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Thinking Like A Lawyer About Legislation: Implementing Legislative Decision Theory Through Improved Citation, Hugh L. Brady
Thinking Like A Lawyer About Legislation: Implementing Legislative Decision Theory Through Improved Citation, Hugh L. Brady
Journal of Legislation
The Texas Supreme Court in the late 1990s, in two significant cases, arguably interpreted statutes to achieve a result directly opposite to the Texas Legislature’s decision to adopt a specific text. Why do lawyers and judges struggle when reading and applying legislation, especially when using enactment history? Under Professor Victoria Nourse’s legislative decision theory, the struggle is attributable to the fact that lawyers do not consider the legislature’s institutional rules and procedures to find the proper text to interpret a statute in light of the available legislative evidence. Wider implementation of her theory is hampered by current legal citation practices …
Judges As Politicians: The Enduring Tension Of Judicial Elections In The Twenty-First Century, Richard Lorren Jolly
Judges As Politicians: The Enduring Tension Of Judicial Elections In The Twenty-First Century, Richard Lorren Jolly
Notre Dame Law Review Reflection
Elections transform the basis of judicial legitimacy. Whereas a permanently appointed judiciary finds support in its supposed neutrality, the democratic judiciary demands responsiveness. Yet while this is obvious to scholars, the electorate, and most judges—and is in fact confirmed by much statistical data—the Supreme Court and others continue to insist that judicial campaigns can be sculpted to ensure robust democratic debate without compromising the bench’s impartiality. This Essay rejects the notion that the court can be both democratic and disinterested. It reviews the volatile history of judicial elections as well as the modern web of distinctions between protected and proscribable …
The Missing Justice In Coleman V. Miller, Barry Cushman
The Missing Justice In Coleman V. Miller, Barry Cushman
Journal Articles
All nine of the sitting justices took part in the 1939 case of Coleman v. Miller, which concerned whether the Kansas legislature had ratified the pending Child Labor Amendment. One of the issues in the case was decided by a vote of 5-4, while another was resolved by a vote of 7-2. With respect to a third issue, however, Chief Justice Charles Evans Hughes reported that it presented “a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.”
Scholars understandably have been puzzled by how a decision in which a full …
The Role Of The Law Review In The Tradition Of Judicial Scholarship, Kenneth F. Ripple
The Role Of The Law Review In The Tradition Of Judicial Scholarship, Kenneth F. Ripple
Journal Articles
This article explores one of the most important sources of judicial education, the law review. Part I first examines, by way of introduction, why continued intellectual growth is so important to the American jurist of today. It then sets forth the growth of the law review as an institution within the legal profession. Part II examines the various roles that law reviews play traditionally in the intellectual life of a judge and suggests, with respect to each, certain improvements in the judge-law review relationship designed both to enhance the effectiveness of the law review as an intellectual companion and to …
The Judge And The Academic Community, Kenneth F. Ripple
The Judge And The Academic Community, Kenneth F. Ripple
Journal Articles
In the inaugural essay of this series, Judge Coffin described this unique effort of the editors of the Ohio State Law Journal as an opportunity for judges to engage in "reflective self-examination" in a time of "remorselessly increasing pressures" on the judicial way of life as it has existed since the founding of the Republic. When any institution—public or private—is experiencing great stress and, consequently, is in danger of undergoing cataclysmic change, the quality of its relationships with the other institutions with which it regularly interacts can determine its ability to deal effectively with the pressures. If those other institutions …