Fallen Woman (Re)Framed: Judge Jean Hortense Norris, New York City - 1912-1955, 2019 University of Florida Levin College of Law
Fallen Woman (Re)Framed: Judge Jean Hortense Norris, New York City - 1912-1955, Mae C. Quinn
UF Law Faculty Publications
This Article seeks to surface and understand more than what is already known about Jean Hortense Norris as a lawyer, jurist, and feminist legal realist—as well as a woman for whom sex very much became part of her professional persona and work. This article analyzes the lack of legal protections provided to Norris and troubling nature of her removal from the bench given the evidence presented and standards applied. Finally, this Article seeks to provide further context for Jean Norris’s alleged misconduct charges to suggest that as a woman who dared to blur gender boundaries, embrace her professional ...
The Influence Of The Warren Court And Natural Rights On Substantive Due Process, 2019 University of Nevada, Las Vegas
The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke
Calvert Undergraduate Research Awards
Advanced Research Winner 2019:
While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20th century when this concept transitioned from an economic and property rights based approach to one ...
Finding Law, 2019 Duke Law School
Finding Law, Stephen E. Sachs
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 ...
Theorizing The Judicialization Of International Relations, 2019 Duke Law School
Theorizing The Judicialization Of International Relations, Karen J. Alter, Emilie M. Hafner-Burton, Laurence R. Helfer
This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates ...
Aggressive Judicial Review, Political Ideology, And The Rule Of Law, 2019 Georgia State University College of Law
Aggressive Judicial Review, Political Ideology, And The Rule Of Law, Eric J. Segall
Faculty Publications By Year
For over one-hundred and fifty years, the United States Supreme Court has been the most powerful judicial body int he worth with life-tenured judges consistently invalidating state and federal laws without clear support in constitutional text or history. This paper focuses on what should be the appropriate role of life-tenured, unelected federal judges in the American system of separation of powers. The tension is between wanting judges to enforce the supreme law of the Constitution while at the same time keeping judges within their assigned roles of enforcing not making the law. Much of constitutional scholarship in the United States ...
Judges And Judgment: In Praise Of Instigators, 2019 Columbia Law School
Judges And Judgment: In Praise Of Instigators, Kathryn Judge
This essay celebrates judicial instigators, and Judge Richard Posner as instigator. It embraces a view of the judicial system as a system, one that can best achieve its myriad aims only if there is some variety in its constituent parts. Having some judges, some of the time, willing to ask hard questions about what the law is and should be is critical to ensuring the law achieves its intended aims. This essay illustrates this point by weaving together a single case about mutual fund fees with personal observations accumulated over a year as a clerk to Judge Posner and Posner ...
Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, 2019 Texas A&M University School of Law
Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose
How do we evaluate a Supreme Court that writes more than it decides? Despite having the lowest decisional output in the modern era, the Roberts Court is the most verbose Supreme Court in history. The current Justices are more likely than past Justices to have their individual say in cases, writing more concurring and dissenting opinions than prior Courts. These opinions are longer, often strongly worded, and rarely add clarity to the underlying decision. The Roberts Court has shifted from being a decisional body to becoming an institution that comments on more cases than it decides.
This article critiques the ...
Managing Digital Discovery In Criminal Cases, 2019 Southern Methodist University, Dedman School of Law
Managing Digital Discovery In Criminal Cases, Jenia I. Turner
The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.
This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information ...
Political Dysfunction And Constitutional Structure, 2019 University of Nevada, Las Vegas -- William S. Boyd School of Law
Political Dysfunction And Constitutional Structure, David Orentlicher
In this essay, Professor Orentlicher reviews three books that analyze different features of the U.S. political system:
1. Michelle Belco & Brandon Rottinghaus, The Dual Executive: Unilateral Orders in a Separated and Shared Power System (Stanford Univ. Press 2017).
2. Richard A. Posner, The Federal Judiciary: Strengths and Weaknesses (Harvard Univ. Press 2017).
3. Martin H. Redish, Judicial Independence and the American Constitution: A Democratic Paradox (Stanford Univ. Press 2017).
Crow Indian Tribe V. United States, 2018 Alexander Blewett III School of Law at the University of Montana
Crow Indian Tribe V. United States, Hallee Kansman
Public Land & Resources Law Review
The protection status of the Greater Yellowstone grizzly bear continues to elicit debate and find its way into the courtroom. In Crow Indian Tribe v. United States, for the second time in the last decade, a court held the Service’s attempt to delist the Yellowstone Grizzly arbitrary and capricious. Specifically, the court found the Service’s evaluation of remnant populations, recalibration, and genetic health deficient. This case demonstrates the importance in and the resilient motivation behind preserving grizzly bear populations and genetics. As the practice of delisting a species under the Endangered Species Act continues, this case will provide ...
Certainty Vs. Flexibility In The Conflict Of Laws, 2018 University of Pennsylvania Law School
Certainty Vs. Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii
Faculty Scholarship at Penn Law
Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article ...
Law School News: Three Rwu Law Graduates Nominated For State Judgeships 12-10-2018, 2018 Roger Williams University
Law School News: Three Rwu Law Graduates Nominated For State Judgeships 12-10-2018, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, 2018 Australian National University
Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner
Genocide Studies and Prevention: An International Journal
Henry Rousso warned that the engagement of historians as expert witnesses in trials, particularly highly politicized proceedings of mass crimes, risks a judicialization of history. This article tests Rousso’s argument through analysis of three quite different case studies: the Frankfurt Auschwitz trial; the Extraordinary Chambers in the Courts of Cambodia; and the International Crimes Tribunal in Bangladesh. It argues that Rousso’s objections misrepresent the Frankfurt Auschwitz trial, while failing to account for the engagement of historical expertise in mass atrocity trials beyond Europe. Paradoxically, Rousso’s criticisms are less suited to the European context that represents his purview ...
Sb 407 - Sentencing And Punishment, 2018 Georgia State University College of Law
Sb 407 - Sentencing And Punishment, Abigail L. Howd, Alisa M. Radut
Georgia State University Law Review
The Act provides comprehensive reform for offenders entering, proceeding through, and leaving the criminal justice system. The Act requires all superior court clerks to provide an electronic filing option, and it requires juvenile court clerks to collect and report certain data about juvenile offenders to the Juvenile Data Exchange. In addition, the Act creates the Criminal Justice Coordinating Council and the Criminal Case Data Exchange Board. The Act also changes the grounds for granting and revoking professional licenses and drivers’ licenses to offenders and modifies the provisions relating to issuing citations and setting bail. Inmates of any public institution may ...
A Conversation With The Honorable Rosalie Silberman Abella And Dean Matthew Diller, 2018 Supreme Court of Canada
A Conversation With The Honorable Rosalie Silberman Abella And Dean Matthew Diller, Rosalie Silberman Abella, Matthew Diller
Fordham Law Review
DEAN MATTHEW DILLER: This year we are leading up to our celebration of 100 Years of Women at Fordham Law School. In September 1918, the Fordham Law faculty voted to admit women, and we are planning to celebrate that in style. But tonight perhaps is a bit of a teaser for that. Justice Rosalie Silberman Abella is a woman of firsts. She is the first Jewish woman to sit on the bench of the Supreme Court of Canada, and before the Supreme Court, when she was appointed to the Ontario Family Court in 1976, she became the first Jewish woman ...
Who Decides Justice: The Case For Legally Trained Magistrate Judges In West Virginia, 2018 West Virginia Univeristy College of Law
Who Decides Justice: The Case For Legally Trained Magistrate Judges In West Virginia, Jason Neal
West Virginia Law Review
No abstract provided.
If An Interpreter Mistranslates In A Courtroom And There Is No Recording, Does Anyone Care?: The Case For Protecting Lep Defendants’ Constitutional Rights, 2018 Northwestern Pritzker School of Law
If An Interpreter Mistranslates In A Courtroom And There Is No Recording, Does Anyone Care?: The Case For Protecting Lep Defendants’ Constitutional Rights, Lisa Santaniello
Northwestern Journal of Law & Social Policy
No abstract provided.
Democratizing Interpretation, 2018 College of William & Mary Law School
Democratizing Interpretation, Anya Bernstein
William & Mary Law Review
Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.
These outsourcing approaches show a disconnect between the questions judges pose and the methods they ...
The Algorithm Game, 2018 University of Arizona James E. Rogers College of Law
The Algorithm Game, Jane Bambauer, Tal Zarsky
Notre Dame Law Review
Most of the discourse on algorithmic decisionmaking, whether it comes in the form of praise or warning, assumes that algorithms apply to a static world. But automated decisionmaking is a dynamic process. Algorithms attempt to estimate some difficult-to-measure quality about a subject using proxies, and the subjects in turn change their behavior in order to game the system and get a better treatment for themselves (or, in some cases, to protest the system.) These behavioral changes can then prompt the algorithm to make corrections. The moves and countermoves create a dance that has great import to the fairness and efficiency ...
If The Text Is Clear—Lexical Ordering In Statutory Interpretation, 2018 New York University School of Law
If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha
Notre Dame Law Review
Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed, we should pause to reconsider whether these instructions are justified and whether ...