Judges Commons^™

The Vanishing Common Law Judge, Neal Devins, David Klein

Neal E. Devins

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in …

The Majoritarian Rehnquist Court?, Neal Devins

Neal E. Devins

No abstract provided.

The D'Oh! Of Popular Constiutitonalism, Neal Devins

Neal E. Devins

No abstract provided.

Smoke, Not Fire, Neal Devins

Neal E. Devins

No abstract provided.

Ideological Imbalance: Why Democrats Usually Pick Moderate-Liberal Justices And Republicans Usually Pick Conservative Ones, Lawrence Baum, Neal Devins

Neal E. Devins

No abstract provided.

Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins

Neal E. Devins

This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive …

Federalist Court: How The Federalist Society Became The De Facto Selector Of Republican Supreme Court Justices, Lawrence Baum, Neal Devins

Neal E. Devins

No abstract provided.

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Tara L. Grove

No abstract provided.

The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove

Tara L. Grove

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” …

The Power Of "So-Called Judges", Tara Leigh Grove

Tara L. Grove

No abstract provided.

Constitutional Law Leading Cases: Judicial Elections, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Competition And Market Failure In The Antitrust Jurisprudence Of Justice Stevens, Alan J. Meese

Alan J. Meese

No abstract provided.

The Allen Instruction In Criminal Cases: Is The Dynamite Charge About To Be Permanently Defused?, Paul Marcus

Paul Marcus

No abstract provided.

Judging In The Age Of Technology, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Does The 'Mcconnell Principle' Make Sense?, Jeffrey Bellin

Jeffrey Bellin

No abstract provided.

How Merrick Garland Could Help Heal America, Jeffrey Bellin

Jeffrey Bellin

No abstract provided.

Why The Supreme Court Cares About Elites, Not The American People, Lawrence Baum, Neal Devins

Neal E. Devins

Supreme Court Justices care more about the views of academics, journalists, and other elites than they do about public opinion. This is true of nearly all Justices and is especially true of swing Justices, who often cast the critical votes in the Court’s most visible decisions. In this Article, we will explain why we think this is so and, in so doing, challenge both the dominant political science models of judicial behavior and the significant work of Barry Friedman, Jeffrey Rosen, and others who link Supreme Court decision making to public opinion.

Finding Data And Statistics On Judges, Leslie A. Street

Leslie A. Street

No abstract provided.

Congress And The Making Of The Second Rehnquist Court, Neal Devins

Neal E. Devins

No abstract provided.

'"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng

Neal E. Devins

This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze …

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

If The Judicial Confirmation Process Is Broken, Can A Statute Fix It?, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Judicial Activism And The Problem Of Induction, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

A comment on Suzanna Sherry’s "Why We Need More Judicial Activism."

Hierarchy And Heterogeneity: How To Read A Statute In A Lower Court, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

Is statutory interpretation an activity that all courts should perform the same way? Courts and commentators implicitly so conclude. I believe that conclusion is wrong. Statutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court. The U.S. Supreme Court is not the model all other courts should emulate.

I identify three kinds of institutional differences between courts that bear on which interpretive methods are appropriate: (1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic pedigree, particularly as reflected …

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes …

Following Lower-Court Precedent, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

This Article examines the role of lower-court precedent in the US Supreme Court’s decisions. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, this Article analyzes a variety of potential reasons …

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Aaron-Andrew P. Bruhl

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Susan S. Fortney

No abstract provided.

Perpetual Dissents, Allison Orr Larsen

Allison Orr Larsen

No abstract provided.

Judicial Fact-Finding In An Age Of Rapid Change: Creative Reforms From Abroad, Allison Orr Larsen

Allison Orr Larsen

No abstract provided.