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Articles 1 - 12 of 12
Full-Text Articles in Law
The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeals, Amy E. Sloan
The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeals, Amy E. Sloan
All Faculty Scholarship
Informal en banc review is a procedural expedient that nine of the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to take actions normally reserved for the full court sitting en banc. The circuits that use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal en banc review is significant when compared with formal en banc review. Informal en banc review is more efficient than formal en banc review, but the efficiency benefits come at a price. Informal en …
Structure And Precedent, Jeffrey C. Dobbins
Structure And Precedent, Jeffrey C. Dobbins
Jeffrey C. Dobbins
The standard model of vertical precedent is part of the deep structure of our legal system. The rules governing that model are largely intuitive, often taught only in passing at law school, and rarely addressed by positive law. While the application of these rules of precedent can be difficult in practice, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. A Ninth Circuit opinion, for instance, is binding on district courts within the Ninth Circuit and on subsequent Ninth Circuit panels; it is not binding on Second Circuit panels. …
An Originalist Theory Of Precedent: The Epistemic And Metaphysical Attitudes Toward Originalist Precedent, Lee Strang
An Originalist Theory Of Precedent: The Epistemic And Metaphysical Attitudes Toward Originalist Precedent, Lee Strang
Lee J Strang
No abstract provided.
Sherman Minton: Restraint Against A Tide Of Activism, Linda C. Gugin
Sherman Minton: Restraint Against A Tide Of Activism, Linda C. Gugin
Vanderbilt Law Review
Sherman Minton was not a great U.S. Supreme Court Justice, but he was far better than the image that scholars have created for him would indicate. Although there are exceptions, scholars generally consider Minton to have been an ineffective Justice who was put on the bench only because he was a crony of President Harry Truman. Indeed, the scholars who periodically provide a list of the "greatest" and "worst" Justices inevitably relegate Minton to the "worst" category. For example, Bernard Schwartz, who classified Minton as one of the ten worst Justices, said Minton "was below mediocrity as a Justice. His …
Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland
Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland
Law Faculty Publications
No abstract provided.
Overturning The Last Stone: The Final Step In Returning Precedential Status To All Opinions, David R. Cleveland
Overturning The Last Stone: The Final Step In Returning Precedential Status To All Opinions, David R. Cleveland
Law Faculty Publications
No abstract provided.
Stare Decisis Is Cognitive Error, Goutam U. Jois
Stare Decisis Is Cognitive Error, Goutam U. Jois
Goutam U Jois
For hundreds of years, the practice of stare decisis -- a court’s adherence to prior decisions in similar cases -- has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society’s “true preferences” with regard to law and policy, may reflect -- and exacerbate -- our cognitive biases. The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others’ decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up …
Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss
Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss
Articles by Maurer Faculty
In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using …
A Review Of “How Judges Think” By Richard A Posner, Chad Flanders
A Review Of “How Judges Think” By Richard A Posner, Chad Flanders
All Faculty Scholarship
This is a short review of How Judges Think by Richard Posner.
Toward A Theory Of Persuasive Authority, Chad W. Flanders
Toward A Theory Of Persuasive Authority, Chad W. Flanders
Oklahoma Law Review
No abstract provided.
Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch
Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch
Georgetown Law Faculty Publications and Other Works
Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what …
L’Arbitrage International: Du Contrat Dyadique Au Système Normatif, Alec Stone Sweet, Florian Grisel
L’Arbitrage International: Du Contrat Dyadique Au Système Normatif, Alec Stone Sweet, Florian Grisel
Alec Stone Sweet
No abstract provided.