Judges Commons^™

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.

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 …

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

Neal E. Devins

No abstract provided.

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 …

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 …

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.

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

Sean Farhang

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 precedential lawmaking on class certification under Rule 23. We find that the partisan 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 more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with …

To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller

Russell A. Miller

Justice Breyer's new book The Court and the World presents a number of productive challenges. First, it provides an opportunity to reflect generally on extra-judicial scholarly activities. Second, it is a major and important - but also troubling - contribution to debates about comparative law broadly, and the opening of domestic constitutional regimes to external law and legal phenomena more specifically. I begin by suggesting a critique of the first of these points. These are merely some thoughts on the implications of extra-judicial scholarship. The greater portion of this essay, however, is devoted to a reading of Justice Breyer's book, …

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

James T Gathii

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …