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Newsroom: U.S. Supreme Court Justice Ruth Bader Ginsberg To Visit Rwu Law 08-31-2017, Roger Williams University School of Law 2017 Roger Williams University

Newsroom: U.S. Supreme Court Justice Ruth Bader Ginsberg To Visit Rwu Law 08-31-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


The Rights Of The Child - What Can An International Body Of Catholic Jurists Do?, Christine Godsil Cooper 2017 St. John's University School of Law

The Rights Of The Child - What Can An International Body Of Catholic Jurists Do?, Christine Godsil Cooper

The Catholic Lawyer

No abstract provided.


Leach, Billy (Fa 1040), Manuscripts & Folklife Archives 2017 Western Kentucky University

Leach, Billy (Fa 1040), Manuscripts & Folklife Archives

FA Finding Aids

Finding aid only for Folklife Archives Project 1040. Paper titled "Folklore in the Kentucky Courtroom" in which Billy Leach challenges courtroom stereotypes by collecting anecdotal evidence from a local judge.


Chief Justice William Howard Taft's Conception Of Judicial Integrity: The Legal History Of Tumey V. Ohio, Joshua E. Kastenberg 2017 University of New Mexico

Chief Justice William Howard Taft's Conception Of Judicial Integrity: The Legal History Of Tumey V. Ohio, Joshua E. Kastenberg

Joshua E. Kastenberg

In 1927, Chief Justice William Howard Taft led a unanimous Court to determine that, at minimum, the right to an impartial and independent judiciary meant that the judge had to lack a personal interest in the outcome of the trial. While the decision, Tumey v. Ohio, was based on a judge’s pecuniary interest, it was also part of Taft’s efforts to ensure that the nation’s judges, from the municipal courts to the Supreme Court had the public’s confidence in their integrity. Tumey, therefore, is not simply a decision on pecuniary interests. It can, and should, be ...


Courts And Arbitration: Reconciling The Public With The Private, Susan L. Karamanian 2017 George Washington University Law School

Courts And Arbitration: Reconciling The Public With The Private, Susan L. Karamanian

Arbitration Law Review

No abstract provided.


Trumping The Ninth Circuit: How The 45th President’S Supreme Court Appointments Will Strengthen The Already Strong Federal Policy Favoring Arbitration, Eric Schleich 2017 Penn State Law

Trumping The Ninth Circuit: How The 45th President’S Supreme Court Appointments Will Strengthen The Already Strong Federal Policy Favoring Arbitration, Eric Schleich

Arbitration Law Review

No abstract provided.


Punishing On A Curve, Adi Leibovitch 2017 Columbia Law School

Punishing On A Curve, Adi Leibovitch

Northwestern University Law Review

Does the punishment of one defendant depend on how she fares in comparison to the other defendants on the judge’s docket? This Article demonstrates that the troubling answer is yes. Judges sentence a given offense more harshly when their caseloads contain relatively milder offenses and more leniently when their caseloads contain more serious crimes. I call this phenomenon “punishing on a curve.”

Consequently, this Article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts and courts of limited jurisdiction. Because judges punish on a curve, a court’s jurisdictional scope systematically shapes ...


"The Stepford Justices": The Need For Experiential Diversity On The Roberts Court, Timothy P. O'Neill 2017 John Marshall Law School

"The Stepford Justices": The Need For Experiential Diversity On The Roberts Court, Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.


Arguing With Friends, William Baude, Ryan D. Doerfler 2017 University of Chicago

Arguing With Friends, William Baude, Ryan D. Doerfler

Faculty Scholarship

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or ...


Scotus's 2016-17 Term: The Calm Before The Storm?, John M. Greabe 2017 University of New Hampshire School of Law

Scotus's 2016-17 Term: The Calm Before The Storm?, John M. Greabe

Legal Scholarship

[Excerpt] “The court's just-completed 2016-17 term contained no . . . blockbusters. Its highest profile ruling was an unsigned opinion that modified preliminary injunctions issued by lower courts to prevent President Donald Trump's "travel ban" orders from going into immediate effect.

But that ruling did not decide whether the president's orders are in fact unconstitutional. Instead, the court put that important question off until the fall, by which time further factual developments -for example, the executive branch completing its review and deciding to lift or modify the bans -may well render the issue moot.”


Keynote Address: Two Challenges For The Judge As Umpire: Statutory Ambiguity And Constitutional Exceptions, Brett M. Kavanaugh 2017 United States Circuit Judge, United States Court of Appeals for the District of Columbia Circuit

Keynote Address: Two Challenges For The Judge As Umpire: Statutory Ambiguity And Constitutional Exceptions, Brett M. Kavanaugh

Notre Dame Law Review

Justice Scalia believed in the rule of law as a law of rules. He wanted judges to be umpires, which ordinarily entails judges applying a settled legal principle to a particular set of facts. I agree with that vision of the judiciary. But there are two major impediments in current jurisprudence to achieving that vision of the judge as umpire. The first is the ambiguity trigger in statutory interpretation. The second is the amorphous tests employed in cases involving claimed constitutional exceptions. We should identify and study these issues. Inspired by Justice Scalia’s longstanding efforts to improve the law ...


Beyond The Text: Justice Scalia's Originalism In Practice, Michael D. Ramsey 2017 University of San Diego School of Law

Beyond The Text: Justice Scalia's Originalism In Practice, Michael D. Ramsey

Notre Dame Law Review

This Essay considers the late Justice Antonin Scalia’s contributions to constitutional originalism as a practical methodology. Justice Scalia was the leading judicial theorist and advocate of originalism of his era, and his legacy has widely been assessed in those terms. He was also, along with Justice Clarence Thomas, the leading judicial practitioner of originalism of his era. This latter role has received less comprehensive attention. Although there are of course countless articles analyzing and critiquing his originalist methodology in particular cases, or seeking to demonstrate that certain of his opinions are inconsistent with his theoretical commitments, relatively few articles ...


Originalism And Stare Decisis, Amy Coney Barrett 2017 Notre Dame Law School

Originalism And Stare Decisis, Amy Coney Barrett

Notre Dame Law Review

The question whether stare decisis is compatible with originalism has occupied both originalists and their critics. In this Essay, I explore what light Justice Scalia’s approach to precedent casts on that question. I argue that while he did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his “fainthearted” quip suggests. In fact, a survey of his opinions regarding precedent suggests new lines of inquiry for originalists grappling with the role of stare decisis in constitutional adjudication.


Justice Scalia's Unfinished Business In Statutory Interpretation: Where Textualism's Formalism Gave Up, Abbe R. Gluck 2017 Yale Law School

Justice Scalia's Unfinished Business In Statutory Interpretation: Where Textualism's Formalism Gave Up, Abbe R. Gluck

Notre Dame Law Review

Justice Scalia, in the end, was no interpretive formalist. He would not be pleased to hear this claim, but the fact is that formalism has not succeeded in statutory interpretation, and in fact, the textualism that Justice Scalia deserves so much credit for creating never really embraced formalism at all.

Textualism lacks all the conditions necessary for formalism. It does not have a defined set of predictable rules ordered to ensure objective application. Instead, we have more than one hundred interpretive presumptions—the presumptions favored by textualists—with no defined method of choosing among them. These doctrines of the field ...


Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jr. 2017 Notre Dame Law School

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jr.

Notre Dame Law Review

This Essay examines a specific area that Justice Scalia influenced through the methods of interpretation that he applied—namely, the question of “implied rights of action.”

The idea that federal courts historically applied common law causes of action to remedy federal statutory violations without congressional authorization is a myth. From the first, federal courts heard only those causes of action that Congress had authorized them to hear. And there is reason to think that early federal courts would not have been understood to have power to define their own causes of action had Congress not provided this authorization from the ...


Reviewability And The "Law Of Rules": An Essay In Honor Of Justice Scalia, Adrian Vermeule 2017 Harvard Law School

Reviewability And The "Law Of Rules": An Essay In Honor Of Justice Scalia, Adrian Vermeule

Notre Dame Law Review

Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that “general programs” and “general policies” are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the proper business of courts is to review specific applications of agency rules to particular parties.


Did Justice Scalia Have A Theory Of Interpretation?, Gary Lawson 2017 Boston University School of Law

Did Justice Scalia Have A Theory Of Interpretation?, Gary Lawson

Notre Dame Law Review

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with ...


Justice Scalia And Class Actions: A Loving Critique, Brian T. Fitzpatrick 2017 Vanderbilt University Law School

Justice Scalia And Class Actions: A Loving Critique, Brian T. Fitzpatrick

Notre Dame Law Review

I am not sure any other Justice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did. Under the auspices of the Federal Arbitration Act (FAA), the Justice authored two majority opinions giving a green light to corporations that want to opt out of class-wide liability entirely so long as they do so using arbitration contracts. It is very hard to square these opinions with either the text or the history of the FAA.

In Part I of this Essay, I review the Justice’s class action opinions; I give ...


The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh 2017 University of Richmond School of Law

The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh

Notre Dame Law Review

Justice Scalia’s leadership moved the law of interpretation closer to the central case of statutory interpretation appropriate for our constitutional order. He thereby lawfully improved that law over the course of his judicial tenure even though—over time—this involved transforming rather than simply transmitting the law of interpretation that had been handed down to him.


Justice Scalia And Sherman Act Textualism, Alan J. Meese 2017 William and Mary Law School

Justice Scalia And Sherman Act Textualism, Alan J. Meese

Notre Dame Law Review

This Essay offers a defense of Justice Scalia’s approach to the Sherman Act.


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