Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Judges (23)
- Courts (7)
- Social and Behavioral Sciences (5)
- Civil Procedure (4)
- Jurisprudence (4)
-
- Constitutional Law (3)
- Criminal Law (3)
- Sociology (3)
- Civil Rights and Discrimination (2)
- Criminal Procedure (2)
- Economics (2)
- Education (2)
- Family Law (2)
- Immigration Law (2)
- Law and Politics (2)
- Legal Ethics and Professional Responsibility (2)
- Legal History (2)
- Legislation (2)
- Administrative Law (1)
- Arts and Humanities (1)
- Civil Law (1)
- Comparative and Foreign Law (1)
- Dispute Resolution and Arbitration (1)
- Evidence (1)
- Genetics (1)
- Genetics and Genomics (1)
- Health Law and Policy (1)
- History (1)
- Human Rights Law (1)
- Institution
-
- SelectedWorks (50)
- Selected Works (16)
- Duke Law (5)
- University of Baltimore Law (3)
- American University Washington College of Law (2)
-
- Fordham Law School (2)
- George Washington University Law School (2)
- Saint Louis University School of Law (2)
- University of Missouri School of Law (2)
- Vanderbilt University Law School (2)
- Arizona Summit Law School (1)
- Chicago-Kent College of Law (1)
- Georgetown University Law Center (1)
- Pepperdine University (1)
- Schulich School of Law, Dalhousie University (1)
- St. John's University School of Law (1)
- University of Colorado Law School (1)
- University of Georgia School of Law (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Miami Law School (1)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (1)
- University of Pennsylvania Carey Law School (1)
- University of Pittsburgh School of Law (1)
- Western Kentucky University (1)
- William & Mary Law School (1)
- Publication
-
- All Faculty Scholarship (5)
- Duke Law Journal (4)
- Faculty Publications (3)
- Jeffrey W Stempel (3)
- Articles (2)
-
- Articles in Law Reviews & Other Academic Journals (2)
- Faculty Scholarship (2)
- Fordham Law Review (2)
- Francisco J Benzoni (2)
- GW Law Faculty Publications & Other Works (2)
- Jeff L Yates (2)
- Matthew L.M. Fletcher (2)
- Scholarly Works (2)
- Tom Ginsburg (2)
- Tonja Jacobi (2)
- Vanderbilt Law School Faculty Publications (2)
- Adjoa A. Aiyetoro (1)
- Anup Malani (1)
- Armando G. Hernandez (1)
- Beth Shankle-Anderson (1)
- Brent T. White (1)
- Bruce A Antkowiak (1)
- Byron G. Stier (1)
- Carolyn Shapiro (1)
- Catherine Ross Dunham (1)
- Chad M Oldfather (1)
- Chicago-Kent Law Review (1)
- Dale K Larson (1)
- Dalhousie Law Journal (1)
- Dana M. Muir (1)
- Publication Type
Articles 1 - 30 of 101
Full-Text Articles in Law
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Karen H. Rothenberg
The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …
The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli
The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli
James Ianelli
The Constitution’s eligibility qualifications in Articles I and II have drawn increased scrutiny in recent national elections. No scholarship to date, however, has examined why the Framers omitted any comparable qualifications from Article III. This paper presents the question of what made the judiciary unique relative to the other branches such that any nominated and confirmed candidate could sit on the federal bench.
The answer to this question sheds new light on the wisdom of eligibility qualifications in Articles I and II. Although no direct historical record details the basis for the omission, a number of factors appear relevant. Without …
Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan
Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan
Chicago-Kent Law Review
The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional policy …
The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez
The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez
Armando G. Hernandez
A simple truism we all learned in our childhood was that the square pegs did not fit into the circular shaped cut-outs. Greek philosophers often struggled with this very same conundrum of squaring the circle. In 1996, the Supreme Court decided Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The case required application of the Court's Erie jurisprudence. Many commentators hailed the case as the ideal moment to clarify the Court's esoteric body of law. However, writing for a six vote majority, Justice Ginsburg held that state law (the square) and federal law (the circle) could be accommodated. …
Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman
Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman
David Schneiderman
International investment arbitration has been described as a private system of justice addressing matters of high public policy. Yet, despite the very high stakes involved – in terms of both policy room and monetary implications – tribunal awards are sometimes difficult to reconcile. This conflict usually is explained with reference to the fact that these are ad hoc tribunals addressing specific disputes arising under particular investment treaties. Not so easily explained are conflicting tribunal awards drawing on virtually identical facts, invoking the same treaty text, where arbitrators seemingly change their mind from one case to the next without any explanation. …
The Structural Case For Vertical Maximalism, Tara Leigh Grove
The Structural Case For Vertical Maximalism, Tara Leigh Grove
Faculty Publications
Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …
Imagining Judges That Apply Law: How They Might Do It, James Maxeiner
Imagining Judges That Apply Law: How They Might Do It, James Maxeiner
All Faculty Scholarship
"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law.
American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts …
There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch
There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch
Scholarly Works
This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.
Application Of Non-Implemented International Law By The Federal Court Of Appeal: Towards A Symbolic Effect Of S. 3(3)(F) Of The Irpa?, France Houle, Noura Karazivan
Application Of Non-Implemented International Law By The Federal Court Of Appeal: Towards A Symbolic Effect Of S. 3(3)(F) Of The Irpa?, France Houle, Noura Karazivan
Dalhousie Law Journal
Since 1999, the Supreme Court has explored the linkages between domestic statutes and international norms and values and has slowly developed the basic principles underlying a new mechanism of relevancy that the authors call harmonization of domestic law with international law The authors analyze this development in PartI of the present article. In Part II, they study the application of this harmonization mechanism in the field of Canadian immigration law Of, particular importance in the Immigration and Refugee Protection Act is s. 3(3)(f), for it directs judges to construe and apply the IRPA in a manner that "complies with international …
Does Judicial Philosophy Matter? A Case Study, Francisco J. Benzoni
Does Judicial Philosophy Matter? A Case Study, Francisco J. Benzoni
Francisco J Benzoni
A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge’s political ideology can be used to predict how a judge will decide certain cases, and other factors, such as the judge’s judicial philosophy, tend to be unimportant. Under this theory, the two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with predicted ideological outcomes. This manuscript tests the attitudinal model by examining opinions by two federal courts of appeals judges with very similar political ideologies, but different judicial philosophies: J. …
Here Comes The Judge! Gender Distortion On Tv Reality Court Shows, Taunya Lovell Banks
Here Comes The Judge! Gender Distortion On Tv Reality Court Shows, Taunya Lovell Banks
Taunya Lovell Banks
In the judicial world of television court shows women constitute a majority of the judges and where non-white women and men dominate. In real life most judges are white and male. This essay looks at the gender and racial composition and demeanor of these television reality judges. It asks whether women TV reality judges behave differently from their male counterparts and whether women’s increased visibility as judges on daytime reality court shows reinforces or diminishes traditional negative stereotypes about women, especially non-white women.
Essay: Justice Sotomayor On The Supreme Court: A Boon For Business?, Dana M. Muir, David Baumer, Stephanie Greene, Gideon Mark, Robert E. Thomas
Essay: Justice Sotomayor On The Supreme Court: A Boon For Business?, Dana M. Muir, David Baumer, Stephanie Greene, Gideon Mark, Robert E. Thomas
Dana M. Muir
In this essay, five business law professors with specialties in five different doctrinal areas analyze Justice Sonia Sotomayor’s jurisprudence in those areas and consider the implications of her appointment to the Supreme Court. Each of the areas, intellectual property, antitrust, securities, ERISA, and employment law, involves an area of federal law of significant importance to businesses. Although employment law also is a matter of state law, this essay focuses on the federal employment law statutes. Based on our analysis, we believe that Justice Sotomayor will approach business cases from a neutral perspective. Overall, we find support for the generally accepted …
Does Judicial Philosophy Matter? A Case Study, Francisco J. Benzoni, Chrisopher Dodrill
Does Judicial Philosophy Matter? A Case Study, Francisco J. Benzoni, Chrisopher Dodrill
Francisco J Benzoni
A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge’s political ideology can be used to predict how a judge will decide certain cases, and other factors, such as the judge’s judicial philosophy, tend to be unimportant. Under this theory, the two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with predicted ideological outcomes. This manuscript tests the attitudinal model by examining opinions by two federal courts of appeals judges with very similar political ideologies, but different judicial philosophies: J. …
A Free Speech Right To Impugn Judicial Integrity In Court Proceedings, Margaret C. Tarkington
A Free Speech Right To Impugn Judicial Integrity In Court Proceedings, Margaret C. Tarkington
Margaret C Tarkington
Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is …
Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel
Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel
Jeffrey W Stempel
In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.
Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …
The Bahd Of New England: Citing Shakespeare In The First Circuit, Eugene L. Morgulis
The Bahd Of New England: Citing Shakespeare In The First Circuit, Eugene L. Morgulis
Eugene L. Morgulis
This paper explores the ways in which judges in federal and state courts within the geographical region of the First Circuit have used the works and words of William Shakespeare to enhance their opinions. It not only exhaustively catalogs the plays and quotations that judges have cited since the 19th century, but it also analyzes the ways in they are used, discusses how they add or detract from opinions, and compares the use of Shakespeare to other authors commonly cited.
Administrative Law In The Roberts Court: The First Four Years, Robin K. Craig
Administrative Law In The Roberts Court: The First Four Years, Robin K. Craig
Robin K. Craig
Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law.
This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access …
Do Partisan Elections Of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations, Michael Leroy
Do Partisan Elections Of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations, Michael Leroy
Michael H LeRoy
Partisan election of judges is a growing concern as large contributions pour into judicial elections. State judges raised $157 million for their campaign funds from 1999 to 2006. Caperton v. A.T. Massey Co. Inc., 129 S.Ct. 2252 (2009), ruled that a state supreme court justice who cast the deciding vote for a company whose president contributed $2.3 million to his campaign violated the losing company’s due process rights. I examine whether partisan judicial elections affect court review of arbitrator rulings (called awards) in employment disputes. For this study, I added a new variable— method for selecting judges— to my database …
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. …
Evans, Walter, 1842-1923 (Sc 2018), Manuscripts & Folklife Archives
Evans, Walter, 1842-1923 (Sc 2018), Manuscripts & Folklife Archives
MSS Finding Aids
Finding aid and scans (Click on "Additional Files" below) for Manuscripts Small Collection 2018. Letters of Walter Evans, a judge of the U.S. District Court for the Western District of Kentucky, to Robert Ludlow Fowler, a New York jurist and author.
Can We Talk (With Or Without Beer)? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro
Can We Talk (With Or Without Beer)? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro
Adjoa A. Aiyetoro
This article is ultimately about healing the racial divide illustrated by the recent arrest of Henry Louis Gates. It expands on the scholarship of unconscious racism by exploring a trigger for unconscious racism that up to this point scholars have only alluded to: the language of race. It argues that society often censures an African descendant speaker who uses the language of race or racism. This censure occurs because many in American society have embraced the myth of a colorblind society. They believe that to assert otherwise and to question whether there are racial implications associated with a given action …
Judging In Bad Faith, Eric J. Miller
Judging In Bad Faith, Eric J. Miller
Eric J. Miller
Must judges apply the law “sincerely” or “in good faith?” H.L.A Hart famously argued that, if legal officials are to require conformity to the law from its subjects, they must accept the law as valid. Hart, however, stopped short of demanding that the personal motivations of legal officials match their public utterances.
In this article, I argue that a judge may be motivated to decide cases for reasons that have nothing to do with the law. Accordingly, the law is systematically de-centered from her calculation of how to decide. Legal norms operate only to constrain or justify her independently motivated …
In Search Of The Booker Revolution, Ryan W. Scott
In Search Of The Booker Revolution, Ryan W. Scott
Ryan W. Scott
In 2005, the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory. Arriving after eighteen years of complex and mandatory sentencing rules, the decision initially was heralded as revolutionary, both by critics and defenders of the federal Guidelines. But subsequent reports by the Sentencing Commission have shown few signs of a Booker revolution, revealing surprisingly minor changes. The existing research on post-Booker sentencing is incomplete, however, because it has not examined the response of individual judges to the decision. That omission is critical, given that the reduction of inter-judge disparity was the central purpose of …
Judging By The Numbers: An Empirical Study Of The Power Of Story, Kenneth D. Chestek
Judging By The Numbers: An Empirical Study Of The Power Of Story, Kenneth D. Chestek
Kenneth D. Chestek
The recent debate about whether “empathy” is a desirable trait in Supreme Court Justices begs a more fundamental question: are appellate court judges in fact persuaded by appeals to pathos? This article attempts to answer that question by reporting the results of an empirical study the author conducted that investigates whether narrative reasoning, or “stories,” are persuasive to appellate judges. It is the first rigorous study to ever confront this issue directly. The article first describes how the author wrote four test briefs, two on each side of a hypothetical lawsuit. One brief on each side was written as a …
Rights Translation And Remedial Disequilibration In Constitutional Criminal Procedure, Jennifer E. Laurin
Rights Translation And Remedial Disequilibration In Constitutional Criminal Procedure, Jennifer E. Laurin
Jennifer E. Laurin
Criminal procedure rights are widely understood both as individual constitutional guarantees and as conduct-regulating norms, enforcement of which guides the behavior of criminal justice actors. This regulatory dynamic of constitutional criminal procedure flows from both criminal and civil litigation, and as a consequence criminal procedure rights are shaped and adjudicated in recursive remedial regimes. Little notice has been paid, however, to the fact that the contours of criminal procedure rights are not consonant across the criminal and civil remedial regimes. Instead, courts in civil actions reshape criminal procedure doctrine in a manner that erects new, conflicting, and often more lenient …
The Rights Question, Bruce A. Antkowiak
The Rights Question, Bruce A. Antkowiak
Bruce A Antkowiak
The problem this article addresses will be well known to anyone who has taught or taken a course in Constitutional Law in the last three decades. When the subject turns to the related issues of selective incorporation, substantive due process and the proper interpretation of the Ninth Amendment, teachers of Constitutional Law cringe at the prospect of trying to explain sensibly what the Supreme Court itself has come to acknowledge is a most baffling conundrum: what are “rights,” where do they come from, are there more to be identified in the Constitutional universe, who is equipped to find them, and …
Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead
Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead
O. Carter Snead
Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.
This article examines the question of how scientific methods and principles can and …
Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel
Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel
Jeffrey W Stempel
In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …
Federal Demand Local Choice: Safeguarding The Notion Of Federalism In Education Law And Policy, Kamina A. Pinder
Federal Demand Local Choice: Safeguarding The Notion Of Federalism In Education Law And Policy, Kamina A. Pinder
Kamina A Pinder
As the ESEA undergoes its next transformation under a new presidential administration, this article explores the appropriate federal and state roles in promoting and enforcing laws related to academic achievement, and the appropriate judicial role in interpreting them. Part I of this article provides an overview of how the modern federal role in education law and policy was shaped through politics and litigation. Part II explores the drastic changes that No Child Left Behind brought to education federalism through the lens of cooperation, coercion (enforcement), and competition. It then analyzes the appropriate role of the executive branch in enforcing educational …
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman
Frank O. Bowman III
This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continues in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …