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Full-Text Articles in Legal History

What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser Jun 2019

What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser

Susan Poser

Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …


Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis Mar 2019

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis

Paul Lewis

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the …


I Dissent: The Federal Circuit’S “Great Dissenter,” Her Influence On The Patent Dialogue, And Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017), Daryl Lim May 2017

I Dissent: The Federal Circuit’S “Great Dissenter,” Her Influence On The Patent Dialogue, And Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017), Daryl Lim

Daryl Lim

This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation’s principal patent court from empirical, doctrinal, and policy perspectives. It offers several insights into how the Federal Circuit reaches consensus and when it does not, serving as a window into its inner workings, a reference to academics, judges, and attorneys alike. More broadly, this Article provides a template to study the “legal dialogue” of other judges at the Federal Circuit, those in other Circuits, as well as those in other areas of the law. …


Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang Aug 2016

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Sean Farhang

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …


The Hughes Court Docket Books: The Early Terms, 1929-1933, Barry Cushman Jun 2016

The Hughes Court Docket Books: The Early Terms, 1929-1933, Barry Cushman

Barry Cushman

For many years, the docket books kept by a number of the Hughes Court Justices have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the docket books that the Curator’s Office holds for the early Hughes Court, comprising the 1929-1933 Terms. Only one of …


Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz Sep 2015

Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz

Daniel M Katz

No abstract provided.


Institutional Rules, Strategic Behavior And The Legacy Of Chief Justice William Rehnquist: Setting The Record Straight On Dickerson V. United States, Daniel Katz Sep 2015

Institutional Rules, Strategic Behavior And The Legacy Of Chief Justice William Rehnquist: Setting The Record Straight On Dickerson V. United States, Daniel Katz

Daniel M Katz

Why did Justice Rehnquist behave the way he did in Dickerson v. United States? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and disavow the potential of a strategic explanation. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences which could have produced the Chief's decision. This is troubling because prior scholarship demonstrates that a chief justice possesses a unique set of institutional powers which provides significant incentive for him …


The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan Jul 2015

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.


Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory C. Sisk, Michael Heise, Andrew P. Morriss Jul 2015

Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Andrew P. Morriss

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical …


Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra Jul 2015

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.


Justice Brennan: A Tribute To A Federal Judge Who Believes In State's Rights, 20 J. Marshall L. Rev. 1 (1986), Ann Lousin Jun 2015

Justice Brennan: A Tribute To A Federal Judge Who Believes In State's Rights, 20 J. Marshall L. Rev. 1 (1986), Ann Lousin

Ann M. Lousin

No abstract provided.


What Do We Mean By An Independent Judiciary, 38 Ohio N.U. L. Rev. 133 (2011), Michael P. Seng Jun 2015

What Do We Mean By An Independent Judiciary, 38 Ohio N.U. L. Rev. 133 (2011), Michael P. Seng

Michael P. Seng

Issues continue to arise about judicial independence in the United States. The term judicial independence is often not defined with precision. Judicial independence has its roots in the doctrine of separation of powers. It is also grounded in due process and in ethical standards that require judges to be competent and impartial decision-makers. Judicial independence depends upon society having faith in the integrity of the courts. Accountability is thus the handmaid of an independent judiciary. This article defines both the structures and the ethical standards that ensure an independent judiciary.


Ditching "The Disposal Plan": Revisiting Miranda In An Age Of Terror, 20 St. Thomas L. Rev. 155 (2008), Kim D. Chanbonpin Jun 2015

Ditching "The Disposal Plan": Revisiting Miranda In An Age Of Terror, 20 St. Thomas L. Rev. 155 (2008), Kim D. Chanbonpin

Kim D. Chanbonpin

No abstract provided.


Foreword, 37 J. Marshall L. Rev. 317 (2004), Samuel R. Olken Jun 2015

Foreword, 37 J. Marshall L. Rev. 317 (2004), Samuel R. Olken

Samuel R. Olken

No abstract provided.


Justice George Sutherland And Economic Liberty: Constitutional Conservatism And The Problem Of Factions, 6 Wm. & Mary Bill Rts. J. 1 (1997), Samuel R. Olken Jun 2015

Justice George Sutherland And Economic Liberty: Constitutional Conservatism And The Problem Of Factions, 6 Wm. & Mary Bill Rts. J. 1 (1997), Samuel R. Olken

Samuel R. Olken

Most scholars have viewed Justice George Sutherland as a conservative jurist who opposed government regulation because of his adherence to laissez-faire economics and Social Darwinism, or because of his devotion to natural rights. In this Article, Professor Olken analyzes these widely held misperceptions of Justice Sutherland's economic liberty jurisprudence, which was based not on socio-economic theory, but on historical experience and common law. Justice Sutherland, consistent with the judicial conservatism of the Lochner era, wanted to protect individual rights from the whims of political factions and changing democratic majorities. The Lochner era differentiation between government regulations enacted for the public …


The Ironies Of Marbury V. Madison And John Marshall's Judicial Statesmanship, 37 J. Marshall L. Rev. 391 (2004), Samuel R. Olken Jun 2015

The Ironies Of Marbury V. Madison And John Marshall's Judicial Statesmanship, 37 J. Marshall L. Rev. 391 (2004), Samuel R. Olken

Samuel R. Olken

No abstract provided.


The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, 10 Wm. & Mary Bill Rts. J. 249 (2002), Samuel R. Olken Jun 2015

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, 10 Wm. & Mary Bill Rts. J. 249 (2002), Samuel R. Olken

Samuel R. Olken

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …


Chief Justice John Marshall And The Course Of American Constitutional History, 33 J. Marshall L. Rev. 743 (2000), Samuel R. Olken Jun 2015

Chief Justice John Marshall And The Course Of American Constitutional History, 33 J. Marshall L. Rev. 743 (2000), Samuel R. Olken

Samuel R. Olken

No abstract provided.


Chief Justice John Marshall In Historical Perspective, 31 J. Marshall L. Rev. 137 (1997), Samuel R. Olken Jun 2015

Chief Justice John Marshall In Historical Perspective, 31 J. Marshall L. Rev. 137 (1997), Samuel R. Olken

Samuel R. Olken

No abstract provided.


“Stop Me Before I Get Reversed Again”: The Failure Of Illinois Appellate Courts To Protect Their Criminal Decisions From United States Supreme Court Review, 36 Loy. U. Chi. L.J. 893 (2005), Timothy P. O'Neill May 2015

“Stop Me Before I Get Reversed Again”: The Failure Of Illinois Appellate Courts To Protect Their Criminal Decisions From United States Supreme Court Review, 36 Loy. U. Chi. L.J. 893 (2005), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.


Law And The Argumentative Theory, 90 Or. L. Rev. 837 (2012), Timothy P. O'Neill May 2015

Law And The Argumentative Theory, 90 Or. L. Rev. 837 (2012), Timothy P. O'Neill

Timothy P. O'Neill

Like many law professors, I have coached my share of moot court teams. As you probably know, in most competitions students either choose or are assigned one side of the case to brief. But for the oral argument segment of the competition, students must argue both sides of the case, “on-brief” and “off-brief,” often in alternate rounds. At the end of a competition, with their heads still swimming with arguments and counterarguments, students will sometimes ask, “OK, so can you tell us which is the correct side?” I always say, “Of course I can. . . . The correct side …


The Pre-Appointment Experience Of Supreme Court Justices: Response To Professor Barton, 64 Fla. L. Rev. F. 29 (2012), Timothy O'Neill May 2015

The Pre-Appointment Experience Of Supreme Court Justices: Response To Professor Barton, 64 Fla. L. Rev. F. 29 (2012), Timothy O'Neill

Timothy P. O'Neill

No abstract provided.


New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill May 2015

New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.


The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin Apr 2015

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.


Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence Mar 2015

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …


Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise Feb 2015

Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise

Michael Heise

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take? Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this …


Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory Sisk, Michael Heise, Andrew Morriss Feb 2015

Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory Sisk, Michael Heise, Andrew Morriss

Michael Heise

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical …


Designing Judicial Review: A Comment On Schauer, Emily Sherwin Feb 2015

Designing Judicial Review: A Comment On Schauer, Emily Sherwin

Emily L Sherwin

In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review.


A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner Jan 2015

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

James R Maxeiner

Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …


A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan Dec 2014

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan

Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial …