Law Commons^™

What Do We Mean By An Independent Judiciary, Michael P. Seng

Michael P. Seng

Judicial independence has roots in separation of powers and in ethical standards that require judges to be competent and impartial. Judicial independence depends upon society having faith in the integrity of the courts. Accountability is thus the handmaid of an independent judiciary. This article defines both the structure and the ethical standards that insure an independent judiciary.

Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss

David Sloss

In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. …

An Empirical Study Of Settlement Conference Nuts And Bolts: Settlement Judges Facilitating Communication, Compromise And Fear, Peter R. Robinson

Peter R. Robinson

No abstract provided.

Statutory Interpretation & The Presidency: The Hierarchy Of “Executive History”, Faye Jones, Alvan Balent

Faye E Jones

It is common knowledge that the New Deal fundamentally remade America because after the New Deal, Americans began looking to the federal government to solve their problems. This increased public interest in the national government prompted major changes in each branch of the government. The Executive branch, for instance, became the most prominent branch of the federal government, and the President consequently began exerting himself in all aspects of the government including lawmaking. Congress began to pass more legislation, and thus the federal judiciary’s docket became filled with statutory interpretation cases. However, when interpreting statutes, the judiciary has largely disregarded …

Live Hearings And Paper Trials, Mark Spottswood

Mark Spottswood

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review …

Constitutional Pathology, The War On Terror, And United States V. Klein, Howard M. Wasserman

Howard M Wasserman

In The Irrepressible Myth of Klein (UNIVERSITY OF CINCINNATI LAW REVIEW, 2010) I discuss the meaning, scope, and continued relevance of the Supreme Court's historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless domestic surveillance) and the Military Commissions Act …

Foreign Citizens As Members Of Transnational Class Actions, Jay Tidmarsh

Jay Tidmarsh

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that foreign citizens whose home forum will not recognize an American class judgment should be excluded from membership. Our analysis begins by establishing that this consensus is seriously flawed and misapprehends the nature of the problem. Using standard tools of economic analysis, we then make two arguments. First, the decision to include or exclude foreign class members should be based upon a comparison of costs and benefits: in particular, the costs generated by foreign …

Jury 2.0, Caren Myers Morrison

Caren Myers Morrison

When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or Googling the defendant’s name during trial. But in the past few years, such cases have increasingly been making headlines. The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention. This article is the first to focus legal discourse …

Jury 2.0, Caren Myers Morrison

Caren Myers Morrison

When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or Googling a defendant’s name during trial. But in the past few years, such cases have increasingly been making headlines. The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention. This article is the first to focus legal discourse …

Procedure, Substance, And Erie, Jay Tidmarsh

Jay Tidmarsh

This article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that “procedure” should be understood in terms of process — in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of “procedure” and “substance change with the context — a pillar on which present Erie analysis is based — is wrong. Finally, it suggests a single process-based principle that reconciles all of the Supreme Court’s “procedural …

Seeing The Forest For The Trees: The Transaction Or Occurrence And The Claim Interlock Civil Procedure, Douglas D. Mcfarland

Douglas D. McFarland

The article traces the transaction or occurrence and the claim through various joinder (cross-claims, permissive joinder of parties, rule 14 claims), pleading (claims, separate counts, relation back of amendments), and interlocutory appeal (54(b))rules to the following conclusion. Since courts have struggled with the proper fact-based definition of claim and transaction or occurrence when they interpret individual rules in individual cases, we should not be surprised that courts and commentators have been reluctant to recognize the commonality of these concepts throughout the rules. “Claim” has been interpreted differently in different contexts. “Transaction or occurrence” has been interpreted differently in different contexts. …

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …

Indispensable Sovereigns: Pimentel, Abstention, And The Uses Of Rule 19, Katherine J. Florey

Katherine J. Florey

This Article attempts to fill some of the gap in academic treatment of Rule 19 by considering an important and timely issue in the Rule’s application. It makes the argument that, while Rule 19 was originally intended to facilitate the consolidation of litigation by authorizing mandatory joinder of absent parties, it has evolved in an important subset of cases to serve a nearly opposite purpose. That is, in many cases where a party may be affected by the litigation but cannot be joined because it is a sovereign possessing immunity from suit, courts have developed a near-categorical rule that the …

The Partisan Dimensions Of Federal Preemption In The United States Courts Of Appeals, Bradley Joondeph

Bradley W. Joondeph

This paper explores some of these empirical uncertainties surrounding the political dimensions of preemption in the federal courts. More concretely, it presents a statistical study of every preemption decision rendered by the United States Courts of Appeals from January 1, 2005, to December 31, 2009, a total of 560 decisions and just over 1,700 judicial votes. And these data tell a story consisting of two distinct parts. The first part is that preemption disputes seem to produce a large measure of judicial consensus. In the full universe of cases, there is only a slight difference between Republican and Democratic appointees: …

From Clerk To Justice: Lessons Drawn From Justice Stevens' Year With Wiley Rutledge, Laura Ray

Laura K. Ray

No abstract provided.

Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe

Alan W Moe Jr

Censorship has always been a polemical area of constitutional law. The controversy is further amplified when administrative agencies deal with sensitive areas of constitutional liberties. In FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1807 (2009), the U.S. Supreme Court dealt with an important issue of constitutional law and its intersection with the standard of judicial review for administrative agencies’ actions. In this case, the Court upheld the Federal Communications Commission’s about-face on its relatively conservative approach to the censorship of broadcasts for reasons of indecency in 2004. The FCC applied against Fox Television Stations its new policy of …

Teaching Professional Ethics To Lawyers And Mediators Using Active Learning Techniques, Paula M. Young

Paula Marie Young Prof.

Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson

Erika K. Wilson

While much attention is paid to issues of segregation and inequality in education, little attention is paid to the role that school district boundary lines play in creating segregation and inequality in education. Living on one side of a school district boundary line rather than another can mean the difference between being able to attend a high achieving resource enriched school or having to attend a low achieving, resource deprived school. Nevertheless, the federal judiciary--the institution looked upon to remedy issues of school segregation and inequality--is unable to adequately remedy segregation and inequality between school districts because it evidences a …

Is The United States Tax Court Exempt From Administrative Law Jurisprudence When Acting As A Reviewing Court?, Diane Fahey

Diane L. Fahey

To maintain legitimacy and stability, a government must have access to a reliable source of revenue. Taxes are the lifeblood that sustains a government. Therefore, as far back as 1931, the United States Supreme Court has enforced the principle that the executive branch of the federal government must be unimpaired in its ability to collect taxes owed; otherwise, the government could be undermined by citizens who attempt to delay or evade their obligation to pay taxes.

Taxpayers have always been permitted to dispute the amount of their liability; however, until recently, taxpayers had little opportunity to dispute the method employed …

Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson

Kip D Nelson

No abstract provided.

The Irrepressible Myth Of Klein, Howard M. Wasserman

Howard M Wasserman

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …

Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin

Michael L Perlin

Scholars have begun to consider the impact of neuroimaging evidence on capital punishment trials, questioning whether reliance on such testimony can actually make “sentencing more rational and humane.” They have also considered the impact of this evidence on criminal sentencing, expressing concern that such evidence will be improperly used “as predictive factors to increase sentences,” and counseling policymakers to “avoid misuse of new techniques.” In an earlier article on neuroimaging and criminal procedure, I considered the questions of a criminal defendant’s competency to submit to neuroimaging testing, and the impact of antipsychotic medications on the results of such testing.

What …

Original Habeas Redux, Lee B. Kovarsky

Lee Kovarsky

In "Original Habeas Redux," I map the modern dimensions of the Supreme Court’s most exotic jurisdiction—the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction. Scrambling to understand how the authority has evolved since its …

Legislative Rules, Nonlegislative Rules, And The Perils Of The Short Cut, David L. Franklin

David L. Franklin

Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exempted from notice and comment. The distinction has been called “tenuous,” “baffling,” and “enshrouded in considerable smog.”

What is just as baffling is that prominent commentators such as John Manning, Peter Strauss, William Funk and Donald Elliot have proposed a simple solution to the problem—and courts have failed to take them up on it. Rather than inquiring into …

The Structural Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …

Cultural Cognition At Work, Paul Secunda

Paul M. Secunda

Cultural cognition theory provides an anthropological and psychological-based theory about how values actually influence judicial decisionmaking. It suggests that values act as a subconscious influence on cognition rather than as a self-conscious motive of decision-making.

Applying these insights to two controversial United States Supreme Court labor and employment decisions, this Article contends that judges in many instances are not fighting over ideology, but rather over legally-consequential facts. This type of disagreement is particularly prevalent in labor and employment law cases where the factual issues that divide judges involve significant uncertainty and turn on inconclusive evidence.

This distinction between ideology and …

Patent Law And The Two Cultures, Peter Lee

Peter Lee

A half century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, this Article addresses challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. It first argues that technological subject matter imposes significant cognitive burdens on generalist judges. It then explores the “cognitive miser” model whereby lay persons adopt heuristics and defer to expertise to limit their engagement with technology. Drawing from …

An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee Strang

Lee J Strang

In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory.

First, I briefly review the debate in originalism over the role of constitutional precedent.

Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist …

Book Review (Reviewing William Domnarski, Federal Judges Revealed (2009), Nancy Marder

Nancy S. Marder

No abstract provided.

The Legacy Of A Supreme Court Clerkship: Stephen Breyer And Arthur Goldberg, Laura Ray

Laura K. Ray

No abstract provided.