Law Commons^™

Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum

Faculty Publications

No abstract provided.

Some Thoughts On The Study Of Judicial Behavior, Lee Epstein

William & Mary Law Review

Back in the 1940s the political scientist C. Herman Pritchett began tallying the votes and opinions of Supreme Court Justices. His goal was to use data to test the hypothesis that the Justices were not only following the “law,” but were also motivated by their own ideological preferences.

With the hindsight of nearly eighty years, we know that Pritchett’s seemingly small project helped to create a big field: Judicial Behavior, which I take to be the theoretical and empirical study of the choices judges make. Political scientists continue to play a central role, but they are now joined by economists, …

The Rhetoric Of Constitutional Absolutism, Eric Berger

William & Mary Law Review

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …

Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl

Faculty Publications

A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of cases resolving conflicts, …

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 …

When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

When Is Finality . . . Final? Rehearing And Resurrection In The Supreme Court, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Law Versus Ideology: The Supreme Court And The Use Of Legislative History, David S. Law, David Zaring

William & Mary Law Review

Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique— namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed …

The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel

Faculty Publications

No abstract provided.

Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins

Faculty Publications

This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive …

Congress, The Supreme Court, And Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy By Placing Limits On Federal Court Jurisdiction, Neal Devins

Faculty Publications

No abstract provided.

Attitudes About Attitudes, Michael J. Gerhardt

Faculty Publications

No abstract provided.

A Judge For All Seasons, R. Kent Newmyer

William & Mary Law Review

No abstract provided.

John Marshall: Remarks Of October 6, 2000, William H. Rehnquist

William & Mary Law Review

No abstract provided.

The Use That The Future Makes Of The Past: John Marshall's Greatness And Its Lessons For Today's Supreme Court Justices, Jack M. Balkin

William & Mary Law Review

No abstract provided.

A Lesson In Incaution, Overwork, And Fatigue: The Judicial Miscraftsmanship Of Segura V. United States, Joshua Dressler

William & Mary Law Review

No abstract provided.