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The Case For A Federal Criminal Court System (And Sentencing Reform), Christopher Slobogin Jan 2020

The Case For A Federal Criminal Court System (And Sentencing Reform), Christopher Slobogin

Vanderbilt Law School Faculty Publications

In their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. As they depict it, justice in the federal courts is either delayed or denied, disparity in legal outcomes among circuits is increasing, and the Supreme Court is falling farther and farther behind in resolving circuit splits. While these problems have been around for a while, Menell and Vacca argue they are getting worse and will only continue to worsen if radical action is not taken. Their article provides enough of a factual record to ...


Standing For Nothing, Robert Mikos May 2019

Standing For Nothing, Robert Mikos

Vanderbilt Law School Faculty Publications

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such "protective" standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited-that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus ...


Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle Jan 2014

Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle

Vanderbilt Law School Faculty Publications

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience ...


The Role Of Courts In "Making" Law In Japan: The Communitarian Conservatism Of Japanese Judges, John O. Haley Jan 2013

The Role Of Courts In "Making" Law In Japan: The Communitarian Conservatism Of Japanese Judges, John O. Haley

Vanderbilt Law School Faculty Publications

Professor Haley is an outstanding international and comparative law scholars, widely credited with having popularized Japanese legal studies in the United States. In 1969, Haley received a fellowship from the University of Washington and was in one of the first classes to graduate from the Asian Law Program, now, the Asian Law Center. After working for several years in law firms in Japan, he joined the law faculty at the University of Washington, where he remained for nearly twenty-six years during which time he directed the Asian and Comparative Law Program. In June 2012, Professor Haley was awarded The Order ...


The New Old Legal Realsim, Tracey E. George, Mitu Gulati, Ann C. Mcginley Jan 2011

The New Old Legal Realsim, Tracey E. George, Mitu Gulati, Ann C. Mcginley

Vanderbilt Law School Faculty Publications

Judges produce opinions for numerous purposes. A judicial opinion decides a case and informs the parties whether they won or lost. But in a common law system, the most important purpose of the opinion, particularly the appellate opinion, is to educate prospective litigants, lawyers, and lower court judges about the law: what it is and how it applies to a specific set of facts. Without this purpose, courts could more quickly and efficiently issue one-sentence rulings rather than set forth reasons. By issuing opinions, courts give actors a means of evaluating whether their actions are within the bounds of law ...


Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann Jan 2009

Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann

Vanderbilt Law School Faculty Publications

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose ...


The Myth Of The Generalist Judge, Edward K. Cheng Jan 2008

The Myth Of The Generalist Judge, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Conventional judicial wisdom assumes and indeed celebrates the ideal of the generalist judge, but do judges really believe in it? This Article empirically tests this question by examining opinion assignments in the federal courts of appeals from 1995-2005. It reveals that opinion specialization is a regular part of circuit court practice, and that a significant number of judges specialize in specific subject areas. The Article then assesses the desirability of opinion specialization. Far from being a mere loophole, opinion specialization turns out to be an important development in judicial practice that promises to increase judicial expertise without incurring many of ...


"The Threes": Re-Imaging Supreme Court Decisionmaking, Chris Guthrie, Tracey E. George Jan 2008

"The Threes": Re-Imaging Supreme Court Decisionmaking, Chris Guthrie, Tracey E. George

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.


From Judge To Justice: Social Background Theory And The Supreme Court, Tracey E. George Jan 2008

From Judge To Justice: Social Background Theory And The Supreme Court, Tracey E. George

Vanderbilt Law School Faculty Publications

The Roberts Court Justices already have revealed many differences from one another, but they also share a (possibly) significant commonality: Presidents promoted all of them to the U.S. Supreme Court from the U.S. Courts of Appeals. This means, of course, that they initially learned how to be judges while serving on a circuit court. How might the Justices' common route to the Court affect their actions on it? Social background theory hypothesizes that prior experience influences subsequent behavior such as voting, opinion writing, and coalition formation. This Article empirically analyzes promotion to the Supreme Court and examines the ...


