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Articles 1 - 30 of 42
Full-Text Articles in Law
The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg
The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg
Faculty Scholarship
Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative …
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Barry Sullivan
No abstract provided.
Finding Law, Stephen E. Sachs
Finding Law, Stephen E. Sachs
Faculty Scholarship
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 …
Precedent And The Semblance Of Law, Stephen E. Sachs
Precedent And The Semblance Of Law, Stephen E. Sachs
Faculty Scholarship
Like its author, Randy Kozel's *Settled Versus Right* is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, *lawless* -- not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So *Settled Versus Right* makes the best of what we've got, reorienting …
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Faculty Publications & Other Works
No abstract provided.
Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie
Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie
Faculty Scholarship
This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.
Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon
Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon
Marquette Law Review
This Essay highlights the evolving institutional changes in the federal judiciary—a protracted confirmation process, higher caseload demands, and declining real salaries—in concurrence with evidence suggesting greater reliance by judges on their law clerks when writing opinions. These dynamic forces arguably undermine the integrity of the judicial process and counsel for legislative action to address judicial working conditions or for changes by judges in the hiring of law clerks.
The Logic Of Judicial Decisions - Two Items Of Greater Or Lesser Interest, Michael S. Moore, W. Barton Leach, David J. Agatstein
The Logic Of Judicial Decisions - Two Items Of Greater Or Lesser Interest, Michael S. Moore, W. Barton Leach, David J. Agatstein
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Social Justice And The Warren Court: A Preliminary Examination, Arthur S. Miller
Social Justice And The Warren Court: A Preliminary Examination, Arthur S. Miller
Pepperdine Law Review
Whether courts should attempt to advance social justice is a much debated topic in American jurisprudence. The conventional wisdom about the judicial process is to the contrary. In this article, Professor Arthur S. Miller suggests that the Supreme Court's innovative civil rights and civil liberties decisions during Chief Justice Earl Warren's tenure had the ultimate effect of helping to preserve the status quo of the social order. Its decisions, coming at a time of economic abundance, were a means of siphoning off discontent from disadvantaged groups at minimum social cost to the established order. The "activist" decisions under Warren were …
Precedent: What It Is And What It Isn't; When Do We Kiss It And When Do We Kill It?, Ruggero J. Aldisert
Precedent: What It Is And What It Isn't; When Do We Kiss It And When Do We Kill It?, Ruggero J. Aldisert
Pepperdine Law Review
No abstract provided.
The Politics Of Statutory Interpretation, Margaret H. Lemos
The Politics Of Statutory Interpretation, Margaret H. Lemos
Faculty Scholarship
In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …
Suboptimal Social Science And Judicial Precedent, Ben Grunwald
Suboptimal Social Science And Judicial Precedent, Ben Grunwald
Faculty Scholarship
No abstract provided.
Altering Attention In Adjudication, Chris Guthrie, Jeffrey J. Rachinski, Andrew J. Wistrich
Altering Attention In Adjudication, Chris Guthrie, Jeffrey J. Rachinski, Andrew J. Wistrich
Vanderbilt Law School Faculty Publications
Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when …
Bewitched By Language: Wittgenstein And The Practice Of Law, Bruce A. Markell
Bewitched By Language: Wittgenstein And The Practice Of Law, Bruce A. Markell
Pepperdine Law Review
No abstract provided.
Is There Anything To Fear In Transnationalist Development Of Law? The Australian Experience, Paul Von Nessen
Is There Anything To Fear In Transnationalist Development Of Law? The Australian Experience, Paul Von Nessen
Pepperdine Law Review
No abstract provided.
Why It Matters Whether There Is A Higher Law Or Not, Dallas Willard
Why It Matters Whether There Is A Higher Law Or Not, Dallas Willard
Pepperdine Law Review
No abstract provided.
Law, Higher Law, And Human Making, William S. Brewbaker Iii
Law, Higher Law, And Human Making, William S. Brewbaker Iii
Pepperdine Law Review
This paper is a preliminary investigation of what Christian theology might teach us about the nature of human creative activity and its relationship to judging and lawmaking. Rather than attempt to survey and synthesize multiple theological accounts of human making, it focuses on just one - Dorothy Sayers' The Mind of the Maker. The foundational analogy that drives Sayers' account of human creativity is the relation between God's creative activity and that of human beings made in his image. Sayers argues that human creative activity has a Trinitarian structure, which she identifies as Idea, Energy and Power. These three elements …
The Servant Of All: Humility, Humanity, And Judicial Diversity, Michael Nava
The Servant Of All: Humility, Humanity, And Judicial Diversity, Michael Nava
Golden Gate University Law Review
This article discusses how judicial diversity might increase qualities of humility and humanity on the bench. I close this section with two examples, the first involving two United States Supreme Court justices and the second a judge on the San Francisco Superior Court.
