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Articles 1 - 7 of 7
Full-Text Articles in Law
Factual Precedents, Allison Orr Larsen
Factual Precedents, Allison Orr Larsen
Faculty Publications
Lawyers and judges speak to each other in a language of precedents—decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I …
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
William & Mary Law Review
The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of …
In Defense Of Implied Injunction Relief In Constitutional Cases, John F. Preis
In Defense Of Implied Injunction Relief In Constitutional Cases, John F. Preis
William & Mary Bill of Rights Journal
If Congress has neither authorized nor prohibited a suit to enforce the Constitution, may the federal courts create one nonetheless? At present, the answer mostly turns on the form of relief sought: if the plaintiff seeks damages, the Supreme Court will normally refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the Court will refuse relief only if Congress has specifically barred it. These contradictory approaches naturally invite arguments for reform. Two common arguments—one based on the historical relationship between law and equity and the other based on separation of powers principles—could quite …
Pleading And Access To Civil Justice: A Response To Twiqbal Apologists, A. Benjamin Spencer
Pleading And Access To Civil Justice: A Response To Twiqbal Apologists, A. Benjamin Spencer
Faculty Publications
Professor Stephen Yeazell once wrote, ''A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions."" One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questioned whether this purported threat is more perceived than real. Indeed, this doctrinal shift has been defended in several ways …
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision Making, David Klein, Neal Devins
Dicta, Schmicta: Theory Versus Practice In Lower Court Decision Making, David Klein, Neal Devins
William & Mary Law Review
The distinction between dictum and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dictum. Specifically, federal courts of appeals meaningfully invoke the distinction in about 1 in 4000 cases; federal district courts in about 1 in 2000 cases; and state courts in about 1 in 4000 cases. In this Essay, we report these findings, describe our coding system, and offer a preliminary assessment …
Reverse Advisory Opinions, Neal Devins, Saikrishna B. Prakash
Reverse Advisory Opinions, Neal Devins, Saikrishna B. Prakash
Faculty Publications
No abstract provided.
When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl
When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl
Popular Media
No abstract provided.