Law Commons^™

How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt

Nathan A Greenblatt

Mandatory minimum sentences are anathema to judges due to, it is commonly said, judges’ “utter lack of power to do anything for the exceptional defendants that move them.” In the case of Weldon Angelos, for example, U.S. District Judge Paul Cassell lamented that sentencing Mr. Angelos to 55 years in prison “is unjust, cruel, and even irrational. [The court] reluctantly concludes that it has no choice.” The Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years, because it, too, has concluded that mandatory sentences give judges no choice in sentencing. Indeed, the U.S. Sentencing Commission recently …

Who's Your Daddy?: A Psychoanalytic Exegesis Of The Supreme Court's Recent Patent Jurisprudence, Gretchen S. Sween

Gretchen S. Sween

ABSTRACT Who’s Your Daddy?: A Psychoanalytic Exegesis of the Supreme Court’s Recent Patent Jurisprudence Gretchen S. Sween, Ph.D., J.D. Dechert LLP 300 W. 6th Street Suite 1850 Austin, TX 78701 gretchen.sween@dechert.com Since a new administration took office in 2001, the Supreme Court has granted certiorari in, and then decided, twelve patent cases in six years. Even more extraordinary is the Supreme Court’s remarkable consistency during this recent incursion into patent law: it has either reversed, vacated, and/or remanded Federal Circuit decisions in each instance in opinions that have been unanimous or nearly unanimous. Moreover, the Supreme Court’s rhetoric in formulating …

A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez

John Martinez

A Proposal for Establishing

Specialized Federal and State "Takings Courts"

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

Takings doctrine is a mess. This article proposes that we just accept that -- and establish specialized federal and state "takings courts" for adjudicating takings claims.

In 1978 the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. And in 2005, the Court abrogated a test for takings which it had followed for 25 years. Indeed, some scholars have even resigned themselves to embracing vagueness as a virtue in takings …

A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan

Lumen N. Mulligan

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court’s section 1331 jurisprudence in terms of the contemporary judicial usage of “right” (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

The Food Stays In The Kitchen: Everything I Needed To Know About Statutory Interpretation I Learned By The Time I Was Nine, Hillel Levin

Hillel Levin

Based on a true story, this brief Essay begins with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), and others--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to demonstrate the following:

* We all regularly use the basic tools and modes of statutory interpretation;

* When we interpret pronouncements in real life, …

Constitution By Compromise, Howard Schweber, Amnon Cavari

Howard Schweber

The question of empowering the court and the limits of constitutional protection are at the heart of the debate over constitutional design in Israel. Lacking a comprehensive written constitution, Israel nonetheless has a set of basic laws which encompass many of the functions of a constitutional text making it a near-complete constitution. Nonetheless, there continues to be considerable support for the idea of a single, formally adopted constitutional text. Recently, several proposals have been brought to the forefront of political discussions through the actions of various interest groups outside the government, and energized and committed efforts by government officials and …

Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy

Michael H LeRoy

Judicial review of arbitration awards is highly deferential, but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by …

Much Ado About Non-State Actors: The Vanishing Relevance Of State Affiliation In International Criminal Law, John P. Cerone

John P Cerone

Much has been made recently of the deficiencies of international law in grappling with violence perpetrated by non-state actors. From transnational terrorist networks to private security contractors (PSCs), organizations that are not officially part of the apparatus of any state are increasingly engaged in protracted episodes of intense violence, giving rise to questions of accountability under international law. Does international law provide rules applicable to such conduct? Once the individual has been deemed a subject of positive international law, the requirement of state affiliation is no longer essential to analytical coherence. The issue becomes simply whether international law should directly …

Will Video Kill The Trial Courts' Star? How "Hot" Records Will Change The Appellate Process, Leah A. Walker

Leah A Walker

No abstract provided.

The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, courts discipline and sanction attorneys who make disparaging remarks about the judiciary. Yet, in that context, state and federal courts have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan for punishing speech regarding government officials. Indeed, some courts even deny attorneys the defense of truth. Attorneys have been punished even when they were not engaged in a representative capacity and regardless of the forum in which they made their statements (including to the press, in pamphlets, or even in personal letters). The punishment imposed for impugning judicial …

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …

The Meaning, Measure, And Misuse Of Standards Of Review, Amanda J. Peters

Amanda J Peters

Standards of review are critical to appellate review because they set limitations upon the appellate court's review process. In doing so, standards of review balance judicial authority, make judicial review more efficient, standardize the review process, and give notice to parties who wish to appeal their cases. However, these policies and their effects are diminished when appellate judges misuse or ignore standards of review.

This article examines the theories that led to the creation of standards of review and identifies four ways that appellate courts misuse standards of review. It analyzes over 8,000 cases from Texas and California, along with …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Statistical String Theory For Courts: If The Data Don't Fit..., David F. Babbel

David F Babbel

The primary purpose of this article is to provide courts with an important new tool for applying the correct probability distribution to a given legal question. This tool is path-breaking and will have an extensive impact on how a wide variety of cases are decided. In areas as diverse as criminal prosecutions and civil lawsuits alleging securities fraud, courts must assess the relevance and reliability of statistical data and the inferences drawn therefrom. But, courts and expert witnesses often make mistaken assumptions about what probability distributions are appropriate for their analyses. Using the wrong probability distribution can lead to invalid …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Judging In Chambers: The Powers Of A Single Justice Of The Supreme Court, Daniel M. Gonen

Daniel Gonen

A relatively obscure power of individual federal judges is the power to grant interim relief to a litigant pending appellate review of a lower court’s judgment or order. Individual judges routinely use this power, exercising virtually unfettered discretion to control the interim outcome of cases during the months and years it can take for the appellate process to conclude. In some cases, an individual judge has the power to decide if a case will be kept in a reviewable posture at all. This article explores this power, largely focusing on the Supreme Court level, and offers a critical assessment of …

Learned Hand’S District Court Opinions, 1916-1917: A Macrostructural Analysis Employing Cognitive Psychology Principles, Jeffrey A. Van Detta

Jeffrey A. Van Detta

What makes a judge a good trial court writer? Should this be measured by the writing of the appeals court judges who review them? Does it even matter if trial court judges write well? These are important questions, especially with the growth of our state and federal trial court systems in the United States and Canada. Yet, they’ve not been directly posed, nor adequately answered, even by law professors who use judicial opinions daily as the grist for milling the laity into lawyers. The typical emphasis on appellate opinions as the exemplars of "good judicial writing” is misplaced. Appellate opinions …

Mr. Justice Blackstone: The Commentator On Common Pleas, Emily Kadens

EMILY KADENS

Although William Blackstone served longer as a judge on the English Court of Common Pleas than he had as the inaugural Vinerian Professor of English law at Oxford, his post-professorial legal life has been almost entirely ignored by scholars. Only one article, written almost fifty years ago and focused narrowly on legal doctrine, has offered any insight into Blackstone as a judge. And yet the subject is of great interest for two reasons. First, Blackstone was the first law professor to become a judge on an English common law court. Second, his judicial opinions provide an alternative, and arguably a …

The Scent Of Subject Matter Jurisdiction: Remand And Appellate Review Under The Supplemental Jurisdiction Statute, Deborah J. Challener

Deborah J Challener

Abstract

Under 28 U.S.C. § 1447(c) and (d), as well as Supreme Court precedent, remand orders in removed cases are immune from appellate review when they are based on a lack of subject matter jurisdiction. Until recently, all appellate courts that had addressed the issue had concluded that the remand of supplemental claims under 28 U.S.C. § 1367(c), the supplemental jurisdiction statute, does not constitute a remand for lack of subject matter jurisdiction and therefore is reviewable on appeal.

In 2007, however, the Supreme Court held in Powerex Corp. v. Reliant Energy Services, Inc. that as long as a remand …

Manipulating Court Doctrine For The Good Of The Common Law And Compulsory Arbitration, Richard L. Barnes

richard l barnes

No abstract provided.

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Judicial Reporting Of Lawyer Misconduct, Arthur F. Greenbaum

Arthur F Greenbaum

It has long been recognized that judges can and should play a central role in the lawyer disciplinary process by reporting substantial lawyer misconduct they observe to disciplinary authorities. Despite the nearly 20-year existence of a mandatory reporting rule in such instances, the conventional wisdom suggests that the rule often is not followed. While the 2007 revision of the ABA Model Code of Judicial Conduct provided a golden opportunity to address this problem, the process resulted in little more than a hortatory reaffirmation of the basic principle. There is a better path.

In this essay, I thoroughly analyze the costs …

Redefining Harm, Reimagining Remedies And Reclaiming Domestic Violence Law, Margaret Johnson

Margaret E Johnson

Women subjected to domestic violence are disserved by the civil domestic violence laws that should effectively address and redress their harms. The Civil Protective Order [CPO] laws should remedy all domestic abuse and not solely physical violence or criminal acts. All forms of abuse, including psychological, emotional, economic and physical abuse, cause severe emotional distress, physical harm, isolation, sustained fear, intimidation, poverty, degradation, humiliation, and coerced loss of autonomy. Moreover, all abuse is interrelated, because, as researchers have demonstrated, most domestic violence is the fundamental operation of systemic oppression through the exertion of power and control. Given the effectiveness of …

An Intellectual History Of Judicial Activism, Roger Craig Green

Roger Craig Green

This Article seeks to reclaim the _term_ judicial activism by exploring the _concept_ of judicial activism that underlies it. From newsrooms to confirmation hearings, judicial activism is a uniquely popular epithet condemning judicial misconduct. One goal of this Article is to dispel misperceptions about what judicial activism actually is. Popular examples include understandings of activism as (i) any exercise of judicial review, (ii) any result with which the observer disagrees, (iii) any decision purporting to enhance individual rights, or (iv) any opinion that fails to defer to actions of elected officials.

A second project is to explain in positive terms …

Judicial Independence And Nonpartisan Elections, Brandice Canes-Wrone, Tom S. Clark

Brandice Canes-Wrone

This Article argues against the conventional wisdom about nonpartisan judicial elections. In contrast to the claims of policy advocates and the scholarly literature, we suggest that nonpartisan elections do not necessarily encourage greater judicial independence than partisan elections do. Instead, nonpartisan elections create the incentive for judges to cater to public opinion, and this pressure will be particularly strong for the types of issues that attract attention from interest groups, the media, and voters. After developing this argument, we support it with new empirical evidence. Specifically, we examine patterns of judicial decisions on abortion-related cases heard by state courts of …