Jurisprudence Commons^™

Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon

Marquette Law Review

This Essay highlights the evolving institutional changes in the federal judiciary—a protracted confirmation process, higher caseload demands, and declining real salaries—in concurrence with evidence suggesting greater reliance by judges on their law clerks when writing opinions. These dynamic forces arguably undermine the integrity of the judicial process and counsel for legislative action to address judicial working conditions or for changes by judges in the hiring of law clerks.

The Logic Of Judicial Decisions - Two Items Of Greater Or Lesser Interest, Michael S. Moore, W. Barton Leach, David J. Agatstein

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Social Justice And The Warren Court: A Preliminary Examination, Arthur S. Miller

Pepperdine Law Review

Whether courts should attempt to advance social justice is a much debated topic in American jurisprudence. The conventional wisdom about the judicial process is to the contrary. In this article, Professor Arthur S. Miller suggests that the Supreme Court's innovative civil rights and civil liberties decisions during Chief Justice Earl Warren's tenure had the ultimate effect of helping to preserve the status quo of the social order. Its decisions, coming at a time of economic abundance, were a means of siphoning off discontent from disadvantaged groups at minimum social cost to the established order. The "activist" decisions under Warren were …

Precedent: What It Is And What It Isn't; When Do We Kiss It And When Do We Kill It?, Ruggero J. Aldisert

Pepperdine Law Review

No abstract provided.

Bewitched By Language: Wittgenstein And The Practice Of Law, Bruce A. Markell

Pepperdine Law Review

No abstract provided.

Is There Anything To Fear In Transnationalist Development Of Law? The Australian Experience, Paul Von Nessen

Pepperdine Law Review

No abstract provided.

Why It Matters Whether There Is A Higher Law Or Not, Dallas Willard

Pepperdine Law Review

No abstract provided.

Law, Higher Law, And Human Making, William S. Brewbaker Iii

Pepperdine Law Review

This paper is a preliminary investigation of what Christian theology might teach us about the nature of human creative activity and its relationship to judging and lawmaking. Rather than attempt to survey and synthesize multiple theological accounts of human making, it focuses on just one - Dorothy Sayers' The Mind of the Maker. The foundational analogy that drives Sayers' account of human creativity is the relation between God's creative activity and that of human beings made in his image. Sayers argues that human creative activity has a Trinitarian structure, which she identifies as Idea, Energy and Power. These three elements …

The Servant Of All: Humility, Humanity, And Judicial Diversity, Michael Nava

Golden Gate University Law Review

This article discusses how judicial diversity might increase qualities of humility and humanity on the bench. I close this section with two examples, the first involving two United States Supreme Court justices and the second a judge on the San Francisco Superior Court.

Judicial Independence: A Cornerstone Of Liberty: Golden Gate University School Of Law Jesse Carter Distinguished Speaker Series, Michael Traynor

Golden Gate University Law Review

Constitution Day Lecture, September 18, 2006

Judicial Decision-Making And Judicial Review: The State Of The Debate, Circa 2009, Charles D. Kelso, R. Randall Kelso

West Virginia Law Review

No abstract provided.

Will Quants Rule The (Legal) World?, Edward K. Cheng

Michigan Law Review

The quants are coming! And they are here to stay-so argues Professor Ian Ayres' in his new book, Super Crunchers, which details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. To be …

Due Process Traditionalism, Cass R. Sunstein

Michigan Law Review

In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and …

Philosophy And Opinions, Warren Ortland

William Mitchell Law Review

Review of Law, Pragmatism, and Democracy. By Richard A. Posner. Harvard University Press, 2003. 398 Pages. $35.00.

The Interpretive Method In The Study Of Legal Decision-Making, John M. Thomas

Washington and Lee Law Review

No abstract provided.

Social Science "Theory" And The Legal Decision-Making Process: A Response To Professor Keith 0. Hawkins, Emory Kimbrough, Jr.

Washington and Lee Law Review

No abstract provided.

The Social Reality And Social Organization Of Natural Decision-Making, Peter K. Manning

Washington and Lee Law Review

No abstract provided.

Indigent Access To Civil Courts: The Tiger Is At The Gates, Wayne H. Scott

Vanderbilt Law Review

The accusation that justice in America has become a luxury has been heard with increasing frequency in recent years. An often criticized aspect of this perceived discrimination is that the poor are systematically deprived of effective access, and frequently of any access at all, to the judicial process by the varied and burdensome expenses of civil litigation.' Although these financial barriers have been subjected to increasingly successful attacks in the courts, the extent to which they have been lowered remains unclear. Nevertheless, an examination of the steps already taken to alleviate the problem of the indigent civil litigant raises hopes …

State Courts And The Federal System, Griffin B. Bell

Vanderbilt Law Review

One of the more important aspects of federalism lies in the relationship which has been established between state and federal courts. The interworkings of the judicial process involve power in some in-stances and principles of comity in others. The purpose of this article is to examine this relationship, including possible areas of abrasion resulting from the interworkings between the two court systems.

Justice Murphy: The Freshman Years, Woodford Howard

Vanderbilt Law Review

Justice Murphy is commonly regarded as having been a libertarian activist. He was not highly regarded as a Justice during his lifetime and this opinion prevails today. Here Professor Howard sees Justice Murphy during his early years on the Supreme Court as a man of indecision rather than an uncompromising libertarian. Through an examination of first amendment cases between 1940-42, the author finds that Murphy displayed a common reaction to the responsibilities of a new Supreme Court Justice which differed from most only in intensity.

The First Amendment And The Judicial Process: A Reply To Mr. Frantz, Wallace Mendelson

Vanderbilt Law Review

Cut loose from its foundation in the distinction between discussion and incitement, the clear and present danger test lost its rational meaning and became a cloak for "vague but fervent transcendental-ism." In short, the activists destroyed it as an intelligible guide to decision-and then abandoned it about a dozen years ago. Meanwhile they have tried, and apparently discarded, one "new" verbalism after another. The latest is Mr. Justice Black's absolutist concentration on two untroubled words in the first amendment: "no law." This gambit--"no law means no law"--again begs all the difficulties simply by ignoring them. As Dean Griswold has suggested, …

Supreme Court Attitudes Toward Federal Administrative Agencies, Joseph Tanenhaus

Vanderbilt Law Review

This article reports for a legal audience an examination by social science methods of the validity of certain hypotheses about the behavior of the United States Supreme Court and of its individual members. In order that this study may be viewed in broader perspective,the first part of the essay surveys the prior uses of social science methods in dealing with the judicial process.

The Judicial Process, Lee E. Skeel

Cleveland State Law Review

The judicial process is that technique by which coherent direction of thought on the basic principles of social rights and duties is made available for judicial officers. It is the duty of such officers diligently to seek out the rules which must be used as the bases of judgment. The sources from which they must seek help are as wide and varied as the sum total of past and present human experience.

The Nature Of The Arbitration Process, William M. Hepburn, Pierre R. Loiseaux

Vanderbilt Law Review

The process of reaching a decision in labor-management arbitrations involves many uncertain factors. As to the final result in a case, we can perhaps say that it is in accord with the contract of the parties or that it is not; that it is "fair" or not; "practical" or unworkable; or that it accords with "public policy" or violates it. Some or all of the criteria discussed in this article may be satisfied in a particular case, but, as is proper, the parties are most often interested in basic equities, in whether an award can be brought within the ambit …

What Is Happening In The Conflict Of Laws: Three Supreme Court Cases, Wendell Carnahan

Vanderbilt Law Review

An answer to the topical inquiry is "A great deal" but full explanation of the general answer to a very big question cannot be attempted in a single article. Instead, attention will be directed primarily to the opinions in three cases decided on the same day by the Supreme Court of the United States. These cases present problems in the segments of conflict of laws dealing with principles of forum non conveniens and full faith to a statute,' jurisdiction over a foreign corporation and a combination of choice of laws rules and judicial recognition of an alimony award. These cases …

The Moral Element In Supreme Court Decisions, Samuel E. Stumpf

Vanderbilt Law Review

Does the United States Supreme Court decide cases on the basis of moral and ethical value judgments? Such a question may reveal a misunderstanding of the nature of law as well as the nature of the judicial process. Moreover, to expect the Court to roam in the field of morals may indicate a failure to take into account the limitations placed upon the Court both by our federal system and by the division of powers. Indeed, a reading of the Supreme Court decisions for the past twenty years reveals a manful resistance on the part of the judges to intrude …

Book Reviews, Carl B. Swisher (Reviewer), Elvin E. Overton (Reviewer), Jay Murphy (Reviewer), Charlotte Williams (Reviewer), Alexander Holtzoff (Reviewer)

Vanderbilt Law Review

Book Reviews

LIONS UNDER THE THRONE

By Charles P. Curtis, Jr.

Boston: Houghton Mifflin, 1947. Pp. xviii, 368. $3.50

MR. JUSTICE BLACK: THE MAN AND His OPINIONS

By John P. Frank (Introduction by Charles A. Beard)

New York: Knopf Company, 1949.Pp. xix, 357. $4.00

ON UNDERSTANDING THE SUPREME COURT

By Paul A. Freund

Boston: Little, Brown & Co., 1949. Pp. vi, 130. $3.00

MELVILLE VESTON FULLER: CHIEF JUSTICE OF THE UNITED STATES, 1888-1919

By Willard L. King

New York: Macmillan Company, 1950. Pp.394. $5.00

CHIEF JUSTICE STONE AND THE SUPREME COURT

By Samuel J. Konefsky (Prefatory Note by Charles A. …

Trends In The Use Of Extrinsic Aids In Statutory Interpretation, Glendon M. Fisher Jr., William J. Harbison

Vanderbilt Law Review

As evidenced by the increasing numbers of court decisions which involve statutes,' and by the large and continually growing literature in the field, the subject of statutory interpretation is one of the most important in modern law. Although it is a field in which exact rules of automatic application can very seldom be formulated, only recently a member of the Supreme Court pointed out the great need for a set of "consistently accepted principles of interpretation." Since the primary purpose of all statutory interpretation is to ascertain the meaning and to effectuate the purposes of the legislature, and since words …

What Is Law, Roscoe Pound

West Virginia Law Review

No abstract provided.

The Paradoxes Of Legal Science: A Review, Rousseau A. Burch

Michigan Law Review

This book by the distinguished Chief Judge of the New York court of appeals deals with difficulties of the judicial process when its function is creative; that is, when a judge makes law for novel situations.

The title of the book assumes there is a science of law, and the introduction takes analogues of physical science for a starting point. In physics there are rest and motion, static and dynamic ; in social affairs there are stability and changes, conservation and progress. In making decisions, the judge may be concerned with the yea of action in alteration, and the nay …