Digital Commons Network^™

Racial Disproportionality In Child Welfare: False Logic And Dangerous Misunderstandings, Jesse Russell

Jesse Russell

Disproportionality and disparities in child welfare appear to be widely recognized, if not fully understood, phenomena. There is often disagreement on how to interpret or find meaning in the empirical evidence that supports the existence of disproportionality and disparities—some the result of fertile and valuable discussion, some stemming from misunderstanding. Several potential paths of misinterpretation are examined here: the ecological fallacy concept, the fallacy of hidden assumptions, the lessons from different measures of disproportionality, the difficulty in understanding how probabilities relate to each other, and the effect that multicolinearity can have on statistical findings. Ultimately, better understanding of empirical findings …

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily …

Judicial Independence In Light Of The Basic Principles On The Independence Of The Judiciary: Who Has The Right Idea?, Ubaid Ul-Haq

Ubaid ul-Haq

Judicial independence is a crucial component inherent in the proper and effective administration of any government. Critical to this doctrine is the larger requirement of a separation of powers, which must be established before attempting to affect any concept of judicial independence. Judicial independence essentially represents a judiciary’s ability to render decisions free of improper influences, both internal and external. The United Nations has set forth a minimum standard of judicial independence with which States should seek to comply in order to protect civil liberties and in a greater sense, human rights. Evaluating the jurisdictions of Canada, Jamaica, and the …

Judicial Independence In Light Of The Basic Principles On The Independence Of The Judiciary: Who Has The Right Idea?, Ubaid Ul-Haq

Ubaid ul-Haq

Judicial independence is a crucial component inherent in the proper and effective administration of any government. Critical to this doctrine is the larger requirement of a separation of powers, which must be established before attempting to affect any concept of judicial independence. Judicial independence essentially represents a judiciary’s ability to render decisions free of improper influences, both internal and external. The United Nations has set forth a minimum standard of judicial independence with which States should seek to comply in order to protect civil liberties and in a greater sense, human rights. Evaluating the jurisdictions of Canada, Jamaica, and the …

Live Hearings And Paper Trials, Mark Spottswood

Mark Spottswood

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review …

The Florida Beach Case And The Road To Judicial Takings, Michael Blumm

Michael Blumm

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the …

Rationing Justice?: The Effect Of Caseload Pressures On The U.S. Courts Of Appeals In Immigration Cases, Anna O. Law

Anna O. Law

Beginning in late 2003, the U.S. Courts of Appeals for the Second and Ninth Circuits experienced a deluge of immigration cases caused by changes in another part of the immigration bureaucracy. How did these two circuits, especially the Ninth circuit and its personnel, which handle more than 50% of all immigration appeals nationwide, respond to the "immigration surge" as it came to be called? Using interview data from 25% of the active judges on the court and some central staff, the article examines the series of internal experiments in case management that the Ninth Circuit was forced to undertake in …

May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, Paul M. Collins

Lori A. Ringhand

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This dataset, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Women Judges Unite: A Report From The Founding Convention Of The National Association Of Women Judges, Lynn C. Rossman

Golden Gate University Law Review

No abstract provided.

White Male Heterosexist Norms In The Confirmation Process, Theresa M. Beiner

Theresa M. Beiner

Justice Sonia Sotomayor’s confirmation hearing took a controversial turn when commentators picked up on a reference in the New York Times to a portion of a speech she gave in 2001. In that speech, then Judge Sotomayor opined that, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” That statement, along with her participation in the per curiam decision in Ricci v. DeStefano, caused a minor storm during her confirmation. More recently, former Harvard Dean and former …

The Partisan Dimensions Of Federal Preemption In The United States Courts Of Appeals, Bradley Joondeph

Bradley W. Joondeph

This paper explores some of these empirical uncertainties surrounding the political dimensions of preemption in the federal courts. More concretely, it presents a statistical study of every preemption decision rendered by the United States Courts of Appeals from January 1, 2005, to December 31, 2009, a total of 560 decisions and just over 1,700 judicial votes. And these data tell a story consisting of two distinct parts. The first part is that preemption disputes seem to produce a large measure of judicial consensus. In the full universe of cases, there is only a slight difference between Republican and Democratic appointees: …

Race To Judgment? An Empirical Study Of Scott V. Harris And Summary Judgment, Amelia G. Yowell

Notre Dame Law Review

No abstract provided.

Something Judicious This Way Comes...The Use Of Foreshadowing As A Persuasive Device In Judicial Narrative, Michael J. Higdon

University of Richmond Law Review

No abstract provided.

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisionmaking, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …