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Articles 1 - 8 of 8
Full-Text Articles in Judges
Equilibrium, Adam Lamparello
Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill
Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill
Shlomo C. Pill
This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …
What’S Age Got To Do With It? Supreme Court Appointees And The Long Run Location Of The Supreme Court Median Justice, Matthew L. Spitzer
What’S Age Got To Do With It? Supreme Court Appointees And The Long Run Location Of The Supreme Court Median Justice, Matthew L. Spitzer
Matthew L Spitzer
For approximately the past 40 years Republican Presidents have appointed younger Justices than have Democratic Presidents. Depending on how one does the accounting, the average age difference will vary, but will not go away. This Article posits that Republicans appointing younger justices than Democrats may have caused a rightward shift in the Supreme Court. We use computer simulations to show that if the trend continues the rightward shift will likely increase. We also to produce some very rough estimates of the size of the ideological shift, contingent on the size of the age differential. In addition, we show that the …
Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Cover
Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Cover
Avidan Cover
Court opinions in the terrorism context are often distinguished by fact finding that relates to risk assessment. These risk assessments‑inherently policy decisions‑are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result courts apt to defer to the government and require less evidence in support of measures that curtail civil liberties. This Article takes …
Captured Legislatures And Public-Interested Courts, Patrick Luff
Captured Legislatures And Public-Interested Courts, Patrick Luff
Patrick A. Luff
According to public choice, the predominant paradigm of modern regulatory theory, legislative activity provides benefits to small, organized interests at the expense of larger groups. In practice, this means that interest groups are often able to benefit themselves at the expense of the public good. This model has been extended to the courts, which are described as implicit or explicit actors in the wealth-transfer process. Applying public-choice theory to the courts, however, overlooks the structural differences between the federal judiciary and Congress, as well as the insights of judicial decisionmaking theory. Not only do judges receive better and more complete …
“Nixon’S Sabotage”: How Politics Pushed The “Discriminatory Purpose” Requirement Into Equal Protection Law, Danieli Evans
“Nixon’S Sabotage”: How Politics Pushed The “Discriminatory Purpose” Requirement Into Equal Protection Law, Danieli Evans
Danieli Evans
This article describes the way that politics—resistance from the elected branches coupled with President Nixon appointing Chief Justice Burger—shaped the Court’s unanimous decision in Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971), a school desegregation case that played a crucial role in limiting the forms of state action considered unconstitutional discrimination. Chief Justice Burger defied longstanding Supreme Court procedure to assign himself the majority opinion even though he disagreed with the majority outcome. Justice Douglas alleged that he did this “in order to write Nixon’s view of freedom of choice into the law.” Justice Burger’s opinion laid the foundation for limiting …
Controversial Five-To-Four Supreme Court Decisions And The Majority Of One, Steven I. Friedland
Controversial Five-To-Four Supreme Court Decisions And The Majority Of One, Steven I. Friedland
Steven I. Friedland
Five-to-Four Supreme Court decisions in controversial cases have sparked public backlash in recent years, which has served to reframe the decisions as partisan politics. While judicial decision-making is designed to follow the doctrine of stare decisis, the view that Supreme Court justices have become hemmed in by their ideologies – with perhaps the notable exception of the swing vote of Justice Anthony Kennedy -- has been popularized in the media and blogs. While the Court’s decisions might be intersubjective, meaning bounded by moveable and socially constructed understandings, the real danger is for the justices to feed the perception that the …
The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun
The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun
Daniel M Braun
The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …