Law Commons^™

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

Legal Philosophy For Lawyers In The Age Of A Political Supreme Court, Patrick J. Borchers

Tennessee Law Review

Legal Philosophy has long been concerned with the question of what brands a norm as legal, as opposed to a non-legal norm of justice or morality. This central question has occupied the attention of philosophers and lawyers for centuries. Roughly speaking, the Naturalist school contends that legal norms are inextricably intertwined with norms of morality and justice (and in its strongest form contends that law-like pronouncements that are immoral or unjust are not fully laws), while the Positivist school argues that a social construct (often called the Rule of Recognition) brands selected norms as legal, and thus legal norms may …

Law School News: Meet The Rbg Essay Contest Winners! 03-22-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Founders' Multi-Purpose Chief Justice: The English Origins Of The American Chief Justiceship, Justin W. Aimonetti, Jackson A. Myers

West Virginia Law Review

During the founding era, the American Chief Justice was nearly unrecognizable to modern eyes. Rather than a purely judicial officer, the Chief Justice was a multi-purpose minister, serving as a judge, an administrator, a diplomat, and an advisor. He was what we call the “multi-purpose Chief Justice.” The multi-purpose Chief Justice of the Early Republic originated with the ancient English office of the Lord Chief Justice. English judges historically served as multi-purpose ministers to the king, engaging in administrative and even political tasks. This was especially true for the Lord Chief Justice. Even as other English judges settled into more …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

Law School News: Meet The Rbg Essay Contest Winners! 03/03/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Washington and Lee Law Review Online

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …

The Long Shortlist: Women Considered For The Supreme Court, Michael Conklin

Journal of Race, Gender, and Ethnicity

No abstract provided.

Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

In Section I, through a …

A Brief History Of Judical Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii

William & Mary Law Review

Thank you so much for that kind introduction. I really appreciate the opportunity to be here today. I am going to talk about the confirmation process generally. There is no better place to talk about it than here. Let me begin with some numbers and statistics, before I turn to the main thrust of my talk, to give some context as to what recent Presidents have done with respect to judicial appointments. President Trump has appointed two Supreme Court Justices, Neil Gorsuch and Brett of Appeals; twenty-nine so far have been confirmed. The Senate Leader, Senator Mitch McConnell, has already …

The Empty Chair: Reflections On An Absent Justice, Jennifer L. Behrens

Faculty Scholarship

This article examines a January 1888 letter to U.S. Supreme Court Chief Justice Morrison Waite from Associate Justice Stanley Matthews. Justice Matthews requested time away from the notoriously overworked Court’s session in order to attend the funeral of Dr. Peter Parker, renowned medical missionary and diplomat. The piece presents biographical sketches of Justice Matthews and Dr. Parker, and considers the historical context of the potential absence on the late nineteenth-century Court’s operations.

The D'Oh! Of Popular Constiutitonalism, Neal Devins

Neal E. Devins

No abstract provided.

The Structural Case For Vertical Maximalism, Tara Leigh Grove

Tara L. Grove

Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …

Government Lawyers And The New Deal, Neal Devins

Neal E. Devins

No abstract provided.

Book Review Of Clement Haynsworth, The Senate, And The Supreme Court, Davison M. Douglas

Davison M. Douglas

No abstract provided.

Taking Laughter Seriously At The Supreme Court, Matthew Sag

Faculty Publications & Other Works

Laughter in Supreme Court oral arguments has been misunderstood, treated as either a lighthearted distraction from the Court's serious work, or interpreted as an equalizing force in an otherwise hierarchical environment. Examining the more than nine thousand instances of laughter witnessed at the Court since 1955, this Article shows that the Justices of the Supreme Court use courtroom humor as a tool of advocacy and a signal of their power and status. As the Justices have taken on a greater advocacy role in the modern era, they have also provoked more laughter. The performative nature of courtroom humor is apparent …

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

All Faculty Scholarship

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

Rwu First Amendment Blog: Michael J. Yelnosky's Blog: Janus V. Afscme And "Weaponizing The First Amendment 06-30-2018, Michael J. Yelnosky

Law School Blogs

No abstract provided.

What Are The Judiciary’S Politics?, Michael W. Mcconnell

Pepperdine Law Review

What are the politics of the federal judiciary, to the extent that the federal judiciary has politics? Whose interests do federal judges represent? This Essay puts forward five different kinds of politics that characterize the federal judiciary. First, the federal judiciary represents the educated elite. Second, the federal judiciary represents past political majorities. Third, the federal judiciary is more politically balanced than the legislative or executive branches. Fourth, the federal judiciary is organized by regions, and between those regions there is significant diversity. Fifth, to the extent that the judiciary leans one way or the other, it leans toward the …

The Retirement Strategy Of Supreme Court Justices: An Economic Approach, Kayla M. Joyce

Honors Scholar Theses

Previous research has identified strategic behavior in the nomination, confirmation, and retirement processes of the Supreme Court, each independently. This paper analyzes the interaction between the justices, the president, and the Senate in these processes. I constructed a game theoretic model to consider the nomination and approval process of Supreme Court justices and the change in dynamics that might result from an impending election. I hypothesize that sitting justices take into account the party affiliations of the president and the Senate when they are deciding whether it is the optimal time to retire to achieve their own strategic objectives. The …

Supreme Conundrum: A Look Into Neil Gorsuch, And Why This Particular Supreme Court Confirmation Is So Important To The Current Split Between Liberal And Conservative Justices, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Missing Justice In Coleman V. Miller, Barry Cushman

Journal Articles

All nine of the sitting justices took part in the 1939 case of Coleman v. Miller, which concerned whether the Kansas legislature had ratified the pending Child Labor Amendment. One of the issues in the case was decided by a vote of 5-4, while another was resolved by a vote of 7-2. With respect to a third issue, however, Chief Justice Charles Evans Hughes reported that it presented “a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.”

Scholars understandably have been puzzled by how a decision in which a full …

On The Record: The Disastrous Decisions Of The Republican Nominees To The U.S. Supreme Court, Jana Nestlerode

Criminal Justice Faculty Publications

No abstract provided.

Replacing Scalia, Donald Roth

Faculty Work Comprehensive List

"Scalia was an advocate of 'principled pluralism,' the idea that we should have a society where we not only share a common cause, but we freely and vigorously express and defend our differing views."

Posting about the appointment of a new Supreme Court Justice­­­­­­­­ from In All Things - an online hub committed to the claim that the life, death, and resurrection of Jesus Christ has implications for the entire world.

http://inallthings.org/replacing-scalia/

Linking Law And Life: Justice Sotomayor’S Judicial Voice, Laura K. Ray

Laura K. Ray

The Founding Fathers Said I Am Not Subject To Term Limits, Elias Arroyo

Touro Law Review

No abstract provided.

Reality’S Bite, Kerri Lynn Stone

Faculty Publications

The realities of the workplace have been captured by years of socio-scientific, industrial organizational, and other psychological research. Human behavior and thought, interpersonal dynamics, and organizational behavior, with all of their nuances and fine points, are now better understood than they have ever been before, but unless they are used to inform and buttress the rules of law and interpretations promulgated by courts, Title VII’s ability to successfully regulate the workplace to rid it of discrimination will be threatened. This article expands upon that premise, lamenting judges, and specifically justices having eschewed available research and other insights into workplace realities, …

Statutory Interpretations And The Therapy Of The Obvious, Edward L. Rubin

Vanderbilt Law Review

Arthur Koestler wrote that "the more original a discovery the more obvious it seems afterward."' The same may be said about theories of law, and specifically about Robert Katzmann's new book, Judging Statutes. Judge Katzmann's approach to statutory interpretation seems so plausible and balanced that it is hard to believe that anyone ever believed anything else. In this particular case, however, there is in fact an "anything else." It is, of course, Justice Antonin Scalia's campaign to displace intentionalist or purposivist approaches to interpretation with what has come to be called "textualism," and his related effort to rule out reliance …