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Articles 61 - 77 of 77
Full-Text Articles in Judges
The Irrational Supreme Court, Michael I. Meyerson
The Irrational Supreme Court, Michael I. Meyerson
ExpressO
Abstract: The Irrational Supreme Court
The pejorative “irrational” is used to describe many defects in legal reasoning, but is generally not meant to be understood as a literal lack of rational thinking. Similarly, the “rational basis test” is not meant to determine whether a legislature is “not endowed with reason or understanding,” but rather if it has acted with some hidden, invidious motive. Incredibly, though, the Supreme Court has frequently issued truly “irrational opinions,” simply due to the fundamental nature of group decision-making.
Much has been written about Nobel Prize winner Kenneth Arrow’s “Impossibility Theorem,” which proved that, when faced …
Book Review: Forensic Linguistics, Dru Stevenson
Book Review: Forensic Linguistics, Dru Stevenson
ExpressO
Review of John Gibbons' text "Forensic Linguistics"
Jury Trials In Japan, Robert M. Bloom
Jury Trials In Japan, Robert M. Bloom
ExpressO
The Japanese are seeking to involve their citizens in the judicial system. They are also establishing a check on the power of the judiciary. Towards these goals, they have enacted legislation to create jury trials. These remarkable ambitions envision adopting a mixed-jury system, slated to take effect in 2009. In this mixed-jury system, judges and citizens participate together in the jury deliberation.
This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. The article explores psychological theories surrounding collective judgment and how dominant individuals influence group …
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
University of San Diego Public Law and Legal Theory Research Paper Series
This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or …
Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
University of San Diego Public Law and Legal Theory Research Paper Series
In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own …
A Tournament Of Virtue, Lawrence B. Solum
A Tournament Of Virtue, Lawrence B. Solum
University of San Diego Public Law and Legal Theory Research Paper Series
How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should …
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
University of San Diego Public Law and Legal Theory Research Paper Series
Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …
The Role Of Purposivism In The Delegation Of Rulemaking Authority To The Courts, Michael Rosensaft
The Role Of Purposivism In The Delegation Of Rulemaking Authority To The Courts, Michael Rosensaft
ExpressO
The courts are often used by Congress as a “political lightning rod,” when Congress cannot decide how to resolve an issue. Congress relies on administrative agencies for their expertise, and it also makes sense for Congress to delegate some rulemaking authority to the courts, relying on a court’s expertise in developing caselaw in an incremental basis. However, this authority should not be lightly implied. A court can tell that Congress has delegated rulemaking authority to it when the purpose of the statute is clear and the text is broadly worded. It thus makes sense in these cases that purposivism should …
A Reply--The Missing Portion, Pierre Schlag
What Do We Mean By "Judicial Independence"?, Stephen B. Burbank
What Do We Mean By "Judicial Independence"?, Stephen B. Burbank
All Faculty Scholarship
In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …
The Architecture Of Judicial Independence, Stephen B. Burbank
The Architecture Of Judicial Independence, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Justice Stephen Breyer: Purveyor Of Common Sense In Many Forums, Jeffrey Lubbers
Justice Stephen Breyer: Purveyor Of Common Sense In Many Forums, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel
The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel
Scholarly Works
No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …
Federal Right Jurisdiction And The Declaratory Remedy, Herman L. Trautman
Federal Right Jurisdiction And The Declaratory Remedy, Herman L. Trautman
Vanderbilt Law Review
Why should we have federal district courts? What should be their primary function? These questions are fundamental to the formulation of a rational basis for the distribution of judicial power between state courts and the trial courts of the federal government.
Our American federal system seeks as a constant objective an appropriate division of governmental power between a national unit, which deals with problems requiring uniform treatment, and state units, which have responsibility for problems depending more upon local conditions. Applying the principle to the federal district courts, it seems clear that their primary function should be to adjudicate federal …
Book Review. The American Doctrine Of Judicial Supremacy, 2nd Ed. By C. G. Haines, Frank Edward Horack Jr.
Book Review. The American Doctrine Of Judicial Supremacy, 2nd Ed. By C. G. Haines, Frank Edward Horack Jr.
Articles by Maurer Faculty
No abstract provided.