Judicial Independence: A Cornerstone Of Liberty: Golden Gate University School Of Law Jesse Carter Distinguished Speaker Series, Michael Traynor
Judicial Independence: A Cornerstone Of Liberty: Golden Gate University School Of Law Jesse Carter Distinguished Speaker Series, Michael Traynor
Golden Gate University Law Review
Constitution Day Lecture, September 18, 2006
Judicial Decision-Making And Judicial Review: The State Of The Debate, Circa 2009, Charles D. Kelso, R. Randall Kelso
Judicial Decision-Making And Judicial Review: The State Of The Debate, Circa 2009, Charles D. Kelso, R. Randall Kelso
West Virginia Law Review
No abstract provided.
Will Quants Rule The (Legal) World?, Edward K. Cheng
Will Quants Rule The (Legal) World?, Edward K. Cheng
Michigan Law Review
The quants are coming! And they are here to stay-so argues Professor Ian Ayres' in his new book, Super Crunchers, which details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. To be …
"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie
"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie
Vanderbilt Law School Faculty Publications
In this Essay--the first in a series of essays designed to reimagine the Supreme Court--we argue that Congress should authorize the Court to adopt, in whole or part, panel decision making... With respect to the prospect of different Court outcomes, we demonstrate empirically in this Essay that the vast majority of cases decided during the late twentieth and early twenty-first centuries--including "Grutter", "Roe", and "Bush v. Gore" --would have come out the same way if the Court had decided them in panels rather than as a full Court.
Due Process Traditionalism, Cass R. Sunstein
Due Process Traditionalism, Cass R. Sunstein
Michigan Law Review
In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and …
Philosophy And Opinions, Warren Ortland
Philosophy And Opinions, Warren Ortland
William Mitchell Law Review
Review of Law, Pragmatism, and Democracy. By Richard A. Posner. Harvard University Press, 2003. 398 Pages. $35.00.
Deciphering Courts Of Appeals Decisions Using The U.S. Courts Of Appeals Data Base, Tracey E. George, Reginald S. Sheehan
Deciphering Courts Of Appeals Decisions Using The U.S. Courts Of Appeals Data Base, Tracey E. George, Reginald S. Sheehan
Vanderbilt Law School Faculty Publications
Is one circuit significantly more conservative or liberal than the others? Do circuit courts consistently avoid deciding the substance of certain appeals by concluding that the plaintiffs lack standing? Have state governments been more successful than other parties when they appeal adverse district court rulings? Do appeals courts act in a majoritarian or countermajoritarian manner with regard to elected institutions and the general public? The United States Courts of Appeals Data Base, an extensive data set of courts of appeals decisions, can address these and other questions about the circuit courts. This article describes the background, scope, and content of …
Social Science "Theory" And The Legal Decision-Making Process: A Response To Professor Keith 0. Hawkins, Emory Kimbrough, Jr.
Social Science "Theory" And The Legal Decision-Making Process: A Response To Professor Keith 0. Hawkins, Emory Kimbrough, Jr.
Washington and Lee Law Review
No abstract provided.
The Social Reality And Social Organization Of Natural Decision-Making, Peter K. Manning
The Social Reality And Social Organization Of Natural Decision-Making, Peter K. Manning
Washington and Lee Law Review
No abstract provided.
The Interpretive Method In The Study Of Legal Decision-Making, John M. Thomas
The Interpretive Method In The Study Of Legal Decision-Making, John M. Thomas
Washington and Lee Law Review
No abstract provided.
Indigent Access To Civil Courts: The Tiger Is At The Gates, Wayne H. Scott
Indigent Access To Civil Courts: The Tiger Is At The Gates, Wayne H. Scott
Vanderbilt Law Review
The accusation that justice in America has become a luxury has been heard with increasing frequency in recent years. An often criticized aspect of this perceived discrimination is that the poor are systematically deprived of effective access, and frequently of any access at all, to the judicial process by the varied and burdensome expenses of civil litigation.' Although these financial barriers have been subjected to increasingly successful attacks in the courts, the extent to which they have been lowered remains unclear. Nevertheless, an examination of the steps already taken to alleviate the problem of the indigent civil litigant raises hopes …
State Courts And The Federal System, Griffin B. Bell
State Courts And The Federal System, Griffin B. Bell
Vanderbilt Law Review
One of the more important aspects of federalism lies in the relationship which has been established between state and federal courts. The interworkings of the judicial process involve power in some in-stances and principles of comity in others. The purpose of this article is to examine this relationship, including possible areas of abrasion resulting from the interworkings between the two court systems.