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Articles 31 - 60 of 73
Full-Text Articles in Law
The “Hidden Judiciary”: An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
The “Hidden Judiciary”: An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Duke Law Journal
Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.
Probing The Effects Of Judicial Specialization, Lawrence Baum
Probing The Effects Of Judicial Specialization, Lawrence Baum
Duke Law Journal
No abstract provided.
No Warrant For Radical Change: A Response To Professors George And Guthrie, Erwin Chemerinsky
No Warrant For Radical Change: A Response To Professors George And Guthrie, Erwin Chemerinsky
Duke Law Journal
No abstract provided.
Measuring Judges And Justice, Jeffrey M. Chemerinsky, Jonathan L. Williams
Measuring Judges And Justice, Jeffrey M. Chemerinsky, Jonathan L. Williams
Duke Law Journal
No abstract provided.
“Only Connect”: Toward A Unified Measurement Project, David F. Levi, Mitu Gulati
“Only Connect”: Toward A Unified Measurement Project, David F. Levi, Mitu Gulati
Duke Law Journal
No abstract provided.
The Court And The Code: A Response To The Warp And Woof Of Statutory Interpretation, Lawrence Zelenak
The Court And The Code: A Response To The Warp And Woof Of Statutory Interpretation, Lawrence Zelenak
Duke Law Journal
No abstract provided.
Autocrat Of The Armchair, David F. Levi
Are Empiricists Asking The Right Questions About Judicial Decisionmaking?, Jack Knight
Are Empiricists Asking The Right Questions About Judicial Decisionmaking?, Jack Knight
Duke Law Journal
No abstract provided.
Do Judges Think? Comments On Several Papers Presented At The Duke Law Journal’S Conference On Measuring Judges And Justice, Robert Henry
Do Judges Think? Comments On Several Papers Presented At The Duke Law Journal’S Conference On Measuring Judges And Justice, Robert Henry
Duke Law Journal
No abstract provided.
The Continuing Search For A Meaningful Model Of Judicial Rankings And Why It (Unfortunately) Matters, Scott Baker, Adam Feibelman, William P. Marshall
The Continuing Search For A Meaningful Model Of Judicial Rankings And Why It (Unfortunately) Matters, Scott Baker, Adam Feibelman, William P. Marshall
Duke Law Journal
No abstract provided.
Judging The Judges, Frank B. Cross, Stefanie Lindquist
Judging The Judges, Frank B. Cross, Stefanie Lindquist
Duke Law Journal
The evaluation of judges, especially circuit court judges, has commanded increased attention, with the quantitative analyses of Stephen Choi and Mitu Gulati. However, the proper dimensions for the evaluation of judges remains much disputed. Critics have challenged Choi & Gulati's scales for measuring judicial quality but have offered little that is positive that would improve measurement. The critics make philosophical challenges to whether the measures truly capture the qualities of judging we should desire, but they offer no measurement tools to improve on Choi and Gulati. We hope to advance the theoretical and empirical evaluation by incorporating different scales for …
A Conversation With Judge Richard A. Posner
Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall
Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall
Duke Law Journal
No abstract provided.
A Response To Professors George And Guthrie, Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Michael Boudin
A Response To Professors George And Guthrie, Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Michael Boudin
Duke Law Journal
No abstract provided.
A Response To Professor Knight, Are Empiricists Asking The Right Questions About Judicial Decisionmaking?, H. Jefferson Powell
A Response To Professor Knight, Are Empiricists Asking The Right Questions About Judicial Decisionmaking?, H. Jefferson Powell
Duke Law Journal
No abstract provided.
On Doctors And Judges, Barak Richman
Just Because You Can Measure Something, Does It Really Count?, Laura Denvir Stith
Just Because You Can Measure Something, Does It Really Count?, Laura Denvir Stith
Duke Law Journal
No abstract provided.
Does The Supreme Court Follow The Economic Returns? A Response To A Macrotheory Of The Court, Ernest A. Young, Erin C. Blondel
Does The Supreme Court Follow The Economic Returns? A Response To A Macrotheory Of The Court, Ernest A. Young, Erin C. Blondel
Duke Law Journal
No abstract provided.
Applying Lawrence: Teenagers And The Crime Against Nature, Daniel Allender
Applying Lawrence: Teenagers And The Crime Against Nature, Daniel Allender
Duke Law Journal
The Supreme Court's decision striking down a Texas statute prohibiting homosexual conduct in Lawrence v. Texas is vague in many ways. The opinion failed to articulate both the contours of the right the Court was recognizing and the level of scrutiny courts should apply when enforcing the right. When a question concerning the rights of minors arises under Lawrence, the answer is even more obscure. The Supreme Court of North Carolina faced precisely this question in a 2007 decision, in which the court considered whether Lawrence prohibited the state from prosecuting a minor for engaging in nontraditional sexual activity when …
The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Ditslear
The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Ditslear
Duke Law Journal
Debates about statutory interpretation-and especially about the role of the canons of construction and legislative history-are generally framed in one-size-fits-all terms. Yet federal judges-including most Supreme Court Justices-have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008. The authors conclude that the Justices tend to rely on legislative …
Judicial Evaluations And Information Forcing: Ranking State High Courts And Their Judges, Stephen J. Choi, Mitu Gulati, Eric A. Posner
Judicial Evaluations And Information Forcing: Ranking State High Courts And Their Judges, Stephen J. Choi, Mitu Gulati, Eric A. Posner
Duke Law Journal
Judges and courts get evaluated and ranked in a variety of contexts. The President implicitly ranks lower-court judges when he picks some rather than others to be promoted within the federal judiciary. The ABA and other organizations evaluate and rank these same judges. For the state courts, governors and legislatures do similar rankings and evaluations, as do interest groups. The U.S. Chamber of Commerce, for example, produces an annual ranking of the state courts that is based on surveys of business lawyers. These various rankings and evaluations are often made on the basis of subjective information and opaque criteria. The …
Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Tracey E. George, Chris Guthrie
Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Tracey E. George, Chris Guthrie
Duke Law Journal
We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decisionmaking, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decisionmaking capacity but also improve the Court's composition, competence, and functioning.
Predicting Court Outcomes Through Political Preferences: The Japanese Supreme Court And The Chaos Of 1993, J. Mark Ramseyer
Predicting Court Outcomes Through Political Preferences: The Japanese Supreme Court And The Chaos Of 1993, J. Mark Ramseyer
Duke Law Journal
Empiricists routinely explain politically sensitive decisions of the U.S. federal courts through the party of the executive or legislature appointing the judge. That they can do so reflects the fundamental independence of the courts. After all, appointment politics will predict judicial outcomes only when judges are independent of sitting politicians. Because Japanese Supreme Court justices enjoy an independence similar to that of U.S. federal judges, I use judicial outcomes to ask whether Japanese premiers from different parties have appointed justices with different political preferences. Although the Liberal Democratic Party (LDP) governed Japan for most of the postwar period, it temporarily …
Are Appointed Judges Strategic Too?, Joanna M. Shepherd
Are Appointed Judges Strategic Too?, Joanna M. Shepherd
Duke Law Journal
The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually …
A Response To Professor Ramseyer, Predicting Court Outcomes Through Political Preferences, Michael Boudin
A Response To Professor Ramseyer, Predicting Court Outcomes Through Political Preferences, Michael Boudin
Duke Law Journal
No abstract provided.
Abandonment And Reconciliation: Addressing Political And Common Law Objections To Fetal Homicide Laws, Douglas S. Curran
Abandonment And Reconciliation: Addressing Political And Common Law Objections To Fetal Homicide Laws, Douglas S. Curran
Duke Law Journal
Fetal homicide laws criminalize killing a fetus largely to the same extent as killing any other human being. Historically, the common law did not generally recognize feticide as a crime, but this was because of the evidentiary "born-alive" rule, not because of the substantive understanding of the term "human being." As medicine and science have advanced, states have become increasingly willing to abandon this evidentiary rule and to criminalize feticide as homicide. Although most states have recognized the crime of fetal homicide, fourteen have not. This is largely the result of two independent obstacles: (judicial) adherence to the born-alive rule …
Fraud On The Market Gets A Minitrial: Eisen Through In Re Ipo, Patricia Groot
Fraud On The Market Gets A Minitrial: Eisen Through In Re Ipo, Patricia Groot
Duke Law Journal
Securities class actions involve contested pretrial hearings to determine the proper class of plaintiffs. The certification decision often affects the outcome of a case because defendants usually settle if the class is certified, whereas plaintiffs usually abandon the case without trial if certification is denied. Courts disagree, however, over the appropriate class certification procedure. Courts that emphasize efficiency invoke Eisen v. Carlisle & Jacquelin to preclude considering substantive issues during the pretrial hearing. Courts that emphasize the importance of determining the correct class during the pretrial stage follow General Telephone Co. of the Southwest v. Falcon and allow parties to …
Restoring Rluipas Equal Terms Provision, Sarah Keeton Campbell
Restoring Rluipas Equal Terms Provision, Sarah Keeton Campbell
Duke Law Journal
The Religious Land Use and Institutionalized Persons Act's (RLUIPA) equal terms provision prohibits government from implementing a land-use regulation in a manner that treats religious assemblies and institutions less favorably than secular assemblies and institutions. Lower courts have only begun to interpret and apply RLUIPA's equal terms provision, but already they have significantly weakened its protections of religious liberty by giving the provision unnecessarily restrictive interpretations. Not surprisingly, in light of the Supreme Court's invalidation of the Religious Freedom Restoration Act of 1993 (RFRA), the lower courts' restrictive readings seen? driven by concerns that a broader interpretation would exceed Congress's …
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Duke Law Journal
Cases are won and lost in discovery, yet discovery draws little academic attention. Most scholarship focuses on how much discovery to allow, not on how courts decide discovery disputes-which, unlike trials, occur in most cases. The growth of computer data-e-mails, lingering deleted files, and so forth-increased discovery cost, but the new e-discovery rules just reiterate existing cost-benefit proportionality limits that draw broad consensus among litigation scholars anti economists. But proportionality rules are impossible to apply effectively; they fail to curb discovery excess yet disallow discovery that meritorious cases need. This Article notes proportionality's flaws but rejects the consensus blaming bad …