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Full-Text Articles in Law
The Haves Of Procedure, Ion Meyn
The Haves Of Procedure, Ion Meyn
William & Mary Law Review
In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.
The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the …
Some Thoughts On The Study Of Judicial Behavior, Lee Epstein
Some Thoughts On The Study Of Judicial Behavior, Lee Epstein
William & Mary Law Review
Back in the 1940s the political scientist C. Herman Pritchett began tallying the votes and opinions of Supreme Court Justices. His goal was to use data to test the hypothesis that the Justices were not only following the “law,” but were also motivated by their own ideological preferences.
With the hindsight of nearly eighty years, we know that Pritchett’s seemingly small project helped to create a big field: Judicial Behavior, which I take to be the theoretical and empirical study of the choices judges make. Political scientists continue to play a central role, but they are now joined by economists, …
Friendly Precedent, Anthony Niblett, Albert H. Yoon
Friendly Precedent, Anthony Niblett, Albert H. Yoon
William & Mary Law Review
This Article explores which legal precedents judges choose to support their decisions.When describing the legal landscape in a written opinion, which precedent do judges gravitate toward? We examine the idea that judges are more likely to cite friendly precedent. A friendly precedent, here, is one that was delivered by Supreme Court Justices who have similar political preferences to the lower court judges delivering the opinion. In this Article, we test whether a federal Court of Appeals panel is more likely to engage with binding Supreme Court precedent when the political flavor of that precedent is aligned with the political composition …
The Rhetoric Of Constitutional Absolutism, Eric Berger
The Rhetoric Of Constitutional Absolutism, Eric Berger
William & Mary Law Review
Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
William & Mary Law Review
The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of …
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
William & Mary Law Review
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 …
Law Versus Ideology: The Supreme Court And The Use Of Legislative History, David S. Law, David Zaring
Law Versus Ideology: The Supreme Court And The Use Of Legislative History, David S. Law, David Zaring
William & Mary Law Review
Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique— namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed …
Randomization And Adjudication, Adam M. Samaha
Randomization And Adjudication, Adam M. Samaha
William & Mary Law Review
Flipping a coin to decide a case is among the most serious forms of judicial misconduct. Yet judges react quite differently to other types of lotteries. Judges tend to tolerate or encourage deliberately random decisions in nonjudicial settings ranging from military drafts to experimental welfare requirements. Equally striking, most adjudicators now embrace randomization within their own institutions: they commonly use lotteries to assign incoming cases to each other. This practice creates a remarkable tension. Because adjudicators vary in competence and ideology, randomizing their case assignments will effectively randomize outcomes in a subset of merits decisions. We might then ask whether …
Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton
Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton
William & Mary Law Review
No abstract provided.
Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown
Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown
William & Mary Law Review
Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal …
Political Judging: When Due Process Goes International, Montré D. Carodine
Political Judging: When Due Process Goes International, Montré D. Carodine
William & Mary Law Review
The Supreme Court's recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. This Article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgments obtained abroad. Courts reviewing foreign judgments to determine whether they areworthy of recognition have created an "international due process"analysis. …
A Products Liability Theory For The Judicial Regulation Of Insurance Policies, Daniel Schwarcz
A Products Liability Theory For The Judicial Regulation Of Insurance Policies, Daniel Schwarcz
William & Mary Law Review
Many insurance law commentators believe that judges should regulate the substance of insurance policies by refusing to enforce insurance policy terms that are exploitive or otherwise unfair. The most common guide for the judicial regulation of insurance policies is the "reasonable expectations doctrine," which requires courts to disregard coverage restrictions that are beyond insureds' reasonable expectations unless the insurer specifically informed the insured about the restriction at the time of purchase. This Article argues that although the judiciary has a potential role to play in policing insurance policy terms, that role should not be defined by reference to consumers' reasonable …
In A Federal Case, Is The State Constitution Something Important Or Just Another Piece Of Paper?, Randall T. Shepard
In A Federal Case, Is The State Constitution Something Important Or Just Another Piece Of Paper?, Randall T. Shepard
William & Mary Law Review
No abstract provided.
Barking Up The Wrong Tree: The Misplaced Furor Over The Feeney Amendment As A Threat To Judicial Independence, David P. Mason
Barking Up The Wrong Tree: The Misplaced Furor Over The Feeney Amendment As A Threat To Judicial Independence, David P. Mason
William & Mary Law Review
No abstract provided.
Adjudicating In Anarchy: An Expressive Theory Of International Dispute Resolution, Tom Ginsburg, Richard H. Mcadams
Adjudicating In Anarchy: An Expressive Theory Of International Dispute Resolution, Tom Ginsburg, Richard H. Mcadams
William & Mary Law Review
Frequent compliance with the adjudicative decisions of international institutions, such as the International Court of Justice (ICJ), is puzzling because these institutions do not have the power domestic courts possess to impose sanctions. This Article uses game theory to explain the power of international adjudication via a set of expressive theories, showing how law can be effective without sanctions. When two parties disagree about conventions that arise in recurrent situations involving coordination, such as a convention of deferring to territorial claims of first possessors, the pronouncements of third-party legal decision makers-adjudicators--can influence their behavior in two ways. First, adjudicative expression …
Taking Behavioralism Too Seriously? The Unwarranted Pessimism Of The New Behavioral Analysis Of Law, Gregory Mitchell
Taking Behavioralism Too Seriously? The Unwarranted Pessimism Of The New Behavioral Analysis Of Law, Gregory Mitchell
William & Mary Law Review
Legal scholars increasingly rely on a behavioral analysis of judgment and decision making to explain legal phenomena and argue for legal reforms. The. main argument of this new behavioral analysis of the law is twofold: (1)All human cognition is beset by systematic flaws in the way that judgments and decisions are made, and theseflaws lead to predictable irrational behaviors and (2) these widespread and systematic nonrational tendencies bring into serious question the assumption of procedural rationality underlying much legal doctrine. This Article examines the psychological research relied on by legal behavioralistst o form this argumenta nd demonstratest hat this research …
A Judge For All Seasons, R. Kent Newmyer
A Judge For All Seasons, R. Kent Newmyer
William & Mary Law Review
No abstract provided.
John Marshall: Remarks Of October 6, 2000, William H. Rehnquist
John Marshall: Remarks Of October 6, 2000, William H. Rehnquist
William & Mary Law Review
No abstract provided.
The Use That The Future Makes Of The Past: John Marshall's Greatness And Its Lessons For Today's Supreme Court Justices, Jack M. Balkin
The Use That The Future Makes Of The Past: John Marshall's Greatness And Its Lessons For Today's Supreme Court Justices, Jack M. Balkin
William & Mary Law Review
No abstract provided.
Nomos, Narrative, And Adjudication: Toward A Jurisgenetic Theory Of Law, Franklin G. Snyder
Nomos, Narrative, And Adjudication: Toward A Jurisgenetic Theory Of Law, Franklin G. Snyder
William & Mary Law Review
No abstract provided.
Gazing Into The Crystal Ball: Reflections On The Standards State Judges Should Use To Ascertain Federal Law, Donald H. Zeigler
Gazing Into The Crystal Ball: Reflections On The Standards State Judges Should Use To Ascertain Federal Law, Donald H. Zeigler
William & Mary Law Review
No abstract provided.
Justice O'Conner's Dilemma: The Baseline Question, Suzanna Sherry
Justice O'Conner's Dilemma: The Baseline Question, Suzanna Sherry
William & Mary Law Review
No abstract provided.
Molecular Motions: The Holmesian Judge In Theory And Practice, Thomas C. Grey
Molecular Motions: The Holmesian Judge In Theory And Practice, Thomas C. Grey
William & Mary Law Review
No abstract provided.
Stripped Down Like A Runner Or Enriched By Experience: Bias And Impartiality Of Judges And Jurors, Martha Minow
Stripped Down Like A Runner Or Enriched By Experience: Bias And Impartiality Of Judges And Jurors, Martha Minow
William & Mary Law Review
No abstract provided.
The Impact Of Substantive Interests On The Law Of Federal Courts, Michael Wells
The Impact Of Substantive Interests On The Law Of Federal Courts, Michael Wells
William & Mary Law Review
No abstract provided.
Philosophy, History, And Judging, Donald P. Boyle Jr.
Philosophy, History, And Judging, Donald P. Boyle Jr.
William & Mary Law Review
No abstract provided.
A Lesson In Incaution, Overwork, And Fatigue: The Judicial Miscraftsmanship Of Segura V. United States, Joshua Dressler
A Lesson In Incaution, Overwork, And Fatigue: The Judicial Miscraftsmanship Of Segura V. United States, Joshua Dressler
William & Mary Law Review
No abstract provided.
Book Review Of Courts Of Appeal In The Federal Judicial System: A Study Of The Second, Fifth, And District Of Columbia Circuits, Peter G. Fish
Book Review Of Courts Of Appeal In The Federal Judicial System: A Study Of The Second, Fifth, And District Of Columbia Circuits, Peter G. Fish
William & Mary Law Review
No abstract provided.
Legal Philosophy - Recent Contributions, Neil W. Schilke
Legal Philosophy - Recent Contributions, Neil W. Schilke
William & Mary Law Review
No abstract provided.