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Articles 1 - 30 of 168
Full-Text Articles in Jurisprudence
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Barry Sullivan
No abstract provided.
A Philosophical Basis For Judicial Restraint, Michael Evan Gold
A Philosophical Basis For Judicial Restraint, Michael Evan Gold
Michael Evan Gold
The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.
'A Body Of Sound Practical Common Sense': Law Reform Through Lay Judges, Public Choice Theory, And The Transformation Of American Law, Gregory S. Sergienko
'A Body Of Sound Practical Common Sense': Law Reform Through Lay Judges, Public Choice Theory, And The Transformation Of American Law, Gregory S. Sergienko
Greg Sergienko
... [T]hree of the earliest and most influential proponents of the argument that public choice theory implies that courts produce better rules than legislators are Judge Frank Easterbrook, Judge Richard Posner, and Justice Antonin Scalia. These proponents of social choice theory conclude from this that judicial decisions are more to be trusted than legislative decisions and therefore favor a variety of devices to expand judicial power. These include interpreting statutes restrictively, which leaves the decision up to the pre-existing judge-made law; interpreting statutes in a common-law fashion, which allows judges their traditional rule-making powers; and ignoring legislative intent, which leaves, …
Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez
Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez
Stephen E Henderson
Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky
Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky
An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Is The Internet Rotting Oklahoma Law?, Lee Peoples
Advocacy Through Briefs In The U.S. Court Of Appeals., Susan B. Haire, Laura P. Moyer
Advocacy Through Briefs In The U.S. Court Of Appeals., Susan B. Haire, Laura P. Moyer
Laura Moyer
The focus of this paper is to evaluate the role of advocates in the U.S. Court of Appeals for the Seventh Circuit by examining the characterization of issues offered in appellate briefs against the issues addressed in the court's decisions. Specifically, in an environment in which attorneys are expected to frame the issues on appeal and judges are expected to respond to those issues, what accounts for judges addressing some issues while suppressing others? By explicitly focusing on how the substantive content of an opinion is shaped, we depart from other, earlier scholarship on the advantages of "repeat player" litigants …
The Irrepressible Myth Of Klein, Howard M. Wasserman
The Irrepressible Myth Of Klein, Howard M. Wasserman
Howard M Wasserman
The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …
Deeds And The Determinacy Norm: Insights From Brandt And Other Cases On An Undesignated, Yet Ever-Present, Interpretive Method, Donald J. Kochan
Deeds And The Determinacy Norm: Insights From Brandt And Other Cases On An Undesignated, Yet Ever-Present, Interpretive Method, Donald J. Kochan
Donald J. Kochan
Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore
Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore
Clark D. Cunningham
No abstract provided.
The Constitution And Informational Privacy, Or How So-Called Conservatives Countenance Governmental Intrustion Into A Person's Private Affairs, 18 J. Marshall L. Rev. 871 (1985), Michael P. Seng
Michael P. Seng
No abstract provided.
Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, 28 U. Mich. J.L. Reform 305 (1995), Matthew R. Kipp, Paul B. Lewis
Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, 28 U. Mich. J.L. Reform 305 (1995), Matthew R. Kipp, Paul B. Lewis
Paul Lewis
With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the …
Ruth Bader Ginsburg's Jurisprudence Of Opportunity And Equality, Deborah Jones Merritt, David M. Lieberman
Ruth Bader Ginsburg's Jurisprudence Of Opportunity And Equality, Deborah Jones Merritt, David M. Lieberman
David Lieberman
No abstract provided.
Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford
Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford
William K. Ford
No abstract provided.
The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford
The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford
William K. Ford
This Article tests a model of judicial decision making that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of …
Foreword, 37 J. Marshall L. Rev. 317 (2004), Samuel R. Olken
Foreword, 37 J. Marshall L. Rev. 317 (2004), Samuel R. Olken
Samuel R. Olken
No abstract provided.
Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009), Samuel R. Olken
Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009), Samuel R. Olken
Samuel R. Olken
No abstract provided.
“Stop Me Before I Get Reversed Again”: The Failure Of Illinois Appellate Courts To Protect Their Criminal Decisions From United States Supreme Court Review, 36 Loy. U. Chi. L.J. 893 (2005), Timothy P. O'Neill
Timothy P. O'Neill
No abstract provided.
New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill
New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill
Timothy P. O'Neill
No abstract provided.
Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf
Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf
Michael C. Dorf
In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …
Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf
Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf
Michael C. Dorf
Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …
Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise
Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise
Michael Heise
The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take? Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this …
Impartiality In Judicial Ethics: A Jurisprudential Analysis, W. Bradley Wendel
Impartiality In Judicial Ethics: A Jurisprudential Analysis, W. Bradley Wendel
W. Bradley Wendel
No abstract provided.
Judges As Altruistic Hierarchs, Lynn A. Stout
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
Mathilde Cohen
Literary Justice, Scott Dodson, Ami Dodson
Literary Justice, Scott Dodson, Ami Dodson
Scott Dodson
This microsymposium essay empirically (and somewhat humorously) measures which current U.S. Supreme Court justice is the most literate, as determined by citations to great works of literary fiction. It further identifies the justices' favorite literary authors. Consistent with the mission of the Green Bag, the essay is meant to be lighthearted and entertaining, but it also recognizes the underlying importance of the intersection of legal opinion-writing and literary fiction.
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
Donald J. Kochan
Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo M. Peñalver
Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo M. Peñalver
Eduardo M. Peñalver
Justice Stevens has sometimes been caricatured as the U.S. Supreme Court Justice who hates religion. Whether considering questions under the Establishment Clause or the Free Exercise Clause, questions about the funding or regulation of religious groups, or the permissibility of religious speech in public places, in case after case he has voted against religion. Like most caricatures, this view of Justice Stevens is based on a kernel of truth. He does appear to be more likely to vote against religious groups than any other Justice. But an exploration of the cases in which Justice Stevens has voted in favor of …
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The , James L. Kainen
James L. Kainen
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …