Crafting Precedent, 2017 University of Maine School of Law
Crafting Precedent, Richard C. Chen
Faculty Publications
(with the Hon. Paul J. Watford & Marco Basile)
How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, a recent treatise by Bryan Garner and twelve distinguished appellate judges. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases. Instead, it offers an exhaustive how-to guide for practicing lawyers and judges: how to identify relevant precedents, how to weigh them, and how to interpret them. This Review takes up the treatise on …
Partisan Judicial Speech And Recusal Procedure, 2017 University of Maine School of Law
Partisan Judicial Speech And Recusal Procedure, Dmitry Bam
Faculty Publications
This article discusses Associate Professor Appleby’s thoughtful comment criticizing the Supreme Court’s self-recusal procedure in light of Justice Ginsberg’s critical remarks about then-Presidential Candidate Trump.
Seen And Heard: A Defense Of Judicial Speech, 2017 University of Maine School of Law
Seen And Heard: A Defense Of Judicial Speech, Dmitry Bam
Faculty Publications
Judicial ethics largely prohibits judges from engaging in political activities, including endorsing or opposing candidates for public office. These restrictions on judicial politicking, intended to preserve both the reality and the appearance of judicial integrity, independence, and impartiality, have been in place for decades. Although the Code of Conduct for United States Judges does not apply to the Supreme Court, Supreme Court Justices have long followed the norm that they do not take sides, at least publicly, in partisan political elections. And while elected state judges have some leeway to engage in limited political activities associated with their own candidacy," …
Tailored Judicial Selection, 2017 University of Maine School of Law
Tailored Judicial Selection, Dmitry Bam
Faculty Publications
American states have experimented with different methods of judicial selection for two centuries, creating uniquely American models of selection, like judicial elections, rarely used throughout the rest of the world. But despite the wide range of selection methods in existence throughout the nation, neither the American people nor legal scholars have given much thought to tailoring the selection method to particular levels of the judiciary. To the contrary, the most common approach to judicial selection in the United States is what I call a unilocular, “a judge is a judge,” approach. For most of our nation’s history, all judges within …
Class Actions And The Counterrevolution Against Federal Litigation, 2017 University of Pennsylvania Carey Law School
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
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 Tragedy Of Justice Scalia, 2017 University of Pennsylvania Carey Law School
The Tragedy Of Justice Scalia, Mitchell N. Berman
All Faculty Scholarship
Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of …
Justice Scalia And Fourth Estate Skepticism, 2017 S.J. Quinney College of Law, University of Utah
Justice Scalia And Fourth Estate Skepticism, Ronnell Anderson Jones
Utah Law Faculty Scholarship
The about-face in characterization of the press during Justice Scalia's three decades on the Court is worthy of a discussion about its underlying causes and also a discussion about its potential effects. As I have noted elsewhere, both the explanations for the shift and the possible ramifications of it are complex and multifaceted. Scalia's push for a new, less positive depiction of the press came at a time when the institutional press experienced significant change and its reputation among the American public plummeted-suggesting that Justice Scalia (and, ultimately, his colleagues on the Court) were merely being perceptive observers of the …
Costs Of Pretrial Detention, 2017 S.J. Quinney College of Law, University of Utah
Costs Of Pretrial Detention, Shima Baughman
Utah Law Faculty Scholarship
Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees—inmates not convicted of a crime—which constitute the majority of individuals in our nation’s jails. Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants—including the most dangerous—and others detaining most defendants—even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact …
Panel Assignment In The Federal Courts Of Appeals, 2017 Duke Law School
Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy
Faculty Scholarship
It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews …
Reforming Military Justice: An Analysis Of The Military Justice Act Of 2016, 2017 St. Mary's University School of Law
Reforming Military Justice: An Analysis Of The Military Justice Act Of 2016, David A. Schlueter
St. Mary's Law Journal
The Uniform Code of Military Justice (UCMJ), 10 USC §§ 801-946, is the statutory template for the United States' military justice system. The UCMJ addresses topics such as court-martial jurisdiction, and pretrial, trial, and appellate procedures. It also includes punitive articles which proscribe, not only common law offenses, but also offenses unique to the military. Congress made significant changes to the UCMJ in the Military Justice Act of 2016. The legislation not only amended a significant number of existing articles, but also added many new articles. In addition, Congress completely reorganized the punitive articles. In this article, Professor Schlueter addresses …
Are We Insane? The Quest For Proportionality In The Discovery Rules Of The Federal Rules Of Civil Procedure, 2017 Duke Law School
Are We Insane? The Quest For Proportionality In The Discovery Rules Of The Federal Rules Of Civil Procedure, Paul W. Grimm
Faculty Scholarship
No abstract provided.
A Critique Of The Uniquely Adversarial Nature Of The U.S. Legal, Economic And Political System And Its Implications For Reinforcing Existing Power Hierarchies, 2017 FAMU College of Law
A Critique Of The Uniquely Adversarial Nature Of The U.S. Legal, Economic And Political System And Its Implications For Reinforcing Existing Power Hierarchies, Areto A. Imoukuede, Jim Wilets
Journal Publications
This article argues that the uniquely adversarial nature of the United States litigation system, rooted in the medieval English system of "trial by battle," has replicated itself in almost all aspects of American society, distinguishing the United States from even its common law counterparts that shared the genesis of their legal systems in English "trial by battle." This "trial by battle" is often characterized in the context of speech by terms such as the 'marketplace of ideas," or in the context of economics by terms such as "the law of the jungle.," Even resolution of basic Constitutional concepts are subject …
A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, 2017 Georgetown University Law Center
A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, J. Peter Byrne
Georgetown Law Faculty Publications and Other Works
No modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation.
After The Override: An Empirical Analysis Of Shadow Precedent, 2017 Indiana University Maurer School of Law
After The Override: An Empirical Analysis Of Shadow Precedent, Deborah A. Widiss, Brian J. Broughman
Articles by Maurer Faculty
Congressional overrides of prior judicial interpretations of statutory language are typically defined as equivalent to judicial overrulings, and they are presumed to play a central role in maintaining legislative supremacy. Our study is the first to empirically test these assumptions. Using a differences-in-differences research design, we find that citation levels decrease far less after legislative overrides than after judicial overrulings. This pattern holds true even when controlling for depth of the superseding event or considering only the specific proposition that was superseded. Moreover, contrary to what one might expect, citation levels decrease more quickly after restorative overrides—in which Congress repudiates …
Multiple Chancellors: Reforming The National Injunction, 2017 Notre Dame Law School
Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray
Journal Articles
In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts.
This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor …
Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, 2017 Brooklyn Law School
Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, Drita Dokic
Brooklyn Journal of Corporate, Financial & Commercial Law
The Dodd-Frank Wall Street Reform and Consumer Protection Act created, among other things, the Financial Stability Oversight Council (FSOC), an entity within the U.S. Department of the Treasury tasked with assessing and mitigating financial risk. Financial institutions with over $50 billion in assets are automatically deemed “systemically important.” However, under the Dodd-Frank Act, FSOC has the authority to designate non-bank companies engaged in financial activity as systemically important as well. Once designated as a systemically important financial institution (SIFI), these companies are subject to enhanced regulation and supervision by the Federal Reserve. Because the costs associated with such enhanced regulation …
The Contributions Of Louis Brandeis To The Law Of Lawyering, 2016 Touro University Jacob D. Fuchsberg Law Center
The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski
Touro Law Review
No abstract provided.
Judges Or Hostages? The Bureaucratization Of The Court Of Justice Of The European Union And The European Court Of Human Rights, 2016 University of Connecticut
Judges Or Hostages? The Bureaucratization Of The Court Of Justice Of The European Union And The European Court Of Human Rights, Mathilde Cohen
Mathilde Cohen
Has Nihilism Politicized The Supreme Court Nomination Process?, 2016 Duquesne University School of Law
Has Nihilism Politicized The Supreme Court Nomination Process?, Bruce Ledewitz
Bruce Ledewitz
Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, 2016 Osgoode Hall Law School of York University
Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco
Palma Paciocco
The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …