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Finding Law, Stephen E. Sachs 2019 Duke Law School

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Environmental Law: Little Streams And Legal Transformations, Dave Owen 2018 University of California, Hastings College of the Law

Environmental Law: Little Streams And Legal Transformations, Dave Owen

The Judges' Book

No abstract provided.


Tax Law: The Ethics Of Tax Lawyering, Heather M. Field 2018 University of California, Hastings College of the Law

Tax Law: The Ethics Of Tax Lawyering, Heather M. Field

The Judges' Book

No abstract provided.


Table Of Contents, 2018 University of California, Hastings College of the Law

Table Of Contents

The Judges' Book

No abstract provided.


Civil Procedure: Managing Class-Action Conflicts, Morris Ratner 2018 University of California, Hastings College of the Law

Civil Procedure: Managing Class-Action Conflicts, Morris Ratner

The Judges' Book

No abstract provided.


Corporate Law: If It Acts Like A Bank, Regulate It Like A Bank, John Crawford 2018 University of California, Hastings College of the Law

Corporate Law: If It Acts Like A Bank, Regulate It Like A Bank, John Crawford

The Judges' Book

No abstract provided.


Patent Law: Empirical Evidence Of Drug Pricing Games— A Citizen’S Pathway Gone Astray, Robin Feldman 2018 University of California, Hastings College of the Law

Patent Law: Empirical Evidence Of Drug Pricing Games— A Citizen’S Pathway Gone Astray, Robin Feldman

The Judges' Book

No abstract provided.


Appendix: Notable Faculty Scholarship In 2017, 2018 University of California, Hastings College of the Law

Appendix: Notable Faculty Scholarship In 2017

The Judges' Book

No abstract provided.


Health Law: Protecting Children When Parents Choose Not To Vaccinate, Dorit Rubinstein Reiss 2018 University of California, Hastings College of the Law

Health Law: Protecting Children When Parents Choose Not To Vaccinate, Dorit Rubinstein Reiss

The Judges' Book

No abstract provided.


Judging And Mindfulness: How To Use Mindfulness To Improve Judging And Reduce Bias, Clark Freshman 2018 University of California, Hastings College of the Law

Judging And Mindfulness: How To Use Mindfulness To Improve Judging And Reduce Bias, Clark Freshman

The Judges' Book

No abstract provided.


Civil Procedure: Jurisdiction And Its Effects, Scott Dodson 2018 University of California, Hastings College of the Law

Civil Procedure: Jurisdiction And Its Effects, Scott Dodson

The Judges' Book

No abstract provided.


Criminal Law: Taking The Constitution Seriously? Three Approaches To Law’S Competence In Addressing Authority And Professionalism, Hadar Aviram 2018 University of California, Hastings College of the Law

Criminal Law: Taking The Constitution Seriously? Three Approaches To Law’S Competence In Addressing Authority And Professionalism, Hadar Aviram

The Judges' Book

No abstract provided.


Employment Law: The Employee Vs. Independent Contractor Dichotomy, Veena Dubal 2018 University of California, Hastings College of the Law

Employment Law: The Employee Vs. Independent Contractor Dichotomy, Veena Dubal

The Judges' Book

No abstract provided.


Introduction, David Faigman 2018 University of California, Hastings College of the Law

Introduction, David Faigman

The Judges' Book

No abstract provided.


Foreword, Lawrence J. O’Neill Hon. 2018 University of California, Hastings College of the Law

Foreword, Lawrence J. O’Neill Hon.

The Judges' Book

No abstract provided.


Children And The Law: Constitutional Decisionmaking And The “Peculiar Vulnerability Of Children”, Lois A. Weithorn 2018 University of California, Hastings College of the Law

Children And The Law: Constitutional Decisionmaking And The “Peculiar Vulnerability Of Children”, Lois A. Weithorn

The Judges' Book

No abstract provided.


Health Law: Canadian Medical Tourism: Expanding Opportunities And Reducing Legal Risks For American Healthcare Providers, R. Gregory Cochran 2018 University of California, Hastings College of the Law

Health Law: Canadian Medical Tourism: Expanding Opportunities And Reducing Legal Risks For American Healthcare Providers, R. Gregory Cochran

The Judges' Book

No abstract provided.


Constitutional Law: Reliance On Nonenforcement, Zachary S. Price 2018 University of California, Hastings College of the Law

Constitutional Law: Reliance On Nonenforcement, Zachary S. Price

The Judges' Book

No abstract provided.


Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer 2018 Maurer School of Law, Indiana University Bloomington

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Chicago-Kent Law Review

Chief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it. To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For ...


Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen 2018 UC Irvine School of Law

Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen

Chicago-Kent Law Review

This is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. In this Address, Professor Hasen considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance on the one hand to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on ...


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