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Articles 1 - 25 of 25

Full-Text Articles in Jurisprudence

Citation Stickiness, Kevin Bennardo, Alexa Z. Chew Apr 2019

Citation Stickiness, Kevin Bennardo, Alexa Z. Chew

The Journal of Appellate Practice and Process

This Article is an empirical study of what we call citation stickiness. A citation is sticky if it appears in one of the parties' briefs and then again in the court's opinion. Imagine that the parties use their briefs to toss citations in the court's direction. Some of those citations stick and appear in the opinion—these are the sticky citations. Some of those citations don't stick and go unmentioned by the court—these are the unsticky ones. Finally, some sources were never mentioned by the parties yet appear in the court's opinion. These authorities are endogenous—they spring from the court itself. …


Pothole Laws, Appellate Courts, And Judicial Drift, Kenneth L. Gartner Oct 2018

Pothole Laws, Appellate Courts, And Judicial Drift, Kenneth L. Gartner

The Journal of Appellate Practice and Process

This article begins by describing the structure of the appellate system in New York state, introducing the features of the typical New York pothole law, and summarizing the New York cases that set the substantive and procedural background for a discussion and analysis of judicial drift.


The Right To Appeal In Comparative Perspective, Dražan Djukić Oct 2018

The Right To Appeal In Comparative Perspective, Dražan Djukić

The Journal of Appellate Practice and Process

Appellate procedures regarding the most serious crimes under domestic law are, in general, conducted differently in common law and civil law systems. This article reviews the differences concerning the primary facets of such proceedings, namely prosecutorial rights of appeal, access to appellate review, the scope of appellate review, the admission of additional evidence, appellate decisionmaking powers, and the functions of appellate review. It then explains that these differences result from dissimilar decisionmaking processes, degrees of adherence to the search for the truth, and sources of law.


Narratives Of Self-Government In Making The Case, Benjamin L. Berger Apr 2017

Narratives Of Self-Government In Making The Case, Benjamin L. Berger

The Journal of Appellate Practice and Process

No abstract provided.


Infrequently Asked Questions, Edward T. Swaine Oct 2016

Infrequently Asked Questions, Edward T. Swaine

The Journal of Appellate Practice and Process

If appellate advocates could hear from courts about topics that might be raised during oral argument—as opposed to relying solely on their ability to anticipate the issues—might their answers be better? That seems likely, but it is unlikely that research could confirm that, as judicial practice overwhelmingly favors impromptu questioning. Spontaneity may be harmless if the question was predictable, or unavoidable if a judge just thought of the question. But sometimes advocates have to answer challenging questions concerning the law, facts, or implications of a position—questions that help decide the case, either due to the quality of the answer or …


Sua Sponte Actions In The Appellate Courts: The "Gorilla Rule" Revisited, Ronald J. Offenkrantz, Aaron S. Lichter Apr 2016

Sua Sponte Actions In The Appellate Courts: The "Gorilla Rule" Revisited, Ronald J. Offenkrantz, Aaron S. Lichter

The Journal of Appellate Practice and Process

No abstract provided.


Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger Oct 2015

Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger

The Journal of Appellate Practice and Process

No abstract provided.


The Slow Wheels Of Furman's Machinery Of Death, Brent E. Newton Apr 2012

The Slow Wheels Of Furman's Machinery Of Death, Brent E. Newton

The Journal of Appellate Practice and Process

No abstract provided.


Judicial Declaration Of Public Policy, Ruggero J. Aldisert Oct 2009

Judicial Declaration Of Public Policy, Ruggero J. Aldisert

The Journal of Appellate Practice and Process

No abstract provided.


Precedent In The Federal Courts Of Appeals: An Endangered Or Invasive Species?, John B. Oakley Apr 2006

Precedent In The Federal Courts Of Appeals: An Endangered Or Invasive Species?, John B. Oakley

The Journal of Appellate Practice and Process

No abstract provided.


All Mixed Up About Mixed Questions, Randall H. Warner Apr 2005

All Mixed Up About Mixed Questions, Randall H. Warner

The Journal of Appellate Practice and Process

No abstract provided.


No-Citation Rules Under Siege: A Battlefield Report And Analysis, Stephen R. Barnett Oct 2003

No-Citation Rules Under Siege: A Battlefield Report And Analysis, Stephen R. Barnett

The Journal of Appellate Practice and Process

No abstract provided.


A Few Thoughts On The Importance Of An Independent Judiciary, Robert E. Hirshon Oct 2002

A Few Thoughts On The Importance Of An Independent Judiciary, Robert E. Hirshon

The Journal of Appellate Practice and Process

No abstract provided.


From Pens To Pixels: Text-Media Issues In Promulgating, Archiving, And Using Judicial Opinions, Kenneth H. Ryesky Oct 2002

From Pens To Pixels: Text-Media Issues In Promulgating, Archiving, And Using Judicial Opinions, Kenneth H. Ryesky

The Journal of Appellate Practice and Process

No abstract provided.


Expanded Rights Through State Law: The United States Supreme Court Shows State Courts The Way, Robert L. Brown Oct 2002

Expanded Rights Through State Law: The United States Supreme Court Shows State Courts The Way, Robert L. Brown

The Journal of Appellate Practice and Process

No abstract provided.


Taking Its Toll: Partisan Judging And Judicial Review, Jeff Broadwater Apr 2002

Taking Its Toll: Partisan Judging And Judicial Review, Jeff Broadwater

The Journal of Appellate Practice and Process

No abstract provided.


Why Judges Don't Like Petitions For Rehearing, Richard S. Arnold Apr 2001

Why Judges Don't Like Petitions For Rehearing, Richard S. Arnold

The Journal of Appellate Practice and Process

Petitions for en banc rehearings are rarely granted. A Senior Judge for the United States Court of Appeals for the Eighth Circuit provides a history and reasoning of the rehearing process and his personal observations on those petitions and processes in today's court.


Constitutional Revolutions: A New Look At Lower Appellate Review In American Constitutionalism, Robert Justin Lipkin Apr 2001

Constitutional Revolutions: A New Look At Lower Appellate Review In American Constitutionalism, Robert Justin Lipkin

The Journal of Appellate Practice and Process

Judicial review allows the Supreme Court of the United States to perform revolutionary constitutional change. The United States Courts of Appeals could also be a vehicle for revolutionary constitutional adjudication.


The Power Of A Federal Appellate Court To Direct Entry Of Judgment As A Matter Of Law: Reflections On Weisgram V. Marley Co., Robert A. Ragazzo Apr 2001

The Power Of A Federal Appellate Court To Direct Entry Of Judgment As A Matter Of Law: Reflections On Weisgram V. Marley Co., Robert A. Ragazzo

The Journal of Appellate Practice and Process

Federal district court judges have several mechanisms for controlling civil jury functions. One mechanism is the entry of judgment as a matter of law. Federal appellate courts are able to reverse and direct entry of judgment as a matter of law. This article examines the appropriateness of such authority.


Conscience, Judging, And Conscientious Judging, Gene E. Franchini Jan 2000

Conscience, Judging, And Conscientious Judging, Gene E. Franchini

The Journal of Appellate Practice and Process

Judging requires applying the law instead of personal morals, philosophy, or policy of the community. Doing so requires a respect for the separation of powers between branches of government. Justice Franchini of the New Mexico Supreme Court reflects on this challenge for judges through a personal anecdote.


Standards Of Review: Judicial Review Of Discretionary Decisionmaking, Martha S. Davis Jan 2000

Standards Of Review: Judicial Review Of Discretionary Decisionmaking, Martha S. Davis

The Journal of Appellate Practice and Process

The applicable standard of review determines how much deference an appellate court gives a lower court’s decision. Discretionary decisions are review under the “abuse of discretion” standard where the process the lower court used to reach its decision is scrutinized. Three scholars attempts to define this standard are first analyzed followed by cases that have molded the standard. Advice to practitioners concludes the article.


Discretionary Appellate Review Of Non-Final Orders: It’S Time To Change The Rules, Howard B. Eisenberg, Alan B. Morrison Jul 1999

Discretionary Appellate Review Of Non-Final Orders: It’S Time To Change The Rules, Howard B. Eisenberg, Alan B. Morrison

The Journal of Appellate Practice and Process

This article discusses the uncertainty of United States Courts of Appeals jurisdiction over non-final orders.


The Law And The Brain: Judging Scientific Evidence Of Intent, Erica Beecher-Monas, Edgar Garcia-Rill Jul 1999

The Law And The Brain: Judging Scientific Evidence Of Intent, Erica Beecher-Monas, Edgar Garcia-Rill

The Journal of Appellate Practice and Process

This essay addresses the issue of judges deciding what scientific evidence is admissible. The primary focus is the admissibility of expert mental state testimony in criminal cases. The issue is addressed by answering two questions: 1) how does science work and 2) how does the brain work?


Unpublished Opinions: A Comment, Richard S. Arnold Jul 1999

Unpublished Opinions: A Comment, Richard S. Arnold

The Journal of Appellate Practice and Process

The Honorable Richard S. Arnold gives a federal appellate judge’s perspective of the unpublished opinions debate.


An Argument On The Record For More Federal Judgeships, William M. Richman Jan 1999

An Argument On The Record For More Federal Judgeships, William M. Richman

The Journal of Appellate Practice and Process

A case is made for increasing the number of federal judges. The author uses the loss of judge involvement in decisionmaking to begin his argument. The discussion then addresses the arguments against increasing federal judgeships.