Law Commons^™

The Long Shadow Of United States V. Rosenberg: A Biographical Perspective On The Hon. Irving Robert Kaufman, Rodger D. Citron

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No abstract provided.

Judicial Consensus: Why The Supreme Court Should Decide Its Cases Unanimously, David Orentlicher

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Like Congress and other deliberative bodies, the Supreme Court decides its cases by majority vote. If at least five of the nine Justices come to an agreement, their view prevails. But why is that the case? Majority voting for the Court is not spelled out in the Constitution, a federal statute, or Supreme Court rules.

Nor it is obvious that the Court should decide by a majority vote. When the public votes on a ballot measure, it typically makes sense to follow the majority. The general will of the electorate ought to govern. But judicial decisions are not supposed to …

A Judge Never Writes More Freely: A Separate-Opinions Citation-Network Approach To Assessing Judicial Ideology, Joseph S. Miller

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What do judges really care about? Scholars have used various methods to identify a judge’s policy preferences. The standard method in political science, called the Martin-Quinn score, counts a judge’s votes for conservative or liberal outcomes. But judges don’t just vote, they give reasons in written opinions. Reason-giving is not only part of the tradition of common-law decision making but is also central to rule-of-law ideals, concerns that are not the focus most empirical methodologies. What’s more, the reasons a judge gives for reaching a conclusion provide powerful evidence for what the judge herself cares about. That is especially the …

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

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This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was …

Rbg And Gender Discrimination, Eileen Kaufman

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No abstract provided.

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

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No abstract provided.

Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron

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No abstract provided.

Talking Back In Court, M. Eve Hanan

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No abstract provided.

The Rhetoric Of Racism In The United States Supreme Court, Kathryn M. Stanchi

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This Article is the first study that categorizes and analyzes all the references to the terms "racist," "racism," and "white supremacy" throughout Supreme Court history. It uses the data to tease out how the Court shaped the meaning of these terms and uncovers a series of patterns in the Court's rhetorical usages. The most striking pattern uncovered is that, for the Supreme Court, racism is either something that just happens without any acknowledged racist actor or something that is perpetrated by a narrow subset of usual suspects, such as the Ku Klux Klan or Southern racists. In the Supreme Court's …

Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel

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In Part I, I discuss the reasons why corpus linguistics should not be considered in isolation from contextual factors, as the latter often illuminate meanings that cannot be found from simply chronicling the usage of a given word. In Part II, I demonstrate, through the lens of three Supreme Court cases, that corpus linguistics does not aid interpretation when the words of a statute or document are clear, but their application to the facts at hand is not. My critique of corpus linguistics mirrors the larger, long-running, and ongoing debate of the merits of a more textual approach to interpretation …

Trump V. Mazars Usa, Llp: The Case Of The Chief Justice And The Congressional Subpoenas, Rodger D. Citron

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No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

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No abstract provided.

“Remarkable Influence”: The Unexpected Importance Of Justice Scalia’S Deceptively Unanimous And Contested Majority Opinions, Linda L. Berger, Eric C. Nystrom

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What constitutes judicial influence and how should it be measured? Curious about the broader role that rhetoric plays in judicial influence over time, we undertook a rhetorical-computational analysis of the 282 majority opinions that Justice Scalia wrote during his 30 years on the Supreme Court. Our analysis is the first to examine the full majority opinion output of a Supreme Court justice using a unique “medium data” approach that combines rhetorical coding with quantitative analysis relying on Shepard’s Citations and LexisNexis headnotes. The resulting study casts doubt on the ability of judicial authors, including Justice Scalia, to control the extent …

Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure

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So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.

Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending …

Judicial Disqualification: Federal-State Distinctions, Jeffrey W. Stempel

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Federal and state law regarding disqualification (aka recusal) of judges is both similar and different, requiring that counsel be aware of federal and state statutes, the Nevada Code of Judicial Conduct and even constitutional considerations.

Why Women? Judging Transnational Courts And Tribunals, Kathryn M. Stanchi, Bridget J. Crawford, Linda L. Berger

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Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more …

Political Dysfunction And Constitutional Structure, David Orentlicher

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In this essay, Professor Orentlicher reviews three books that analyze different features of the U.S. political system:

1. Michelle Belco & Brandon Rottinghaus, The Dual Executive: Unilateral Orders in a Separated and Shared Power System (Stanford Univ. Press 2017).

2. Richard A. Posner, The Federal Judiciary: Strengths and Weaknesses (Harvard Univ. Press 2017).

3. Martin H. Redish, Judicial Independence and the American Constitution: A Democratic Paradox (Stanford Univ. Press 2017).

Rewriting Judicial Opinions And The Feminist Scholarly Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

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In this introduction to an online symposium on Feminist Judgments: Rewritten Opinions of the United States Supreme Court, the editors of this groundbreaking project reflect on the journey and what remains to be done.

Judicial Peremptory Challenges As Access Enhancers, Jeffrey W. Stempel

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Discussions regarding diminishing access to justice have centered on the high disputing costs, gradual contraction of substantive rights, and increasingly defendant-friendly procedure. The importance of the ideological, experiential, and jurisprudential orientation of the judges presiding over litigation at the trial level has received much less-and insufficient-attention. Because so much focus has been on federal appellate courts, commentators have largely overlooked a potentially powerful tool for improving access and promoting a fair airing of claims at the trial level: a litigant's automatic ability to transfer a case to a different judge as a matter of right to avoid judges who are …

Justice As Fair Division, Ian C. Bartrum

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The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court's decision-making process might act to reverse this loop and work to depoliticize the Court …

The Difficulty Of Discerning The Effect Of Neuroscience: A Peer Commentary Of Shen Et Al. 2018, John B. Meixner Jr.

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Neuroscience is often considered to have a certain ‘seductive allure’.1 Its mystique should not besurprising. Seeking to understand the network of nearly 100 billion neurons that make up the human brain, neuroscience examines some of the most difficult questions imaginable. And yet, it is also a deeply personal discipline—questions like, ‘How do we create memories?’ and ‘What causes emotions?’ touch on experiences shared by all people.

Does the mystique of neuroscience cause individuals to ascribe undue weight to neuroscientific findings, or assume that neuroimages indicate research quality? Over the past decade, a literature has sprung up seeking to answer questions …

Remorse Bias, M. Eve Hanan

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In this article, Professor M. Eve Hanan addresses how implicit cognitive biases may affect judges when they decide whether to credit defendants' displays of remorse and how we can lessen the effects of that bias. Part I of this article introduces the main ideas to be discussed. Part II establishes the salience of remorse to punishment decisions and then demonstrates the ambiguity involved in assessing the sincerity of remorse. Part III examines existing research on implicit biases associating African Americans with criminality to consider whether judges are likely to view African American defendants' expressions of remorse as insincere and, thus, …

Against Administrative Judges, Kent H. Barnett

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The single largest cadre of federal adjudicators goes largely ignored by scholars, policymakers, courts, and even litigating parties. These Administrative Judges or “AJs,” often confused with well-known federal Administrative Law Judges or “ALJs,” operate by the thousands in numerous federal agencies. Yet unlike ALJs, the significantly more numerous AJs preside over less formal hearings and have no significant statutory protections to preserve their impartiality. The national press has recently called attention to the alleged unfairness of certain ALJ proceedings, and regulated parties have successfully enjoined agencies’ use of ALJs. While fixes are necessary for ALJ adjudication, any solution that ignores …

An Empirical Research Agenda For The Forensic Sciences, Jonathan J. Koehler, John B. Meixner Jr.

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After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we …

Decision Making And The Law: Truth Barriers, Jonathan J. Koehler, John B. Meixner Jr.

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Reaching an accurate outcome is a central goal of the American trial. But structural features of the legal system, in combination with the cognitive shortcomings of legal actors, hinder the search for truth. Regarding the legal system, various rules and policies restrict decision makers’ access to evidence, violate the laws of probability, and limit the evidentiary concerns that may be considered on appeal. Regarding legal actors, informational deficits (particularly regarding scientific and statistical evidence) and cognitive biases of police investigators, witnesses (lay and expert), attorneys, judges, and jurors pose serious obstacles. We conclude by suggesting that research in judgment and …

Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine

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Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, …

Assumed Sane, Fatma Marouf

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In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S- that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …

Believable Victims: Asylum Credibility And The Struggle For Objectivity, Michael Kagan

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Asylum adjudication is often the invisible frontline in the struggle by oppressed groups to gain recognition for their plights. Through this process, individual people must tell their stories and try to show that they are genuine victims of persecution rather than simply illegal immigrants attempting to slip through the system. In 2002, because the world had not yet acknowledged the nature of the calamity from which they were escaping, many Darfurian asylum cases would have relied on the ability of each individual to convince government offices to believe their stories. They would have had to be deemed “credible,” or they …

A Rhetorician’S Practical Wisdom, Linda L. Berger

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For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a …

Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.

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In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly …