Jurisprudence Commons^™

Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn

Faculty Scholarship

Professor Nunn provides an introduction for the Symposium: The Least Understood Branch: The Demands and Challenges of the State Judiciary.

Rethinking Criminal Contempt, John A.E. Pottow, Jason S. Levin

Articles

It is of course too early to tell whether we are in a new era of bankruptcy judge (dis)respectability. Only time will tell. But this Article performs a specific case study, on one discrete area of bankruptcy court authority, based upon a particular assumption in that regard. The assumption is this: certain high-salience judicial events-here, the recent Supreme Court bankruptcy judge decisions, coupled with earlier constitutional precedents involving the limits of Article III-can trigger overreaction and hysteria. Lower courts may read these Supreme Court decisions as calling into question the permissibility of certain bankruptcy court practices under the Constitution, and …

Justice Scalia's Labor Jurisprudence- Justice Denied, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Combating The Ninth Circuit Judicial Vacancy Crisis, Carl W. Tobias

Law Faculty Publications

When Donald Trump became President, the United States Court of Appeals for the Ninth Circuit had four judicial vacancies that the Administrative Office of the U.S. Courts (AO) identified as “judicial emergencies.” The court also faces a larger caseload than all the other regional circuits, and has frequently decided appeals the least swiftly. The 2016 election returns indicate that more confirmations will be necessary due to additional court members’ probable retirement or assumption of senior status during President Trump’s administration. Striking politicization could frustrate this effort, however. Soon after the inauguration, President Trump signed a novel executive order proscribing U.S. …

Blackstone, Expositor And Censor Of Law Both Made And Found, Jessie Allen

Book Chapters

Jeremy Bentham famously insisted on the separation of law as it is and law as it should be, and criticized his contemporary William Blackstone for mixing up the two. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover preexisting legal meaning. Bentham’s critique of judicial phoniness persists to this day in claims that judges are “politicians in robes” who pick the outcome they desire and rationalize it with doctrinal sophistry. Such skeptical attacks are usually met with attempts to defend doctrinal interpretation as a partial or occasional limit on …

Clarence Thomas The Questioner, Ronnell Anderson Jones

Utah Law Faculty Scholarship

One of Justice Clarence Thomas’s most remarked upon characteristics is his reluctance to ask questions during oral argument. Many have criticized him for his silence. Others defend his silence, noting, for instance, that historically oral argument played a much less significant role and that the Justice’s written opinions speak for themselves. What has been overlooked in this debate, however, is the fact that Justice Thomas is talented at asking questions. Indeed, in many ways, he is a model questioner. Drawing on the most comprehensive collection of Thomas’s oral argument questions ever compiled, we urge the Justice to ask more questions …

Some Initial Thoughts On Wilson V. Atomic Energy Of Canada Ltd And Edmonton (City) V. Edmonton East (Capilano) Shopping Centres Ltd, Diana Ginn

Articles, Book Chapters, & Popular Press

Administrative law focusses on the way in which, and the extent to which, courts should oversee the exercise of administrative authority. The law on substantive review of administrative decision-making has changed drastically over the last several decades, particularly around choice of standard of review. In the words of the Honorable John M Evans, courts have returned to this issue “with almost monotonous regularity over the last 30 years”. Two Supreme Court of Canada decisions from 2016, Wilson v Atomic Energy of Canada Ltd and Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, have regenerated discussion about standard of …

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

Publications

No abstract provided.

Crafting Precedent, Richard C. Chen

Faculty Publications

(with the Hon. Paul J. Watford & Marco Basile)

How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, a recent treatise by Bryan Garner and twelve distinguished appellate judges. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases. Instead, it offers an exhaustive how-to guide for practicing lawyers and judges: how to identify relevant precedents, how to weigh them, and how to interpret them. This Review takes up the treatise on …

The Tragedy Of Justice Scalia, Mitchell N. Berman

All Faculty Scholarship

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of …

Costs Of Pretrial Detention, Shima Baughman

Utah Law Faculty Scholarship

Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees—inmates not convicted of a crime—which constitute the majority of individuals in our nation’s jails. Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants—including the most dangerous—and others detaining most defendants—even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact …