Judges Commons^™

Mooting Unilateral Mootness, Scott T. Macguidwin

Michigan Law Review

Several situations cause a case to be moot. These include settlement agreements, party collusion, changes in litigant status, and extrinsic circumstances thwarting the court from granting any relief. The final reason is unilateral mootness—when a defendant ends a lawsuit against a plaintiff’s wishes by giving them everything for which they ask. In practice, this allows defendants to strategically stop lawsuits when it is clear they are not going to win. By doing so, they prevent the court from handing down adverse precedent and preserve the opportunity to engage in similar behavior with impunity. Courts have established a series of mootness …

Catch And Kill Jurisdiction, Zachary D. Clopton

Michigan Law Review

In catch and kill journalism, a tabloid buys a story that could be published elsewhere and then deliberately declines to publish it. In catch and kill jurisdiction, a federal court assumes jurisdiction over a case that could be litigated in state court and then declines to hear the merits through a nonmerits dismissal. Catch and kill journalism undermines the free flow of information. Catch and kill jurisdiction undermines the enforcement of substantive rights. And, importantly, because catch and kill jurisdiction relies on jurisdictional and procedural law, it is often able to achieve ends that would be politically unpalatable by other …

Racial Revisionism, Shaun Ossei-Owusu

Michigan Law Review

A Review of The Enigma of Clarence Thomas. by Corey Robin.

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Michigan Law Review

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

The Passion Of John Paul Stevens, Linda Greenhouse

Michigan Law Review

Review of John Paul Stevens' The Making of a Justice: Reflections on My First 94 Years.

Textualism For Realists, Ian Samuel

Michigan Law Review

Review of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.

The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart

Michigan Law Review

New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their …

The Pragmatism Of Interpretation: A Review Of Richard A. Posner, The Federal Judiciary, Amul R. Thapar, Benjamin Beaton

Michigan Law Review

A review of Richard A. Posner, The Federal Judiciary.

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

Arguing With Friends, William Baude, Ryan D. Doerfler

Michigan Law Review

Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.

Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the …

Corpus Linguistics: Misfire Or More Ammo For The Ordinary - Meaning Canon?, John D. Ramer

Michigan Law Review

Scholars and judges have heralded corpus linguistics—the study of language through collections of spoken or written texts—as a novel tool for statutory interpretation that will help provide an answer in the occasionally ambiguous search for “ordinary meaning” using dictionaries. In the spring of 2016, the Michigan Supreme Court became the first to use corpus linguistics in a majority opinion. The dissent also used it, however, and the two opinions reached different conclusions. In the first true test for corpus linguistics, the answer seemed to be just as ambiguous as before.

This result calls into question the utility of corpus linguistics. …

The New Front In The Clean Air Wars: Fossil-Fuel Influence Over State Attorneys General- And How It Might Be Checked, Eli Savit

Michigan Law Review

Review of Struggling for Air: Power and the "War On Coal" by Richard L. Revesz and Jack Leinke, and Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America by Paul Nolette.

Justice Scalia And The Idea Of Judicial Restraint, John F. Manning

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

The Tragedy Of Justice Scalia, Mitchell N. Berman

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

Linnaean Taxonomy And Globalized Law, Ronald J. Krotoszynski Jr.

Michigan Law Review

Review of The Court and the World: American Law and the New Global Realities by Stephen Breyer.

Foreword: The Books Of Justices, Linda Greenhouse

Michigan Law Review

For this Michigan Law Review issue devoted to recently published books about law, I thought it would be interesting to see what books made an appearance in the past year’s work of the Supreme Court. I catalogued every citation to every book in those forty opinions in order to see what patterns emerged: what books the justices cited, which justices cited which books, and what use they made of the citations. To begin with, I should define what I mean by “books". For the purposes of this Foreword, I excluded some types of reading matter that may have a book-like …

Amendment Creep, Jonathan L. Marshfield

Michigan Law Review

To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have …

Thin Rationality Review, Jacob Gersen, Adrian Vermeule

Michigan Law Review

Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an …

A Simple Theory Of Complex Valuation, Anthony J. Casey, Julia Simon-Kerr

Michigan Law Review

Complex valuations of assets, companies, government programs, damages, and the like cannot be done without expertise, yet judges routinely pick an arbitrary value that falls somewhere between the extreme numbers suggested by competing experts. This creates costly uncertainty and undermines the legitimacy of the court. Proposals to remedy this well-recognized difficulty have become increasingly convoluted. As a result, no solution has been effectively adopted and the problem persists. This Article suggests that the valuation dilemma stems from a misconception of the inquiry involved. Courts have treated valuation as its own special type of inquiry distinct from traditional fact-finding. We show …

Six Overrulings, Andrew Koppelman

Michigan Law Review

John Paul Stevens, who retired in 2010 at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books, gives high-profile interviews, wrote a memoir of the chief justices he has known, and has now written a second book. Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional …

Judge Posner's Simple Law, Mitchell N. Berman

Michigan Law Review

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …

Jury Voting Paradoxes, Jason Iuliano

Michigan Law Review

The special verdict is plagued by two philosophical paradoxes: the discursive dilemma and the lottery paradox. Although widely discussed in the philosophical literature, these paradoxes have never been applied to jury decision making. In this Essay, I use the paradoxes to show that the special verdict’s vote-reporting procedures can lead judges to render verdicts that the jurors themselves would reject. This outcome constitutes a systemic breakdown that should not be tolerated in a legal system that prides itself on the fairness of its jury decision-making process. Ultimately, I argue that, because the general verdict with answers to written questions does …

What Books On Law Should Be, Richard A. Posner

Michigan Law Review

I have thought it might be useful to our profession, and appropriate to a foreword to a collection of reviews of newly published books on law, to set forth some ideas on how books can best serve members of the different branches of the legal profession — specifically judges, practicing lawyers, law students, and academic lawyers — plus persons outside the legal profession who are interested in law. I am not interested in which already published books should be retained and which discarded, but in what type of book about law should be written from this day forward. I will …

Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts, Aaron P. Brecher

Michigan Law Review

Uberfans of the federal judiciary owe a lot to David Dorsen. His illuminating biography of Judge Henry Friendly is a fitting tribute to the contributions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well, and most authors choose to focus on Supreme Court justices. But Henry Friendly, Greatest Judge of His Era is an excellent source of information on Friendly’s life and, far more important, his views on the law and his relationships with some of the most fascinating figures …

Judicial Independence And Social Welfare, Michael D. Gilbert

Michigan Law Review

Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve cases impartially and in accordance with law. Yet independence comes with a hazard. Precisely because they are independent, judges can ignore law and pursue private agendas. For two centuries, scholars have debated those ideas and the underlying tradeoff: independence versus accountability. They have achieved little consensus, in part because independence raises difficult antecedent questions. We cannot decide how independent to make a judge until we agree on what a judge is supposed to do. That depends on one’s views about …

Justice Brennan: Legacy Of A Champion, Dawn Johnsen

Michigan Law Review

During the 1980s, when the Court's approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices' values and views, and bemoaned the public's utter lack of attention to the Court and judicial appointments. President Ronald Reagan's Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the "critical" yet "often overlooked" "values and philosophies" of federal judges. Professor Laurence Tribe similarly introduced a historical analysis of the Court's vital role by describing Justices' "powerful, if often …

Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron

Michigan Law Review

Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that there are good rule-of-law arguments in favor of stare decisis. This Article considers one possible good rule-of-law argument. It suggests that we should approach stare decisis in a layered way, looking at what the rule of law requires of the various judges involved in the development of a precedent. One rule-of-law principle, the principle of constancy, counsels against lightly overturning such precedents as there are. But that is not in …

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Michigan Law Review

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in …

When Good Enough Is Not Good Enough, Karl Stampfl

Michigan Law Review

According to conventional wisdom, the state of statutory interpretation is not strong. Its canons of construction-noscitur a sociis, ejusdem generis, expressio unius est exclusio alterius, reddendo singula singulis, and more than a few others-are a morass of Latin into which many law students and even judges have sunk. Its practitioners are unprincipled. Its doctrines are muddied. Its victims are many. In short, the system is broken-unless, of course, it is not. In The Language of Statutes: Laws and Their Interpretation, Lawrence M. Solan slices through the rhetoric, the fighting, and the law-review-article histrionics in an attempt to show that the …

The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin

Michigan Law Review

The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are …