Jurisprudence Commons^™

Benchslaps, Joseph P. Mastrosimone

Utah Law Review

The practice of judges issuing so-called benchslaps is growing both in popularity and concern. Such published decisions and orders seek to publicly shame lawyers for their alleged unethical or unprofessional lawyering. Legal blogs have picked up on this trend, celebrating and elevating benchslaps to become a part of legal popular culture. However, the practice of using embarrassing and belittling published decisions to punish or to deter unethical or professional conduct raises serious concerns that the issuing judge is violating his or her own ethical duties.

This Article criticizes the practice and concludes that it must end based on three arguments: …

The Tragedy Of Justice Scalia, Mitchell N. Berman

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood

Barry Law Review

No abstract provided.

The Exceptional Role Of Courts In The Constitutional Order, N.W. Barber, Adrian Vermeule

Notre Dame Law Review

This Article looks at a rare part of the judicial role: those exceptional cases when the judge is called upon to pass judgment on the constitution itself. This arises in three groups of cases, roughly speaking. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually …

The Robert L. Levine Distinguished Lecture: A Conversation With Justice Ruth Bader Ginsburg And Professor Aaron Saiger, Ruth Bader Ginsburg, Aaron Saiger

Fordham Law Review

PROFESSOR AARON SAIGER: It’s a signal honor for Fordham Law School and a personal honor for me and a pleasure to have Justice Ginsburg here tonight. We want to thank you for coming. I think I will not reiterate all of the thanks Dean Diller has offered, except to say that we are very grateful to the Levine family and deeply indebted to the students of the Law Review who have made tonight happen. The format of the evening is as follows: I will ask questions and the Justice will answer them.

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 …

Intangible Fish And The Gulf Of Understanding: Yates V. United States And The Court's Approach To Statutory Interpretation, John M. Garvin

Indiana Law Journal

Is a fish a tangible object? The answer in most cases is obviously “yes.” But in Yates v. United States, the Supreme Court held that fish are outside the meaning of the phrase “tangible object” as it is used in the Sarbanes–Oxley Act of 2002. This Note argues that the Yates decision provides a lens with which to examine the Court’s contemporary methods of statutory interpretation. In adopting the textualist vocabulary most famously associated with the late Justice Scalia, the Justices have committed to speaking the same language. Still, fundamental differences between the Justices remain. These differences expose the …

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 …