines Between Substance And Procedure, Jennifer S. Hendricks
College of Law Faculty Scholarship
John Hart Ely famously observed, “We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure,” but for most of Erie’s history, the Supreme Court has answered the question “Does this state law govern in federal court?” with a “yes” or a “no.” Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed and Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for themselves the prerogative to fashion law that purportedly accommodates …
Materials For Presentation: The Disappearing Colorado River, Lawrence J. Macdonnell
Materials For Presentation: The Disappearing Colorado River, Lawrence J. Macdonnell
Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10)
7 pages.
"Western Economics Forum, Fall 2010"
Judicial Takings, Judicial Speech, And Doctrinal Acceptance Of The Model Of The Judge As Political Actor, William P. Marshall
Judicial Takings, Judicial Speech, And Doctrinal Acceptance Of The Model Of The Judge As Political Actor, William P. Marshall
Faculty Publications
No abstract provided.
Progressive Constitutionalism, Originalism, And The Significance Of Landmark Decisions In Evaluating Constitutional Theory, William P. Marshall
Progressive Constitutionalism, Originalism, And The Significance Of Landmark Decisions In Evaluating Constitutional Theory, William P. Marshall
Faculty Publications
No abstract provided.
Towards An Understanding Of Litigation As Expression: Lessons From Guantánamo, Kathryn A. Sabbeth
Towards An Understanding Of Litigation As Expression: Lessons From Guantánamo, Kathryn A. Sabbeth
Faculty Publications
No abstract provided.
Elections Matter, Michael J. Gerhardt
The Evolving International Judiciary, Karen J. Alter
The Evolving International Judiciary, Karen J. Alter
Faculty Working Papers
This article explains the rapid proliferation in international courts first in the post WWII and then the post Cold War era. It examines the larger international judicial complex, showing how developments in one region and domain affect developments in similar and distant regimes. Situating individual developments into their larger context, and showing how change occurs incrementally and slowly over time, allows one to see developments in economic, human rights and war crimes systems as part of a longer term evolutionary process of the creation of international judicial authority. Evolution is not the same as teleology; we see that some international …
The Global Spread Of European Style International Courts, Karen J. Alter
The Global Spread Of European Style International Courts, Karen J. Alter
Faculty Working Papers
Europe created the model of embedded international courts (IC), where domestic judges work with international judges to interpret and apply international legal rules that are also part of national legal orders. This model has now diffused around the world. This article documents the spread of European-style ICs: there are now eleven operational copies of the European Court of Justice (ECJ), three copies of the European Court of Human Rights, and a handful of additional ICs that use Europe's embedded approach to international law. After documenting the spread of European-style ICs, the article then explains how two regions chose European style …
The Oberlin Fugitive Slave Rescue: A Victory For The Higher Law, Steven Lubet
The Oberlin Fugitive Slave Rescue: A Victory For The Higher Law, Steven Lubet
Faculty Working Papers
This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book -- Fugitive Justice: Runaways, Rescuers, and Slavery on Trial -- which tells this story (and several others) in much more detail.
In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and …
Soldier Suicides And Outcrit Jurisprudence: An Anti-Subordination Analysis, Olympia Duhart
Soldier Suicides And Outcrit Jurisprudence: An Anti-Subordination Analysis, Olympia Duhart
Faculty Scholarship
No abstract provided.
Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson
Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson
Faculty Scholarship
This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic …
Judicial Retirement And Return To Practice, Mary Clark
Judicial Retirement And Return To Practice, Mary Clark
Articles in Law Reviews & Other Academic Journals
This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.
This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …
Adoption Of English Law In Maryland, Garrett Power
Adoption Of English Law In Maryland, Garrett Power
Legal History Publications
It served as an axiom of Maryland’s constitutional history that settlers carried with them the “rights of Englishmen” when they crossed the Atlantic. In 1642 the Assembly of Maryland Freemen declared Maryland’s provincial judges were to follows the law of England. Maryland’s 1776 Declaration of Independence left a legal lacuna--- what were to be the laws and public institutions of this newly created sovereign entity? This paper considers the manner in which the sovereign state of Maryland filled the void.
On The Study Of Judicial Behaviors: Of Law, Politics, Science And Humility, Stephen B. Burbank
On The Study Of Judicial Behaviors: Of Law, Politics, Science And Humility, Stephen B. Burbank
All Faculty Scholarship
In this paper, which was prepared to help set the stage at an interdisciplinary conference held at the University of Indiana (Bloomington) in March, I first briefly review what I take to be the key events and developments in the history of the study of judicial behavior in legal scholarship, with attention to corresponding developments in political science. I identify obstacles to cooperation in the past – such as indifference, professional self-interest and methodological imperialism -- as well as precedents for cross-fertilization in the future. Second, drawing on extensive reading in the political science and legal literatures concerning judicial behavior, …
Getting What You Pay For: Judicial Compensation And Judicial Independence, Jonathan L. Entin
Getting What You Pay For: Judicial Compensation And Judicial Independence, Jonathan L. Entin
Faculty Publications
No abstract provided.
An Essay On Torts: States Of Argument, Marshall S. Shapo
An Essay On Torts: States Of Argument, Marshall S. Shapo
Faculty Working Papers
This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …
Extraterritorial Intellectual Property Enforcement In The European Union, Marketa Trimble
Extraterritorial Intellectual Property Enforcement In The European Union, Marketa Trimble
Scholarly Works
This paper was prepared for the 2011 ABILA International Law Weekend – West volume of the Southwestern Journal of International Law. It addresses extraterritorial enforcement of intellectual property rights in the European Union. The maximum length of the paper was set by the Journal.
The problems associated with extraterritorial enforcement of intellectual property rights in the European Union (the “EU”) may be divided into three categories: enforcement of unitary EU-wide rights, enforcement of multiple national rights, and enforcement of rights based on one national law with extraterritorial effects on activities in other countries. Although these are three distinct categories of …
Allocating Power Within Agencies, Elizabeth Magill, Adrian Vermeule
Allocating Power Within Agencies, Elizabeth Magill, Adrian Vermeule
All Faculty Scholarship
Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental authority among the three branches of the national government. These discussions, however, are incomplete because agencies are typically treated as unitary entities. In this essay, we examine a different question: How does administrative law allocate power within agencies? Although scholars have sometimes cracked open the black box of agencies to peer inside, their insights are localized and confined to particular contexts. We will …
False Security: How Courts Have Improperly Rendered The Protections Of The Protective Order Illusory, Ramona L. Lampley
False Security: How Courts Have Improperly Rendered The Protections Of The Protective Order Illusory, Ramona L. Lampley
Faculty Articles
The protective order is perhaps one of the most useful and “taken for granted” discovery devices contemplated by the Colorado and Federal Rules of Civil Procedure. The purpose of a joint protective order in civil litigation is to permit the parties to produce business information without fear that the information will be disseminated publicly, and with a court order that the information be used only for purposes of the present litigation. Blanket protective orders serve the interests of a just, speedy, and less expensive determination of complex disputes by alleviating the need for and delay occasioned by extensive and repeated …
White Male Heterosexist Norms In The Confirmation Process, Theresa M. Beiner
White Male Heterosexist Norms In The Confirmation Process, Theresa M. Beiner
Faculty Scholarship
Justice Sonia Sotomayor's confirmation hearing took a controversial turn when commentators picked up on a reference in the New York Times to a portion of a speech she gave in 2001. In that speech, then Judge Sotomayor opined that, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." That statement, along with her participation in the per curiam decision in Ricci v. DeStefano, caused a minor storm during her confirmation. More recently, former Harvard Dean and former …
The New Old Legal Realsim, Tracey E. George, Mitu Gulati, Ann C. Mcginley
The New Old Legal Realsim, Tracey E. George, Mitu Gulati, Ann C. Mcginley
Vanderbilt Law School Faculty Publications
Judges produce opinions for numerous purposes. A judicial opinion decides a case and informs the parties whether they won or lost. But in a common law system, the most important purpose of the opinion, particularly the appellate opinion, is to educate prospective litigants, lawyers, and lower court judges about the law: what it is and how it applies to a specific set of facts. Without this purpose, courts could more quickly and efficiently issue one-sentence rulings rather than set forth reasons. By issuing opinions, courts give actors a means of evaluating whether their actions are within the bounds of law. …
Legal Integration In The Andes: Law-Making By The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter
Legal Integration In The Andes: Law-Making By The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter
Faculty Scholarship
The Andean Tribunal of Justice (ATJ) is a copy of the European Court of Justice (ECJ), and the third most active international court. This article reviews our findings based on an original coding of all ATJ preliminary rulings from 1984 to 2007, and over forty interviews in the region. We then compare Andean and European jurisprudence in three key areas: whether the tribunals treat the founding integration treaties as constitutions for their respective communities, whether the ATJ and ECJ have implied powers for community institutions that are not expressly enumerated in the founding treaties, and how the tribunals conceive of …
The New Old Legal Realism, Tracey E. George, Mitu Gulati, Ann C. Mcginley
The New Old Legal Realism, Tracey E. George, Mitu Gulati, Ann C. Mcginley
Scholarly Works
Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into understandings and behavior at the ground level. As our lens, we use evidence of how people talk about the …
The New Old Legal Realism, Mitu Gulati, Tracey E. George, Ann Mcginley
The New Old Legal Realism, Mitu Gulati, Tracey E. George, Ann Mcginley
Faculty Scholarship
Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into understandings and behavior at the ground level. As our lens, we use evidence of how people talk about the …
Euis Nurlaelawati, Modernization, Tradition And Identity: The Kompilasi Hukum Islam And Legal Practice In The Indonesian Religious Courts, Nadirsyah Hosen
Euis Nurlaelawati, Modernization, Tradition And Identity: The Kompilasi Hukum Islam And Legal Practice In The Indonesian Religious Courts, Nadirsyah Hosen
Faculty of Law, Humanities and the Arts - Papers (Archive)
Book review:
Euis Nurlaelawati, Modernization, Tradition and Identity:·the Kompilasi Hukum Islam and Legal Practice in the Indonesian Religious Courts, Amsterdam University Press, Amsterd,am, 2010, 304 pp.
Choosing Justices: How Presidents Decide, Joel K. Goldstein
Choosing Justices: How Presidents Decide, Joel K. Goldstein
All Faculty Scholarship
Presidents play the critical role in determining who will serve as justices on the Supreme Court and their decisions inevitably influence constitutional doctrine and judicial behavior long after their terms have ended. Notwithstanding the impact of these selections, scholars have focused relatively little attention on how presidents decide who to nominate. This article contributes to the literature in the area by advancing three arguments. First, it adopts an intermediate course between the works which tend to treat the subject historically without identifying recurring patterns and those which try to reduce the process to empirical formulas which inevitably obscure considerations shaping …
Leading The Court: Studies In Influence As Chief Justice, Joel K. Goldstein
Leading The Court: Studies In Influence As Chief Justice, Joel K. Goldstein
All Faculty Scholarship
Chief Justice Roberts has now completed five years of what is likely to be a lengthy tenure in the Court’s center seat. The quality of his institutional leadership, like that of his predecessors, resists confident contemporary assessment to a unique degree among principal offices of American government inasmuch as much of what a Chief Justice does is invisible to all but a relatively few observers, most or all of whom generally remain discreetly silent about such matters. Nonetheless, history counsels that the professional and interpersonal skill which a Chief Justice displays may substantially affect the Supreme Court and the quality …
Catching The Wave: State Supreme Court Outreach Efforts, Rebecca Green
Catching The Wave: State Supreme Court Outreach Efforts, Rebecca Green
Faculty Publications
State supreme courts have begun to grasp the many ways technology can connect the public with courts. This article will review some of the main trends in state supreme courts’ use of the Internet to educate the public about their work.
Pathway To Minority Shareholder Protection: Derivative Actions In The People's Republic Of China, Donald C. Clarke
Pathway To Minority Shareholder Protection: Derivative Actions In The People's Republic Of China, Donald C. Clarke
GW Law Faculty Publications & Other Works
Using a dataset of Chinese judicial opinions arising in over fifty cases, this paper analyses the development and current implementation of shareholder derivative actions in the courts of the People’s Republic of China (“PRC”), both before and after the derivative lawsuit was explicitly authorized in the PRC’s 2006 Company Law effective January 1, 2006. In addition, we describe the very unique ecology of enterprise organization and corporate governance in modern China, and critique the formal design of the derivative action and offer reform suggestions.
We find the design of the Chinese derivative lawsuit to be, in some respects, innovative and …