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Articles 1 - 27 of 27
Full-Text Articles in Law
Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum
Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum
Neal E. Devins
No abstract provided.
The Vanishing Common Law Judge, Neal Devins, David Klein
The Vanishing Common Law Judge, Neal Devins, David Klein
Neal E. Devins
The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in …
The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel
The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel
Neal E. Devins
No abstract provided.
Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins
Neal E. Devins
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 …
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
Tara L. Grove
No abstract provided.
The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove
The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove
Tara L. Grove
The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” …
The Power Of "So-Called Judges", Tara Leigh Grove
Statutory Interpretation In Econotopia, Nathan B. Oman
Statutory Interpretation In Econotopia, Nathan B. Oman
Nathan B. Oman
Much of the debate in the recent revival of interest in statutory interpretation centers on whether or not courts should use legislative history in construing statutes. The consensus in favor of this practice has come under sharp attack from public choice critics who argue that traditional models of legislative intent are positively and normatively incoherent. This paper argues that in actual practice, courts look at a fairly narrow subset of legislative history. By thinking about the power to write that legislative history as a property right and legislatures as markets, it is possible to use Coase's Theorem and the concept …
Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese
Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese
Alan J. Meese
No abstract provided.
English Justices And Roman Jurists: The Civilian Learning Behind England's First Case Law, Thomas J. Mcsweeney
English Justices And Roman Jurists: The Civilian Learning Behind England's First Case Law, Thomas J. Mcsweeney
Thomas J. McSweeney
Article looks at a historical problem—the first use of case law by English royal justices in the thirteenth century—and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, …
How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins
Neal E. Devins
No abstract provided.
Expressing Community Values Through Family Law Adjudication, Vivian E. Hamilton
Expressing Community Values Through Family Law Adjudication, Vivian E. Hamilton
Vivian E. Hamilton
No abstract provided.
Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael S. Green
Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael S. Green
Michael S. Green
In this review essay, Professor Michael Steven Green argues that Dworkin's reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his "semantic sting" argument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in Justice in Robes, his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting argument in no way undermines Dworkin's other arguments against Hart.
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
Neal E. Devins
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 …
Congressional Procedure And Statutory Interpretation, Larry Evans, Jarrell Wright, Neal Devins
Congressional Procedure And Statutory Interpretation, Larry Evans, Jarrell Wright, Neal Devins
Neal E. Devins
No abstract provided.
Congress, The Supreme Court, And Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy By Placing Limits On Federal Court Jurisdiction, Neal Devins
Neal E. Devins
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
Aaron-Andrew P. Bruhl
No abstract provided.
When Is Finality . . . Final? Rehearing And Resurrection In The Supreme Court, Aaron-Andrew P. Bruhl
When Is Finality . . . Final? Rehearing And Resurrection In The Supreme Court, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl
Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl
Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl
Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl
Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
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, …
How Should Elected Judges Interpret Statutes?, Aaron-Andrew P. Bruhl
How Should Elected Judges Interpret Statutes?, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Deferring To Agency Amicus Briefs That Present New Guidance, Aaron-Andrew P. Bruhl
Deferring To Agency Amicus Briefs That Present New Guidance, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Abstention Doctrine, Aaron-Andrew P. Bruhl
Abstention Doctrine, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
At&T V. Concepcion And Adherence To Minority Views, Aaron-Andrew P. Bruhl
At&T V. Concepcion And Adherence To Minority Views, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Judicial Fact-Finding In An Age Of Rapid Change: Creative Reforms From Abroad, Allison Orr Larsen
Judicial Fact-Finding In An Age Of Rapid Change: Creative Reforms From Abroad, Allison Orr Larsen
Allison Orr Larsen
No abstract provided.