Law Commons^™

The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli

James Ianelli

The Constitution’s eligibility qualifications in Articles I and II have drawn increased scrutiny in recent national elections. No scholarship to date, however, has examined why the Framers omitted any comparable qualifications from Article III. This paper presents the question of what made the judiciary unique relative to the other branches such that any nominated and confirmed candidate could sit on the federal bench.

The answer to this question sheds new light on the wisdom of eligibility qualifications in Articles I and II. Although no direct historical record details the basis for the omission, a number of factors appear relevant. Without …

The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez

Armando G. Hernandez

A simple truism we all learned in our childhood was that the square pegs did not fit into the circular shaped cut-outs. Greek philosophers often struggled with this very same conundrum of squaring the circle. In 1996, the Supreme Court decided Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The case required application of the Court's Erie jurisprudence. Many commentators hailed the case as the ideal moment to clarify the Court's esoteric body of law. However, writing for a six vote majority, Justice Ginsburg held that state law (the square) and federal law (the circle) could be accommodated. …

Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman

David Schneiderman

International investment arbitration has been described as a private system of justice addressing matters of high public policy. Yet, despite the very high stakes involved – in terms of both policy room and monetary implications – tribunal awards are sometimes difficult to reconcile. This conflict usually is explained with reference to the fact that these are ad hoc tribunals addressing specific disputes arising under particular investment treaties. Not so easily explained are conflicting tribunal awards drawing on virtually identical facts, invoking the same treaty text, where arbitrators seemingly change their mind from one case to the next without any explanation. …

Does Judicial Philosophy Matter? A Case Study, Francisco J. Benzoni

Francisco J Benzoni

A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge’s political ideology can be used to predict how a judge will decide certain cases, and other factors, such as the judge’s judicial philosophy, tend to be unimportant. Under this theory, the two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with predicted ideological outcomes. This manuscript tests the attitudinal model by examining opinions by two federal courts of appeals judges with very similar political ideologies, but different judicial philosophies: J. …

Essay: Justice Sotomayor On The Supreme Court: A Boon For Business?, Dana M. Muir, David Baumer, Stephanie Greene, Gideon Mark, Robert E. Thomas

Dana M. Muir

In this essay, five business law professors with specialties in five different doctrinal areas analyze Justice Sonia Sotomayor’s jurisprudence in those areas and consider the implications of her appointment to the Supreme Court. Each of the areas, intellectual property, antitrust, securities, ERISA, and employment law, involves an area of federal law of significant importance to businesses. Although employment law also is a matter of state law, this essay focuses on the federal employment law statutes. Based on our analysis, we believe that Justice Sotomayor will approach business cases from a neutral perspective. Overall, we find support for the generally accepted …

A Free Speech Right To Impugn Judicial Integrity In Court Proceedings, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

The Bahd Of New England: Citing Shakespeare In The First Circuit, Eugene L. Morgulis

Eugene L. Morgulis

This paper explores the ways in which judges in federal and state courts within the geographical region of the First Circuit have used the works and words of William Shakespeare to enhance their opinions. It not only exhaustively catalogs the plays and quotations that judges have cited since the 19th century, but it also analyzes the ways in they are used, discusses how they add or detract from opinions, and compares the use of Shakespeare to other authors commonly cited.

Administrative Law In The Roberts Court: The First Four Years, Robin K. Craig

Robin K. Craig

Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law.

This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access …

Do Partisan Elections Of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations, Michael Leroy

Michael H LeRoy

Partisan election of judges is a growing concern as large contributions pour into judicial elections. State judges raised $157 million for their campaign funds from 1999 to 2006. Caperton v. A.T. Massey Co. Inc., 129 S.Ct. 2252 (2009), ruled that a state supreme court justice who cast the deciding vote for a company whose president contributed $2.3 million to his campaign violated the losing company’s due process rights. I examine whether partisan judicial elections affect court review of arbitrator rulings (called awards) in employment disputes. For this study, I added a new variable— method for selecting judges— to my database …

Structure And Precedent, Jeffrey C. Dobbins

Jeffrey C. Dobbins

The standard model of vertical precedent is part of the deep structure of our legal system. The rules governing that model are largely intuitive, often taught only in passing at law school, and rarely addressed by positive law. While the application of these rules of precedent can be difficult in practice, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. A Ninth Circuit opinion, for instance, is binding on district courts within the Ninth Circuit and on subsequent Ninth Circuit panels; it is not binding on Second Circuit panels. …

Can We Talk (With Or Without Beer)? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro

Adjoa A. Aiyetoro

This article is ultimately about healing the racial divide illustrated by the recent arrest of Henry Louis Gates. It expands on the scholarship of unconscious racism by exploring a trigger for unconscious racism that up to this point scholars have only alluded to: the language of race. It argues that society often censures an African descendant speaker who uses the language of race or racism. This censure occurs because many in American society have embraced the myth of a colorblind society. They believe that to assert otherwise and to question whether there are racial implications associated with a given action …

Judging In Bad Faith, Eric J. Miller

Eric J. Miller

Must judges apply the law “sincerely” or “in good faith?” H.L.A Hart famously argued that, if legal officials are to require conformity to the law from its subjects, they must accept the law as valid. Hart, however, stopped short of demanding that the personal motivations of legal officials match their public utterances.

In this article, I argue that a judge may be motivated to decide cases for reasons that have nothing to do with the law. Accordingly, the law is systematically de-centered from her calculation of how to decide. Legal norms operate only to constrain or justify her independently motivated …

Judging By The Numbers: An Empirical Study Of The Power Of Story, Kenneth D. Chestek

Kenneth D. Chestek

The recent debate about whether “empathy” is a desirable trait in Supreme Court Justices begs a more fundamental question: are appellate court judges in fact persuaded by appeals to pathos? This article attempts to answer that question by reporting the results of an empirical study the author conducted that investigates whether narrative reasoning, or “stories,” are persuasive to appellate judges. It is the first rigorous study to ever confront this issue directly. The article first describes how the author wrote four test briefs, two on each side of a hypothetical lawsuit. One brief on each side was written as a …

Rights Translation And Remedial Disequilibration In Constitutional Criminal Procedure, Jennifer E. Laurin

Jennifer E. Laurin

Criminal procedure rights are widely understood both as individual constitutional guarantees and as conduct-regulating norms, enforcement of which guides the behavior of criminal justice actors. This regulatory dynamic of constitutional criminal procedure flows from both criminal and civil litigation, and as a consequence criminal procedure rights are shaped and adjudicated in recursive remedial regimes. Little notice has been paid, however, to the fact that the contours of criminal procedure rights are not consonant across the criminal and civil remedial regimes. Instead, courts in civil actions reshape criminal procedure doctrine in a manner that erects new, conflicting, and often more lenient …

The Rights Question, Bruce A. Antkowiak

Bruce A Antkowiak

The problem this article addresses will be well known to anyone who has taught or taken a course in Constitutional Law in the last three decades. When the subject turns to the related issues of selective incorporation, substantive due process and the proper interpretation of the Ninth Amendment, teachers of Constitutional Law cringe at the prospect of trying to explain sensibly what the Supreme Court itself has come to acknowledge is a most baffling conundrum: what are “rights,” where do they come from, are there more to be identified in the Constitutional universe, who is equipped to find them, and …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …

Federal Demand Local Choice: Safeguarding The Notion Of Federalism In Education Law And Policy, Kamina A. Pinder

Kamina A Pinder

As the ESEA undergoes its next transformation under a new presidential administration, this article explores the appropriate federal and state roles in promoting and enforcing laws related to academic achievement, and the appropriate judicial role in interpreting them. Part I of this article provides an overview of how the modern federal role in education law and policy was shaped through politics and litigation. Part II explores the drastic changes that No Child Left Behind brought to education federalism through the lens of cooperation, coercion (enforcement), and competition. It then analyzes the appropriate role of the executive branch in enforcing educational …

Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman

Frank O. Bowman III

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continues in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …

Judicial Campaign Financing: An Ever Present Threat To Judicial Independence, Sarah J. Morath

Sarah J Morath

The different processes by which state judges are selected is an increasingly popular topic for discussion amongst legal scholars and practitioners. While many law review articles and discussions advocate for one method of judicial selection over the other, this article addresses one specific and significant concern with the elective method: campaign financing.2 As this article explains, campaign financing can impair judicial independence and inhibit fair and impartial decisions. Fortunately, the appointive system is insulated from the pressures and problems associated with campaign financing, a benefit which is all the more evident today when everyone, including judges, face difficult economic times. …

Sports In The Courts: The Role Of Sports References In Judicial Opinions, Douglas E. Abrams

Douglas E. Abrams

Sports In the Courts: The Role of Sports References in Judicial Opinions by Douglas E. Abrams Abstract In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print …

Where's The Party: Do Class Action Plaintiffs Really Prefer State Courts?, Neil J. Marchand

Neil J. Marchand

Scholars and interest groups have discussed litigants’ behavior in the class action context. This paper uses empirical data to determine whether class action plaintiffs actually prefer to litigate their suits in state courts. Despite well-reasoned conjectures on the subject, to date there is a paucity of empirical data on class action litigation, especially at the state court level. This scarcity has thwarted analysis of the likelihood of class certification in the state courts, the Class Action Fairness Act of 2005’s (CAFA) total impact on the judiciary, and the predictability of class action litigation. This study aims to start filling the …

Issue Preclusion In Complex Litigation, Edward D. Cavanagh

Edward D. Cavanagh

Issue Preclusion In Complex Litigation Introduction In an era of multiparty, multijurisdictional, multidistrict litigation, federal cases have grown increasingly complex. As judges struggle to manage complicated cases, a new litigation paradigm has emerged. Rather than attempting to try all cases in one action, federal judges are now breaking the litigation down into smaller pieces, using "fast tracks" or "bellwether” cases, hoping that resolution of one or two cases will lead to settlement of the rest. Inevitably, because the cases involve identical fact issues and identical defendants, the doctrine of prior adjudication comes into play. This article identifies and analyzes significant …

Putting Aside The Rule Of Law Myth: Corruption And The Case For Juries In Emerging Democracies, Brent T. White

Brent T. White

Since the mid-1990’s, international donor agencies and development banks have invested millions to reform post-communist judiciaries in Central Asia and Europe. This investment has been driven by the belief that economic growth and democracy depend upon the “rule of law.” “Rule of law” in turn depends on a well-functioning and independent judiciary. After over a decade of rule of law reform, however, Central Asia is characterized by growing authoritarianism and judiciaries across both Central Asia and Eastern Europe are afflicted by rampant corruption. Both the rule of law and democracy have been elusive. Rule-of-law reform projects throughout the post-Soviet space …

The Deportation Of Migrant Workers From Israel: Theory, Policy And The Law, Yossi Dahan

Yossi Dahan

This essay proposes a theoretical framework for understanding the deportation of tens of thousands of migrant workers from Israel between the years 1995 and 2005. To this end, it examines Israeli deportation policy based, inter alia, on an empirical study of hundreds of deportation cases litigated in the courts between 2001 and 2005. This examination demonstrates that the deportation campaign was designed to achieve two parallel goals: to lower labor costs by creating a large class of indentured workers through what has been referred to as the “binding arrangement” (a neo-liberal goal) and to deny the grant of civic status …

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa Baird

Tonja Jacobi

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism of splitting existing majorities in future cases. Dissenting Justices can ‘signal’ to future litigants when this potential exists, to transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions where the dissenting Justice suggests that future cases ought to be framed in …

Ambiguity About Ambiguity: An Empirical Inquiry Into Legal Interpretation, Anup Malani

Anup Malani

Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the reader is uncertain about its meaning? Or is it a claim that readers, as a group, would disagree about what the text means (however certain each of them may be individually)? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity …

Factbound And Splitless: The Certiorari Process As A Barrier To Justice For Indian Tribes, Matthew L.M. Fletcher

Matthew L.M. Fletcher

The Supreme Court’s certiorari process does more than help the Court parse through thousands of uncertworthy claims – the Court’s application of the process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The negative impact of the certiorari process is all but invisible unless one studies a specific area of constitutional law. This study takes up that challenge. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in far more petitions filed by the opponents to …

Tort Damages And The New Science Of Happiness, Rick Swedloff, Peter H. Huang

Peter H. Huang

The happiness revolution is coming to legal scholarship. Based on empirical data about the how and why of positive emotions, legal scholars are beginning to suggest reforms to legal institutions. In this article we aim to redirect and slow down this revolution. One of their first targets of these legal hedonists is the jury system for tort damages. In several recent articles, scholars have concluded that early findings about hedonic adaptation and affective forecasting undermine tort awards for pain and suffering, mental anguish, loss of enjoyment of life, and other non-economic damages. In the shadow of a broader debate about …

Understanding Congress's Choice Of Delegate: An Empirical Analysis Of Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Margaret H. Lemos

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants—and even less about the consequences—of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …