Law Commons^™

Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Law Library Blog (October 2015): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach

All Faculty Scholarship

I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.

Newsroom: Judge Edward Clifton Joins Faculty, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Newsroom: Logan On Judicial Diversity, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Reverse Nullification And Executive Discretion, Michael T. Morley

Scholarly Publications

The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.

Such a broad application of obstacle and field preemption is …

Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul

Political Science Honors Projects

The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.

Resurrecting Trial By Statistics, Jay Tidmarsh

Journal Articles

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …

(Re-)Grasping The Opportunity Interest: Lehr V. Robertson And The Terminated Parent, Lashanda Taylor Adams

Journal Articles

In 1997, an Ohio court terminated Peggy Fugate’s parental rights to her sixyear-old daughter, Selina. At the time, Ms. Fugate, an incarcerated drug abuser, did not fight the order, believing her daughter would be adopted into a clean, stable home.1 However, Selina was never adopted. For the next seven years, Selina had trouble with the police and ran away from her foster home numerous times. While Selina’s life was going downhill in many respects, her mother was rehabilitating. She entered recovery, married, obtained full-time employment and was living in stable housing with enough room for her daughter. Recognizing the strides …

Court Competition For Patent Cases, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

The traditional academic explanation for forum shopping is simple: litigants prefer to file cases in courts that offer some substantial advantage — either legal or procedural — over all other courts. But the traditional explanation fails to account for competition for litigants among courts. This Article suggests that forum shopping in patent law is driven in part by the creation of procedural and administrative distinctions among courts that are designed to attract, or in some cases to repel, patent litigants.

This Article makes two primary contributions to the literature, one theoretical and one normative. First, it theorizes that judicial competition …

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle—Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in suits challenging …

Filling The Federal Appellate Court Vacancies, Carl W. Tobias

Law Faculty Publications

Multiple observers have criticized President Barack Obama’s discharge of his Article II constitutional responsibility to nominate and confirm federal judges. Senators have blamed the administration for slowly making nominations, liberals have contended that the executive appointed myriad candidates who are not sufficiently centrist, and conservatives have alleged that President Obama proffered many nominees who could become liberal judicial activists. Despite the sharp criticisms, the President has actually realized much success when nominating and confirming well qualified moderate jurists. President Obama has named more judges than Presidents George W. Bush and Bill Clinton had at this juncture in their tenure, while …

Judge Posner’S Simple Law, Mitchell N. Berman

All Faculty Scholarship

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely—from the Bluebook …

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

Articles in Law Reviews & Other Academic Journals

The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …

Applications Of Neuroscience In Criminal Law: Legal And Methodological Issues, John B. Meixner Jr.

Scholarly Works

The use of neuroscience in criminal law applications is an increasingly discussed topic among legal and psychological scholars. Over the past 5 years, several prominent federal criminal cases have referenced neuroscience studies and made admissibility determinations regarding neuroscience evidence. Despite this growth, the field is exceptionally young, and no one knows for sure how significant of a contribution neuroscience will make to criminal law. This article focuses on three major subfields: (1) neuroscience-based credibility assessment, which seeks to detect lies or knowledge associated with a crime; (2) application of neuroscience to aid in assessments of brain capacity for culpability, especially …

Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

Law Faculty Articles and Essays

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.

In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Supremes, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.