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Articles 1 - 26 of 26
Full-Text Articles in Law
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
Faculty Publications
No abstract provided.
The Power Of "So-Called Judges", Tara Leigh Grove
The Power Of "So-Called Judges", Tara Leigh Grove
Faculty Publications
No abstract provided.
The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove
The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove
Faculty Publications
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” …
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
Faculty Publications
No abstract provided.
The Vanishing Common Law Judge, Neal Devins, David Klein
The Vanishing Common Law Judge, Neal Devins, David Klein
Faculty Publications
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 …
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
Faculty Publications
No abstract provided.
Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl
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, …
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
Faculty Publications
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, …
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
Faculty Publications
No abstract provided.
Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong
Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong
Faculty Publications
No abstract provided.
How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins
Faculty Publications
No abstract provided.
The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel
The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel
Faculty Publications
No abstract provided.
Abstention Doctrine, Aaron-Andrew P. Bruhl
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 …
Expressing Community Values Through Family Law Adjudication, Vivian E. Hamilton
Expressing Community Values Through Family Law Adjudication, Vivian E. Hamilton
Faculty Publications
No abstract provided.
The Administrative Judiciary's Independence Myth, James E. Moliterno
The Administrative Judiciary's Independence Myth, James E. Moliterno
Faculty Publications
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
Faculty Publications
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.
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.
Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein
Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein
Faculty Publications
No abstract provided.
The Administrative Judiciary's Independence Myth, James E. Moliterno
The Administrative Judiciary's Independence Myth, James E. Moliterno
Faculty Publications
No abstract provided.
Policymaking By The Administrative Judiciary, Charles H. Koch Jr.
Policymaking By The Administrative Judiciary, Charles H. Koch Jr.
Faculty Publications
No abstract provided.
Policymaking By The Administrative Judiciary, Charles H. Koch Jr.
Policymaking By The Administrative Judiciary, Charles H. Koch Jr.
Faculty Publications
No abstract provided.
Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese
Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese
Faculty Publications
No abstract provided.
Statutory Interpretation In Econotopia, Nathan B. Oman
Statutory Interpretation In Econotopia, Nathan B. Oman
Faculty Publications
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 …
Attitudes About Attitudes, Michael J. Gerhardt
Attitudes About Attitudes, Michael J. Gerhardt
Faculty Publications
No abstract provided.
Congressional Procedure And Statutory Interpretation, Larry Evans, Jarrell Wright, Neal Devins
Congressional Procedure And Statutory Interpretation, Larry Evans, Jarrell Wright, Neal Devins
Faculty Publications
No abstract provided.