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Articles 1 - 21 of 21
Full-Text Articles in Judges
Why Indiana Harbor Is The Worst Torts Decision In American History
Why Indiana Harbor Is The Worst Torts Decision In American History
Connecticut Law Review
Judge Richard A. Posner’s opinion for the Seventh Circuit in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., concerning a spill of the hazardous chemical acrylonitrile at a railyard near Chicago, is considered the definitive statement on the abnormally dangerous activity doctrine. That doctrine (also known as the ultrahazardous activity doctrine) holds that one who engages in an abnormally dangerous activity is strictly liable for harm caused to others, regardless of negligence. However, Judge Posner’s opinion suggests that strict liability should rarely displace the negligence standard, even for commercial activities that externalize high degrees of risk. That approach leads …
For The Right Reasons: The Rules Of The Game For Institutionalists, Rick Joslyn
For The Right Reasons: The Rules Of The Game For Institutionalists, Rick Joslyn
Connecticut Law Review
The United States judiciary demonstrates better than any other constitutional institution the inherent fragility of American democracy. There is a reasonable debate to be had over when and exactly how the Supreme Court squandered the precious legitimacy on which its very existence rests. Yet, today, observers must confront with renewed urgency the impact crater of discontent that has been driven into the institution. The Court has been weaponized, politicized, and villainized; it has been lionized for its institutional heft. But increasingly loud voices have called for foundational reforms. There is a scramble for solutions to check the Court’s newly-emboldened right-wing …
Roberts, Rules, And Rucho, Chad M. Oldfather, Sydney Star
Roberts, Rules, And Rucho, Chad M. Oldfather, Sydney Star
Connecticut Law Review
This Article arises out of a symposium exploring the connection between the political question doctrine and judicial legitimacy in the wake of the Supreme Court’s decision in Rucho v. Common Cause, and more specifically a panel devoted to the implications of Rucho for theories of judgment and judging. Chief Justice Roberts’s majority opinion in Rucho emphasizes the need for judicial action to “be governed by standard, by rule” and to be “principled, rational, and based on reasoned distinctions.” Yet our analysis—which compares and contrasts the arguments, reasoning, and rhetoric in Rucho with their counterparts in the Chief Justice’s other opinions—suggests …
The Politics Of Lawyer Regulation: The Case Of Malpractice Insurance, Leslie C. Levin
The Politics Of Lawyer Regulation: The Case Of Malpractice Insurance, Leslie C. Levin
Faculty Articles and Papers
This Article examines the politics of lawyer regulation and considers why some states will adopt lawyer regulation that protects the public, when others will not. It uses the debates over how to regulate uninsured lawyers as a lens through which to examine the question. Clients often cannot recover damages from uninsured lawyers who commit malpractice, even when those lawyers cause serious harm. Yet only two states require that lawyers carry malpractice insurance. This Article uses case studies to examine the ways in which six states recently have addressed the issue of uninsured lawyers to understand this regulatory failure. It uses …
The End Of Mandatory State Bars?, Leslie C. Levin
The End Of Mandatory State Bars?, Leslie C. Levin
Faculty Articles and Papers
The country’s thirty-one mandatory state bar associations are facing an existential threat following the U.S. Supreme Court’s decision in Janus v. ACSME, 138 S. Ct. 2448 (2018). In Janus, the Court considered the constitutionality of compelling public employees to pay agency fees to a labor union. In the process, the Court effectively upended the reasoning of earlier Supreme Court precedent that enabled mandatory state bars to compel bar dues payments from objecting lawyers and expend dues to fund traditional bar functions. Mandatory state bars—which function both as regulators and as traditional bar associations—are now defending themselves against claims in several …
When Judges Have Reasons Not To Give Reasons - A Comparative Law Approach, Mathilde Cohen
When Judges Have Reasons Not To Give Reasons - A Comparative Law Approach, Mathilde Cohen
Faculty Articles and Papers
Influential theories of law have celebrated judicial reasongiving as furthering a host of democratic values, including judges' accountability, citizens'participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reasongiving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between reasons for and …
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya
Faculty Articles and Papers
This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read Title …
Some Thoughts On Herb Johnson's Favorite Court, R. Kent Newmyer
Some Thoughts On Herb Johnson's Favorite Court, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.
Getting Right With The Great Chief Justice, R. Kent Newmyer
Getting Right With The Great Chief Justice, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.
A Judge For All Seasons, R. Kent Newmyer
A Judge For All Seasons, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.
John Marshall, Mcculloch V. Maryland, And The Southern States' Rights Tradition, R. Kent Newmyer
John Marshall, Mcculloch V. Maryland, And The Southern States' Rights Tradition, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.
John Marshall As An American Original: Some Thoughts On Personality And Judicial Statesmanship, R. Kent Newmyer
John Marshall As An American Original: Some Thoughts On Personality And Judicial Statesmanship, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.
Chief Justice Marshall In The Context Of His Times, R. Kent Newmyer
Chief Justice Marshall In The Context Of His Times, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.
Understanding Disagreement, The Root Issue Of Jurisprudence: Applying Wittgenstein To Positivism, Critical Theory, And Judging, Thomas Morawetz
Understanding Disagreement, The Root Issue Of Jurisprudence: Applying Wittgenstein To Positivism, Critical Theory, And Judging, Thomas Morawetz
Faculty Articles and Papers
No abstract provided.
Groups In Perspectives, Carol Weisbrod
Groups In Perspectives, Carol Weisbrod
Faculty Articles and Papers
No abstract provided.
The Epistemology Of Judging: Wittgenstein And Deliberative Practices, Thomas Morawetz
The Epistemology Of Judging: Wittgenstein And Deliberative Practices, Thomas Morawetz
Faculty Articles and Papers
No abstract provided.
Coping With Uncertainty In The Law, Ellen Ash Peters
Coping With Uncertainty In The Law, Ellen Ash Peters
Faculty Articles and Papers
No abstract provided.
A Utilitarian Theory Of Judicial Decision, Thomas Morawetz
A Utilitarian Theory Of Judicial Decision, Thomas Morawetz
Faculty Articles and Papers
No abstract provided.
Justice Joseph Story, The Charles River Bridge Case And The Crisis Of Republicanism, R. Kent Newmyer
Justice Joseph Story, The Charles River Bridge Case And The Crisis Of Republicanism, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.
Justice Joseph Story On Circuit And A Neglected Phase Of American Legal History, R. Kent Newmyer
Justice Joseph Story On Circuit And A Neglected Phase Of American Legal History, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.
On Assessing The Court In History: Some Comments On The Roper And Burke Articles, R. Kent Newmyer
On Assessing The Court In History: Some Comments On The Roper And Burke Articles, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.