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Full-Text Articles in Jurisprudence
The Flight From Judgment, Jennifer Hendricks
The Flight From Judgment, Jennifer Hendricks
Florida Law Review
In their book, Practical Wisdom: The Right Way to Do the Right Thing, Barry Schwartz and Kenneth Sharpe highlight the task of sentencing a convicted criminal as quintessentially calling for practical wisdom. Wisdom, they argue, is not a transcendent state to be achieved by mystical means but a skill that must be learned and improved by practice, trial, and error. It is grounded in empathy, which is the cognitive ability “to imagine what someone else is thinking and feeling.” A person’s capacity for wisdom can be stunted by rote adherence to inflexible rules or by carrots and sticks that …
The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
Florida Law Review
Ben Barton’s recent paper concludes that the members of the current Court are more “cloistered and detached” than at any other point in the Court’s history. His findings are bound to renew calls for the appointment of politicians to the Court; but I argue that remedying the perceived deficit of life experience and “practical wisdom” by appointing persons currently or formerly active in partisan politics would likely not deliver the claimed benefits and might affirmatively harm the Court as an institution.
The Pre-Appointment Experience Of Supreme Court Justices, Timothy P. O’Neill
The Pre-Appointment Experience Of Supreme Court Justices, Timothy P. O’Neill
Florida Law Review
Benjamin H. Barton’s recent article, An Empirical Study of Supreme Court Justice Pre-Appointment Experience, makes a significant contribution to the growing body of work that compares and contrasts the professional and educational backgrounds of the current members of the Roberts Court with their predecessors. I share Professor Barton’s concerns.
The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash
The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash
Florida Law Review
It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple punishments problem. As is often the case, the incrementalist approach taken by the Court allowed this conquest to occur somewhat quietly. Professor Pamela Karlan observes that “most constitutional law scholars have hardly noticed that the most significant innovation in substantive due process during the Rehnquist and Roberts Court years” has been the Court’s punitive damages jurisprudence. …
Two Faces Of Judicial Restraint (Or Are There More?) In Mcdonald V. City Of Chicago, Nelson Lund
Two Faces Of Judicial Restraint (Or Are There More?) In Mcdonald V. City Of Chicago, Nelson Lund
Florida Law Review
Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they undermine liberal precedents or strike down liberal legislation. Defenders of judicial activism have all but disappeared. One sign of this apparent consensus is that all Supreme Court nominees now promise to be paragons of judicial restraint. Any of the following quotes, for example, could easily have been uttered by any of the four most recent nominees: …