Judges Commons^™

Certiorari In Patent Cases, Christa J. Laser

Law Faculty Articles and Essays

In the decade from 2010 to 2019, the Supreme Court has decided more patent law cases than in the prior three decades combined. A higher percentage of its docket has been patent cases--5.45%--than in any decade in the last century. A number of scholars have advanced theories of why this rate of review of patent cases has increased and provided quantitative analyses. Yet no scholarship to date has used qualitative data to investigate why the Supreme Court’s patent docket is increasing and what factors the Supreme Court considers in its review of patent cases. This paper shares statistics of the …

The Faith And Morals Of Justice Antonin Scalia, David Forte

Law Faculty Articles and Essays

It is because of Justice Scalia's suspicion of philosophy and of history that he becomes an outspoken textualist. But why should text carry greater authority? Why should the written word, rather than evolving tradition, be of higher authority, particularly to a Roman Catholic? To understand Antonin Scalia's affirmation of the centrality of text, we must, as many already have, seek to find out how the man viewed his religion and how he practiced it.

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 …

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 …

The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment's "rule requiring notice."

Congress authorized these "sneak and peek" warrants in the USA Patriot Act of 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5601 in 2012, suggesting that "sneak and peek" searches are becoming alarmingly common. In fact, it is not at all clear whether true "sneak …

Selecting The Very Best: The Selection Of High-Level Judges In The United States, Europe And Asia, Christa J. Laser, Tefft Smith, Michael Fragoso, Christopher Jackson, Gregory Wannier

Law Faculty Articles and Essays

This paper has been prepared by Kirkland & Ellis LLP for the Due Process of Law Foundation (“DPLF”), an organization dedicated to promoting and strengthening the rule of law and the respect for human rights in the Americas. The goal is to provide further stimulus to the enhancement of due process and the rule of law in Latin America by encouraging the transparent, merit-based selection and appointment of competent, independent, and impartial judges. An independent and impartial judiciary is an essential precondition to the effective operation of the rule of law, with due process for all. This, in turn, is …

Stare Decisis In The Inferior Courts Of The United States, Joseph Mead

Law Faculty Articles and Essays

While circuit courts are bound to fallow circuit precedent under "law of the circuit" the practice among federal district courts is more varied and uncertain, routinely involving little or no deference to their own precedent. I argue that the different hierarchical levels and institutional characteristics do not account for the differences in practices between circuit and district courts. Rather, district courts can and should adopt a "law of the district" similar to that of circuit courts. Through this narrow proposal, I explore the historical stare decisis practices in federal courts that are not Supreme.

Right To Talk: Has Justice Antonin Scalia Compromised His Objectivity With A Public Remark?, Lloyd B. Snyder

Law Faculty Articles and Essays

With two assisted suicide cases scheduled for argument before the Supreme Court this term, Justice Antonin Scalia already has publicly staked out his position on the issue. While sentiments he expressed in 1990 in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, are well-known, Scalia told an audience at Catholic University late last year that it is "absolutely plain there is no [constitutional] right to die." Is it proper for sitting judges to make such statements? While no one would deny Scalia his First Amendment right to say what he pleases, that hardly quells concerns about the advisability …

A Government By Judges: An Historical Re-View, Michael Henry Davis

Law Faculty Articles and Essays

In 1921, Edouard Lambert, a professor of law at Lyon specializing in comparative studies and founder of an Institute of Comparative Law there, published a book, Le Gouvernement des judges et la lutte contra la legislation sociale aux Etats-Unis, thus singlehandedly creating the phrase, a "government of judges", to denote a truly unconstrained system of judicial review which could not be limited even by constitutional amendment. The phrase quickly entered the parlance of French public law and even that of popular culture, deriving much of its force, no doubt, from the historical French aversion to a strong judiciary, eventually becoming …

The Law/Politics Distinction, The French Conseil Constitutionnel, And The U.S. Supreme Court, Michael H. Davis

Law Faculty Articles and Essays

A dispute burns across the landscape of French constitutional law regarding the juridical nature of the French constitutional "Supreme Court", the Conseil constitutionnel: is it a court? Both French and American scholars have claimed that, despite superficial similarities between the U.S. Supreme Court and the French Conseil constitutionnel, the American system of judicial review "can have no counterpart in the French system", that French legal and political theory is inconstistent with an effective supreme court, that there is "no possibility" that the French and American systems could surmount this "major difference", and that the Conseil is simply not a "true …