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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 ...


Arguing With Friends, William Baude, Ryan D. Doerfler 2018 University of Chicago Law School

Arguing With Friends, William Baude, Ryan D. Doerfler

Michigan Law Review

Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.

Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the ...


Study Group On Immigrant Representation: The First Decade, Robert A. Katzmann 2018 Chief Judge, U.S. Court of Appeals for the Second Circuit

Study Group On Immigrant Representation: The First Decade, Robert A. Katzmann

Fordham Law Review

All of us here have a common goal: ensuring adequate legal representation of the immigrant poor. A courtroom has multiple players with different roles, but all would agree that adequate legal representation of the parties is essential to the fair and effective administration of justice. Deficient representation frustrates the work of courts and ill serves litigants. All too often, and throughout the country, courts that address immigration matters must contend with such a breakdown in legal representation, a crisis of massive proportions with severe, tragic costs to immigrants and their families. For our nation’s immigrants, the urgent need for ...


Universal Representation, Lindsay Nash 2018 Benjamin N. Cardozo School of Law

Universal Representation, Lindsay Nash

Fordham Law Review

In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for noncitizens in removal proceedings. This effort, initially born out of a pilot project in New York City, has generated a host of replication projects throughout the nation and holds the promise of even broader expansion. But as it grows, this effort must confront challenges from within: the sort-of supporters who want to limit this representation system’s coverage in a number of ...


Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema 2018 Northwestern Pritzker School of Law

Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema

Boston College Law Review

This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a ...


"Beauty Is Truth And Truth Beauty": How Intuitive Insights Shape Legal Reasoning And The Rule Of Law, Stephen M. Maurer 2018 Seattle University School of Law

"Beauty Is Truth And Truth Beauty": How Intuitive Insights Shape Legal Reasoning And The Rule Of Law, Stephen M. Maurer

Seattle University Law Review

Scientists have long recognized two distinct forms of human thought. “Type 1” reasoning is unconscious, intuitive, and specializes in finding complex patterns. It is typically associated with the aesthetic emotion that John Keats called “beauty.” “Type 2” reasoning is conscious, articulable, and deductive. Scholars usually assume that legal reasoning is entirely Type 2. However, critics from Holmes to Posner have protested that unconscious and intuitive judgments are at least comparably important. This Article takes the conjecture seriously by asking what science can add to our understanding of how lawyers and judges interpret legal texts. The analysis is overdue. Humanities scholars ...


Roger Williams University School Of Law And The Women's Law Society Present Women In Robes 10-4-2018, Roger Williams University School of Law 2018 Roger Williams University

Roger Williams University School Of Law And The Women's Law Society Present Women In Robes 10-4-2018, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School of Law 2018 Providence Journal

Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill 2018 Columbia Law School

Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill

Fordham Law Review

It is a great honor to take part in the celebration of the Second Circuit’s 125th anniversary and in particular to present the Hands Lecture. The Second Circuit in the 1930s and 1940s came to be called the “Hand Court,” and during those years it established its reputation as the most admired of the U.S. circuit courts of appeals. It was called the Hand Court because two of its judges, who often formed the majority on three-judge panels, bore the surname Hand. Learned Hand is today regarded as a great common law judge, and significant attention has been ...


Judicial Review In An Age Of Hyper-Polarization And Alternative Facts, David A. Dana, Michael Barsa 2018 University of San Diego

Judicial Review In An Age Of Hyper-Polarization And Alternative Facts, David A. Dana, Michael Barsa

San Diego Journal of Climate & Energy Law

This Article is organized as follows: Part I reviews the case law and commentary on judicial review of agency shifts in policy or practice, focusing on the technocratic case for deference and how recent political realities call such deference into question. Part II sets forth the background and history regarding fuel economy standards, leading to the Obama Administration’s adoption of standards in 2012 and the “midterm” review of those standards that Obama’s EPA declared final as of January 2017. Part II also reviews the legal issues surrounding Trump’s EPA’s “re-opening” of the midterm review. We suggest ...


The Hollowed Out Common Law, Sam Issacharoff, Florencia Marotta-Wurgler 2018 NYU Law School

The Hollowed Out Common Law, Sam Issacharoff, Florencia Marotta-Wurgler

New York University Law and Economics Working Papers

The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine print. Not surprisingly, these contracts of the new electronic marketplace require doctrinal elaboration. Our Article asks not about the specific resolution of new doctrinal challenges, but about how the common law of contracts will be elaborated. Specifically, the Article begins with empirical observations about the domain ...


Forum Selling Abroad, Stefan Bechtold, Jens Frankenreiter, Daniel M. Klerman 2018 ETH Zurich (Swiss Federal Institute of Technology)

Forum Selling Abroad, Stefan Bechtold, Jens Frankenreiter, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum sell-ing.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff ...


Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer 2018 University of Pennsylvania Law School

Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer

Faculty Scholarship at Penn Law

The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.

The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968.

Analysis of these cases leads to three conclusions:

1. Exercise of independent ...


Testimony Of Rebecca Ingber Before The United States Senate Committee On The Judiciary On The Nomination Of Brett Kavanaugh For Associate Justice Of The U.S. Supreme Court, Rebecca Ingber 2018 Boston University School of Law

Testimony Of Rebecca Ingber Before The United States Senate Committee On The Judiciary On The Nomination Of Brett Kavanaugh For Associate Justice Of The U.S. Supreme Court, Rebecca Ingber

Faculty Scholarship

Professor Rebecca Ingber testified before the U.S. Senate Judiciary Committee as it considered the nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Her testimony focused on Judge Kavanaugh's national security and international law jurisprudence, in particular, the court's role in considering international law constraints on the President's war powers, and the potential effects of this judicial approach on executive power.


Testimony Before The United States Senate Committee On The Judiciary On The Nomination Of Brett Kavanaugh For Associate Justice Of The U.S. Supreme Court, Rebecca Ingber 2018 Boston University School of Law

Testimony Before The United States Senate Committee On The Judiciary On The Nomination Of Brett Kavanaugh For Associate Justice Of The U.S. Supreme Court, Rebecca Ingber

Faculty Scholarship

Professor Rebecca Ingber testified before the U.S. Senate Judiciary Committee as it considered the nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Her testimony focused on Judge Kavanaugh's national security and international law jurisprudence, in particular, the court's role in considering international law constraints on the President's war powers, and the potential effects of this judicial approach on executive power.


Table Of Contents And Editorial Board, Michelle Wellnitz 2018 Pepperdine University

Table Of Contents And Editorial Board, Michelle Wellnitz

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Sec Disgorgement Actions: Equitable Remedy Or Penalty?, Armando Lopez 2018 Pepperdine University

Sec Disgorgement Actions: Equitable Remedy Or Penalty?, Armando Lopez

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Mining For Children’S Data In Today’S Digital World, Damin Park 2018 Pepperdine University

Mining For Children’S Data In Today’S Digital World, Damin Park

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Keeping The Healthcare Industry Accountable, Yoori Chung 2018 Pepperdine University

Keeping The Healthcare Industry Accountable, Yoori Chung

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers 2018 Pepperdine University

Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


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