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The Remarkable First 50 Women Law Graduates Of St. Mary’S University: Part One, Regina Stone-Harris Oct 2019

The Remarkable First 50 Women Law Graduates Of St. Mary’S University: Part One, Regina Stone-Harris

St. Mary's Law Journal

Abstract forthcoming


Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz Jul 2019

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at ...


Overruling Mcculloch?, Mark A. Graber Jul 2019

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism ...


M'Culloch In Context, Mark R. Killenbeck Jul 2019

M'Culloch In Context, Mark R. Killenbeck

Arkansas Law Review

M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example ...


Mcculloch At 200, David S. Schwartz Jul 2019

Mcculloch At 200, David S. Schwartz

Arkansas Law Review

March 6, 2019 marked the 200th anniversary of the Supreme Court’s issuance of its decision in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States, the successor to Alexander Hamilton’s national bank. McCulloch v. Maryland involved a constitutional challenge by the Second Bank of the United States to a Maryland tax on the banknotes issued by the Bank’s Baltimore branch. The tax was probably designed to raise the Second Bank’s cost of issuing loans and thereby disadvantage it relative to Maryland’s own state-chartered banks. Marshall’s opinion famously rejected the ...


Oral Argument Tactics On The Supreme Court Bench: A Comparative Analysis Of Verbal Tools Used By Justices Sotomayor, Kagan, And Gorsuch, Corinne Cichowicz Apr 2019

Oral Argument Tactics On The Supreme Court Bench: A Comparative Analysis Of Verbal Tools Used By Justices Sotomayor, Kagan, And Gorsuch, Corinne Cichowicz

Politics Honors Papers

Oral argument scholars like Adam Feldman have categorized the Supreme Court justices’ behavior during oral argument using the approach-based method, labeling each as one-sided, even-handed, or restrained. This approach is too narrowly constructed. Scholars sometimes categorize justices in terms of the tools they use, which include questions, hypotheticals, declarations, interruptions, tone of voice, and silence (Feldman 2018a). Neither of these methods alone produce a nuanced analysis of each justice’s actions during an individual case or across a Term. As the Court’s composition and dynamics are continuously changing, scholarship on oral argument needs to adapt to become more effective ...


Judging Well, Francis J. Mootz Iii Jan 2019

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory, Miriam Galston Jan 2019

Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory, Miriam Galston

Washington University Jurisprudence Review

Much has been written about Obergefell v. Hodges, holding that

same-sex marriage is protected by the Fourteenth Amendment. Virtually

all commentators view the decision as an example of an increasingly

polarized Supreme Court.

This article challenges that characterization by analyzing Kennedy’s

majority opinion and Roberts’ dissent in Obergefell in light of the legal

theories of H. L. A. Hart and Lon Fuller. The article argues that, from a

legal theory perspective, Kennedy and Roberts exhibit numerous, often

surprising commonalities. In addition, Kennedy’s arguments seem to

accurately reflect the methodology he explicitly endorses. Roberts, in

contrast, seems to exaggerate ...


Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...