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Articles 1 - 27 of 27
Full-Text Articles in Jurisprudence
Movement Judges, Brandon Hasbrouck
Movement Judges, Brandon Hasbrouck
Scholarly Articles
Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable …
Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes
Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes
Washington and Lee Law Review
For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might …
Settled Law, G. Alexander Nunn, Alan M. Trammell
Settled Law, G. Alexander Nunn, Alan M. Trammell
Scholarly Articles
“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.
We contend that settled law is actually a meaningful concept, even …
The Dilemma Of Interstatutory Interpretation, Anuj C. Desai
The Dilemma Of Interstatutory Interpretation, Anuj C. Desai
Washington and Lee Law Review
Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) “on the same subject,” the court …
Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt
Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt
Washington and Lee Law Review Online
In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial …
Random Chance Or Loaded Dice: The Politics Of Judicial Designation, Todd C. Peppers, Katherine Vigilante, Christopher Zorn
Random Chance Or Loaded Dice: The Politics Of Judicial Designation, Todd C. Peppers, Katherine Vigilante, Christopher Zorn
Scholarly Articles
Here, we take advantage of a unique characteristic of the procedures of the U.S. courts of appeals—the discretion held by chief judges to designate district court judges to three-judge appellate panels— to examine empirically the importance of oversight and judicial hierarchy on judges' behavior in those courts. Specifically, we examine the extent to which decisions about the policy preferences of designated judges vary systematically with the ideological tenor of the chief judge himself, the court as a whole, and the U.S. Supreme Court. More simply put, we ask: are district court judges selected to sit on appeals court panels simply …
Law Clerk Influence On Supreme Court Decision Making: An Empirical Assessment, Todd C. Peppers, Christopher Zorn
Law Clerk Influence On Supreme Court Decision Making: An Empirical Assessment, Todd C. Peppers, Christopher Zorn
Scholarly Articles
Here, we undertake the first effort at assessing the existence and extent of law clerk influence in the U.S. Supreme Court. Drawing upon original survey data on the political ideology of 532 former law clerks, we evaluate the extent to which both the Justice's personal policy preferences and those of his or her law clerks exert an independent influence on the Justice's votes. While our results are preliminary, they nonetheless support the contention that--over and above "selection effects" due to Justices choosing like-minded clerks--clerks' ideological predilections exert an additional, and not insubstantial, influence on the Justices' decisions on the merits. …
The Decision Maker Matters: An Empirical Examination Of The Way The Role Of The Judge And The Jury Influence Death Penalty Decision-Making, William J. Bowers, Wanda D. Foglia, Jean E. Giles, Michael E. Antonio
The Decision Maker Matters: An Empirical Examination Of The Way The Role Of The Judge And The Jury Influence Death Penalty Decision-Making, William J. Bowers, Wanda D. Foglia, Jean E. Giles, Michael E. Antonio
Washington and Lee Law Review
No abstract provided.
Take A Letter, Your Honor: Outing The Judicial Epistemology Of Hart V. Massanari, Penelope Pether
Take A Letter, Your Honor: Outing The Judicial Epistemology Of Hart V. Massanari, Penelope Pether
Washington and Lee Law Review
No abstract provided.
Fourth Circuit Publication Practices, Carl Tobias
Fourth Circuit Publication Practices, Carl Tobias
Washington and Lee Law Review
No abstract provided.
Commentary: Unpublication And The Judicial Concept Of Audience, Joan M. Shaughnessy
Commentary: Unpublication And The Judicial Concept Of Audience, Joan M. Shaughnessy
Washington and Lee Law Review
No abstract provided.
Publishing Dissent, Arthur J. Jacobson
Publishing Dissent, Arthur J. Jacobson
Washington and Lee Law Review
No abstract provided.
Judges As Trustees: A Duty To Account And An Opportunity For Virtue, Sarah M. R. Cravens
Judges As Trustees: A Duty To Account And An Opportunity For Virtue, Sarah M. R. Cravens
Washington and Lee Law Review
No abstract provided.
Parades Of Horribles, Circles Of Hell: Ethical Dimensions Of The Publication Controversy, David S. Caudill
Parades Of Horribles, Circles Of Hell: Ethical Dimensions Of The Publication Controversy, David S. Caudill
Washington and Lee Law Review
No abstract provided.
Judicial Triage: Reflections On The Debate Over Unpublished Opinions, David C. Vladeck, Mitu Gulati
Judicial Triage: Reflections On The Debate Over Unpublished Opinions, David C. Vladeck, Mitu Gulati
Washington and Lee Law Review
No abstract provided.
Much Ado About The Tip Of An Iceberg, William M. Richman
Much Ado About The Tip Of An Iceberg, William M. Richman
Washington and Lee Law Review
No abstract provided.
Much Ado About Little: Explaining The Sturm Und Drang Over The Citation Of Unpublished Opinions, Patrick J. Schiltz
Much Ado About Little: Explaining The Sturm Und Drang Over The Citation Of Unpublished Opinions, Patrick J. Schiltz
Washington and Lee Law Review
No abstract provided.
The Dog That Did Not Bark: No-Citation Rules, Judicial Conference Rulemaking, And Federal Public Defenders, Stephen R. Barnett
The Dog That Did Not Bark: No-Citation Rules, Judicial Conference Rulemaking, And Federal Public Defenders, Stephen R. Barnett
Washington and Lee Law Review
No abstract provided.
Unspoken Questions In The Rule 32.1 Debate: Precedent And Psychology In Judging, David E. Klein
Unspoken Questions In The Rule 32.1 Debate: Precedent And Psychology In Judging, David E. Klein
Washington and Lee Law Review
No abstract provided.
How The Supreme Court Delivers Fire And Ice To State Criminal Justice, Ronald F. Wright
How The Supreme Court Delivers Fire And Ice To State Criminal Justice, Ronald F. Wright
Washington and Lee Law Review
No abstract provided.
Come Back To The Nickel And Five:* Tracing The Warren Court's Pursuit Of Equal Justice Under Law, Jim Chen
Come Back To The Nickel And Five:* Tracing The Warren Court's Pursuit Of Equal Justice Under Law, Jim Chen
Washington and Lee Law Review
No abstract provided.
The Warren Court, Criminal Procedure Reform, And Retributive Punishment, Darryl K. Brown
The Warren Court, Criminal Procedure Reform, And Retributive Punishment, Darryl K. Brown
Washington and Lee Law Review
No abstract provided.
A Subversive Strand Of The Warren Court, Gary Peller
A Subversive Strand Of The Warren Court, Gary Peller
Washington and Lee Law Review
No abstract provided.
Causation, Constitutional Principles, And The Jurisprudential Legacy Of The Warren Court, Michelle Adams
Causation, Constitutional Principles, And The Jurisprudential Legacy Of The Warren Court, Michelle Adams
Washington and Lee Law Review
No abstract provided.
Irreparability Resurrected?: Does A Recalibrated Irreparable Injury Rule Threaten The Warren Court's Establishment Clause Legacy?, Doug Rendleman
Irreparability Resurrected?: Does A Recalibrated Irreparable Injury Rule Threaten The Warren Court's Establishment Clause Legacy?, Doug Rendleman
Washington and Lee Law Review
No abstract provided.
Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick
Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick
Washington and Lee Law Review
No abstract provided.
The Burger Court, Lewis F. Powell, Jr.
The Burger Court, Lewis F. Powell, Jr.
Washington and Lee Law Review
No abstract provided.