Courts Commons^™

#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez

Faculty Scholarship

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district …

The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg

Faculty Scholarship

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative …

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Christopher Robertson, Bernard Chao, Ian Farrell, Catherine Durso

Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If …

Submerged Precedent, Elizabeth Mccuskey

Faculty Scholarship

Numerous studies have pointed to the skewed picture of trial courts' workload, management, and disposition of cases that exists from examining Westlaw and Lexis opinions alone, akin to navigating the iceberg from its tip.⁴ But submerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions-putative precedent and not mere evidence of decision-making-that exist only on dockets. Submerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself not just trial courts' administration of it.

The existence of a submerged body …

Challenging The Randomness Of Panel Assignment In The Federal Courts Of Appeals, Adam S. Chilton, Marin K. Levy

Faculty Scholarship

A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so.

To determine whether the circuit courts utilize random assignment, we have created what we believe to be the largest dataset of panel assignments of those courts constructed to date. …

Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson

Faculty Scholarship

This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic …

Assessing The Effects Of Case Characteristics And Settlement Forums On Dispute Outcomes And Compliance, Neil Vidmar

Faculty Scholarship

McEwen and Maiman (1986) have disagreed with my claim that the case characteristic of admitted liability explains more variability in dispute outcome and compliance than whether the case was resolved through a mediation or adjudication forum. Those authors reanalyzed some of my data from an Ontario small claims court and concluded that forum type is the stronger variable. I take issue with them on a number of conceptual and methodological points. In my own reanalysis of the Ontario data I am able to demonstrate statistically that admitted liability is the stronger predictor of outcomes. I also discuss why this should …

The Small Claims Court: A Reconceptualization Of Disputes And An Empirical Investigation, Neil Vidmar

Faculty Scholarship

In this paper disputes are seen as varying along a dimension of admitted liability, that is, the extent to which defendants admit some obligation to plaintiffs; they may admit no liability, partial liability, or full liability. This conceptualization was used in an empirical study of a small claims court. The results paint a portrait of the court that is at variance with most of the previous literature. Consumer issues constitute a substantial portion of the court caseload. On average, defendants, including individual consumers, do well when they dispute claims. Among disputed cases, small rather than large businesses predominate. Prior literature …