A Near Term Retrospective On The Al-Dujail Trial & The Death Of Saddam Hussein, Michael A. Newton Jan 2008

A Near Term Retrospective On The Al-Dujail Trial & The Death Of Saddam Hussein, Michael A. Newton

Vanderbilt Law School Faculty Publications

Saddam Hussein al-Tikriti died at the hands of Iraqi officials at dawn on December 30, 2006, following a tumultuous fourteen month trial3 for crimes committed against the citizens of a relatively obscure Iraqi village known as al-Dujail.4 Maintaining his façade of disdain when the verdict and sentence were announced on November 5, 2006, Saddam entered the courtroom with an arrogant strut and refused to stand until the guards made him do so to hear the judge’s opinion.5 When Saddam interrupted the reading of the verdict, Judge Ra’ouf Rasheed Abdel Rahman turned down the volume of his ...


Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon Jan 2008

Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Chief judges wield power. Among other things, they control judicial assignments, circulate petitions to their colleagues, and manage internal requests and disputes. When exercising this power, do chiefs seek to serve as impartial court administrators or do they attempt to manufacture case outcomes that reflect their political beliefs? Because chiefs exercise their power almost entirely outside public view, no one knows. No one sees the chief judge change the composition of a panel before it is announced or delay consideration of a petition for en banc review or favor the requests of some colleagues while ignoring those of others. Chiefs ...


When Process Affects Punishment: Differences In Sentences After Guilty Plea, Bench Trial, And Jury Trial In Five Guidelines States, Nancy J. King, David A. Soule, Sara Steen, Robert R. Weidner Jan 2005

When Process Affects Punishment: Differences In Sentences After Guilty Plea, Bench Trial, And Jury Trial In Five Guidelines States, Nancy J. King, David A. Soule, Sara Steen, Robert R. Weidner

Vanderbilt Law School Faculty Publications

The research reported in this Essay examines process discounts-differences in sentences imposed for the same offense, depending upon whether the conviction was by jury trial, bench trial, or guilty plea-in five states that use judicial sentencing guidelines. Few guidelines systems expressly recognize "plea agreement" as an acceptable basis for departure, and none authorizes judges to vary sentences based upon whether or not the defendant waived his right to a jury trial and opted for a bench trial. Nevertheless, we predicted that because of the cost savings resulting from waivers, judges and prosecutors in any sentencing system would ensure that guilty ...


Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punisshment, Nancy J. King Jan 2005

Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punisshment, Nancy J. King

Vanderbilt Law School Faculty Publications

Prosecutors control statutory ranges by selecting charges. In addition, prosecutors decide whether to use or forego special sentencing statutes that carry mandatory minimum penalties higher than the maximum Guidelines sentence that would otherwise apply to the defendant's conduct, as well as statutes that authorize a sentence lower than the minimum Guidelines sentence that would otherwise apply ("safety valve," "substantial assistance," and Rule 35 reductions). By creating these additional provisions and then removing any effective judicial oversight of their application, Congress has expanded the opportunities for prosecutors to decide when to opt out of the national Guidelines and when to ...


The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Tracey E. George, Chris Guthrie Jan 2005

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).


The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Chris Guthrie, Tracey E. George Jan 2005

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).


Induced Litigation, Tracey E. George, Chris Guthrie Jan 2004

Induced Litigation, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a ...


Induced Litigation, Chris Guthrie, Tracey E. George Jan 2004

Induced Litigation, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a ...


The Federal Court System: A Principal-Agent Perspective, Tracey E. George, Albert H. Yoon Jan 2003

The Federal Court System: A Principal-Agent Perspective, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Professor Merrill ably demonstrates that Supreme Court decisions should be examined as the product of an inherently political institution. Observers who assert that Justices are best understood as prophets of the law are practicing an intellectual sleight of hand that allows them to ignore the non­ doctrinal factors that affect judicial behavior. Such an effort is understandable. The Court is a much more complicated subject if its rulings reflect nonlegal factors as well as legal ones. The desire, however, to ignore the true character of the Court produces accounts of its behavior that are inadequate, incorrect, or wholly without content ...


Court Fixing, Tracey E. George Jan 2001

Court Fixing, Tracey E. George

Vanderbilt Law School Faculty Publications

This Article critically examines the existing social science evidence on the relative importance of various individual factors on judicial behavior and adds to that evidence by considering the influence of prior academic experience on judges. Researchers have not focused much attention on the importance of a judge's background as a full-time law professor and legal scholar, although more than thirteen percent of courts of appeals appointees were former law professors. Franklin Roosevelt and Ronald Reagan both viewed the federal judiciary (particularly the Supreme Court and the Courts of Appeals) as integral to their policy agendas, and both further believed ...


Supreme Court Monitoring Of The United States Courts Of Appeals En Banc, Tracey E. George, Michael E. Solimine Jan 2001

Supreme Court Monitoring Of The United States Courts Of Appeals En Banc, Tracey E. George, Michael E. Solimine

Vanderbilt Law School Faculty Publications

This article considers systematically whether the Supreme Court is more likely to review an en banc court of appeals decision than a panel decision. First, we consider Supreme Court review of en banc cases during the Rehnquist Court. Then, in a multivariate empirical analysis of a three-circuit subset of those cases, we control for other variables found to influence the Court's certiorari decision, such as Solicitor General or amicus curiae support for the certiorari petition, a dissent from the court of appeal's opinion, an outcome contrary to the Court's ideological composition, and an intercircuit conflict. The discussion ...


Deciphering Courts Of Appeals Decisions Using The U.S. Courts Of Appeals Data Base, Tracey E. George, Reginald S. Sheehan Jan 2000

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 ...


The Dynamics And Determinants Of The Decision To Grant En Banc Review, Tracey E. George Jan 1999

The Dynamics And Determinants Of The Decision To Grant En Banc Review, Tracey E. George

Vanderbilt Law School Faculty Publications

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This ...


Developing A Positive Theory Of Decisionmaking On U.S. Courts Of Appeals, Tracey E. George Jan 1998

Developing A Positive Theory Of Decisionmaking On U.S. Courts Of Appeals, Tracey E. George

Vanderbilt Law School Faculty Publications

As the decisions of the United States Courts of Appeals become an increasingly important part of American legal discourse, the debate concerning adjudication theories of the circuit courts gain particular relevance. Whereas, to date, the issue has received mostly normative treatment, this Article proceeds systematically and confronts the positive inquiry: how do courts of appeals judges actually decide cases? The Article proposes theoretically, tests empirically, and considers the implications of, a combined attitudinal and strategic model of en banc court of appeals decision making. The results challenge the classicist judges, legal scholars, and practitioners' normative frameworks, and suggest positive theory ...


Stratified Juror Selection: Cross-Section By Design, Nancy J. King, G. Thomas Munsterman Jan 1996

Stratified Juror Selection: Cross-Section By Design, Nancy J. King, G. Thomas Munsterman

Vanderbilt Law School Faculty Publications

Of the various selection methods that contribute to the underrepresentation of members of racial and ethnic minority groups on juries, peremptory challenges have attracted the most attention in recent years. Yet gains in diversity from regulating, or even eliminating, peremptory challenges are necessarily limited by the composition of the venire from which jurors are chosen. This article describes methods of constructing lists of veniremembers and qualified jurors used by some courts to restore the racial and ethnic diversity that is missing from the primary source lists or is eroded in the process of summoning and qualification. It also evaluates potential ...


Regulatory Economics In The Courts: An Analysis Of Judge Scalia's Nhtsa Bumper Decision, W. Kip Viscusi Jan 1987

Regulatory Economics In The Courts: An Analysis Of Judge Scalia's Nhtsa Bumper Decision, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The automobile bumper standard issued by the National Highway Traffic Safety Administration (NHTSA) in 1982 was the product of a decade of policy debate.' This debate continued in the courts until ultimately the NHTSA bumper standard was upheld in 1985. Judge Antonin Scalia authored the majority opinion in the case upholding the standard, and his opinion is the subject of this paper. The NHTSA bumper standard is by no means a landmark regulation with sweeping economic consequences. The debate over the standard centers on the degree of protectiveness to be required of front and rear automobile bumpers. In particular, the ...