Law Commons^™

Realizing Dispute Resolution: Meeting The Challenges Of Legal Realism Through Mediation, Robert Rubinson

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No abstract provided.

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

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The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

A Justice System Overwhelmed, Colin Starger

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No abstract provided.

The Holmes School Of Law: A Proposal To Reform Legal Education Through Realism, Robert Rubinson

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This article proposes the formation of a new law school, the Holmes School of Law. The curriculum of the Holmes School would draw upon legal realism, particularly as articulated by Oliver Wendell Holmes. The proposed curriculum would focus on educating students about "law in fact"—how law is actually experienced. It rejects the idea that legal education should be about reading cases written by judges who not only bring their own biases and cultural understandings to their role, but who also ignore law as experienced, which, in the end, is what law is. This disconnect is especially troubling because virtually all …

Therapeutic Jurisprudence, Barbara A. Babb, David B. Wexler

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Therapeutic jurisprudence, developed in the late 1980s, is a field of inquiry. It is a lens through which to examine the effects of substantive laws, legal rules, Iegal procedures, and the behavior of legal actors, including judges, lawyers, court personnel, and service providers, on the psychological and emotional well·being of justice system participants, including the Iegal actors themselves. Therapeutic Jurisprudence is a perspective or framework, and its use suggests the need to conduct empirical research to determine whether outcomes resulting from the application of substantive laws, legal rules, and legal procedures and from the behavior of legal actors have therapeutic …

What Is The Rule Of Law And Why Is It So Important?, Mortimer N.S. Sellers

Book Chapters

This chapter considers the rule of law from within the rule of law tradition, to clarify what the rule of law is, why it is so valuable, and how we can secure it.

Mapping Supreme Court Doctrine: Civil Pleading, Scott Dodson, Colin Starger

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This essay, adapted from the video presentation available on Vimeo as #89845875, graphically depicts the genealogy and evolution of federal civil pleading standards in U.S. Supreme Court opinions over time. We show that the standard narrative — of a decline in pleading liberality from Conley to Twombly to Iqbal — is complicated by both progenitors and progeny. We therefore offer a fuller picture of the doctrine of Rule 8 pleading that ought to be of use to judges and practitioners in federal court. We also hope, through the video presentation, to introduce a new visual format for academic scholarship that …

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

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It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes?

This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because …

Expanding Stare Decisis: The Role Of Precedent In The Unfolding Dialectic Of Brady V. Maryland, Colin Starger

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Does stare decisis constrain the expansion of constitutional doctrine? Does existing precedent preclude the Supreme Court from expanding a criminal defendant’s right to exculpatory evidence? While commentators frequently clash on when stare decisis should prevent the Court from overruling its own precedents, the question of when fidelity to precedent should inhibit doctrinal expansion is surprisingly under-theorized. This Article begins to fill this gap through an in-depth case study of stare decisis and the expansion of criminal due process doctrine.

This Article analyzes the longstanding constitutional dialectic between procedural and substantive schools of criminal due process. Focus is on Brady v. …

Exile On Main Street: Competing Traditions And Due Process Dissent, Colin Starger

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Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in case law. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in the empirical approach, this Article proposes an alternative method that permits analysis of contextual and …

Punitive Damages Vs. The Death Penalty: In Search Of A Unified Approach To Jury Discretion And Due Process Of Law, José F. Anderson

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The role of the jury in awarding monetary damages to plaintiffs in a wide range of civil cases has captured the attention of the media, contemporary non-fiction writers, and reform-minded politicians in recent years. Particular attention has been focused on huge jury awards, which has led many commentators to criticize the wisdom of permitting juries to move so much money from one place to another. Although the right to a jury trial, and with it the exercise of broad judicial discretion, is constitutionally based, many reform efforts have moved toward removing juries from cases both as to the subject matter …

Response: Metaphor And Meaning In Trawling For Herring, Colin Starger

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In this essay responding to Professor Jennifer Laurin’s essay, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, I advance Laurin’s project of recovering the exclusionary rule’s lost lineage through a critical reflection upon her doctrinal metaphors. Specifically, I parse the jurisprudential significance of Laurin’s idea of “trawling” in order to understand Herring v. United States and show how this metaphor successfully builds upon a second water-based metaphor animating Laurin’s analysis — the “hydraulics” of borrowing and convergence. By attending to both Laurin’s specific exclusionary rule arguments and to how Laurin’s conceptualization of “hydraulics” extends Professors Tebbe and Tsai’s constitutional …

In Search Of "Laissez-Faire Constitutionalism", Matthew Lindsay

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This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritarian rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the "laissez-faire constitutionalism" of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of "vested rights" and the iconic, if …

Imagining Judges That Apply Law: How They Might Do It, James Maxeiner

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"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law.

American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts …

Leaving Maryland Workers Behind: A Comparison Of State Employee Leave Statutes, Michael Hayes

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Maryland law is not quite a blank slate for employee leave rights-but it is close. While the state forbids employers from terminating employees for job time lost for jury service or attending a court proceeding in response to a subpoena or pursuant to victim's rights laws, Maryland is one of a "select few" that does not require any breaks for adult workers, including time off for meals. Maryland law does not require family or medical leave for private sector workers. In fact, the state's most generous leave law stems from repealing antiquated "blue laws" that required businesses to be closed …

Under-The-Table Overruling, Christopher J. Peters

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In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

Guiding Litigation: Applying Law To Facts In Germany, James Maxeiner

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"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a "simple-minded demand" that is "silly and misleading. It is not; it is what the public rightly expects from law. H.L.A. Hart, reminded U.S. jurists that "conventional legal thought in all countries conceives as the standard judicial function: the impartial application of determinant existing rules in the settlement of disputes."

This essay discusses the German method of judicial applying of law to facts. called, in German, the "Relationstechnik," that is, in English, literally "relationship technique." This essay shows how …

In The Spirit Of Ubuntu: Enforcing The Rights Of Orphans And Vulnerable Children Affected By Hiv/Aids In South Africa, John Bessler

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This Article discusses the traditional African concept of ubuntu, which is frequently cited in South African jurisprudence, and analyzes South Africa's lack of compliance with the human rights of orphans and vulnerable children whose lives have been affected by HIV/AIDS. The Constitution of the Republic of South Africa explicitly protects children's rights and various socio-economic rights of concern to children, and the Constitutional Court of South Africa has held such rights to be justiciable. The constitutional rights of South African children affected by HIV/AIDS, however, have been continually violated. This Article discusses how the existence of these constitutional rights may …

An Interdisciplinary Approach To Family Law Jurisprudence: Application Of An Ecological And Therapeutic Perspective, Barbara A. Babb

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No abstract provided.

Results Of A Judicial Survey On The Maryland Department Of Juvenile Services, Gloria Danziger, Barbara A. Babb

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No abstract provided.

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin

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Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary's loss of focus on the core function of trying jury cases; the business community's loss of interest in jury adjudication (opting out of the legal system altogether in favor of arbitration); Congress's marginalizing the district court judiciary; and the …

A Government Of Laws And Not Men: Prohibiting Non-Precedential Opinions By Statute Or Procedural Rule, Amy E. Sloan

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Non-precedential judicial opinions issued by the federal appellate courts have generated significant controversy. Given that the federal appellate courts are unlikely to abandon the practice of issuing non-precedential opinions on their own, what other options exist for prohibiting the practice? This article discusses the constitutionality of a procedural rule or statute prohibiting the federal appellate courts from prospectively designating selected opinions as non-precedential. It explains how the rules governing non-precedential opinions allow federal appellate courts to "opt out" of their own rules of precedent. It then examines the rulemaking process, showing how the Federal Rules of Appellate Procedure are promulgated …

Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner

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Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the legal …

Judicial Independence In Family Courts, Barbara A. Babb, Judith D. Moran

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No abstract provided.

Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters

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This article, which has been published in slightly revised form at 96 Nw. U.L. Rev. 1 (2001), is an application and extension of my theory of adjudication as representation, which holds that the procedural elements of litigant participation and interest representation confer democratic legitimacy on court decisions. In the article, I first develop the notion of a "majoritarian difficulty": the often-ignored tension between democratic self-rule and majority domination of the political minority. Second, I offer a model of majoritarianism as a type of adjudication, in which interested parties lobby for favorable decisions by a neutral decisionmaker. Third, I contend that …

The Burdens And Benefits Of The American Jury, José F. Anderson

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There is no institution in the legal system more controversial than the American Jury. It has been praised and hated by people from all walks of life. James Madison once called it among "the most valuable" rights included in the Bill of Rights. Robert Allan Rutland, The Birth of the Bill of Rights 1776-1791, at 208 (2nd ed ., Northeastern Univ. Press 1991) (1955) (quoting 1 Annals of Cong. 755 (Joseph Gales ed., 1789)). The business community sometimes complains that it paralyzes its ability to grow. Politicians have used it as grist for their mills calling for jury reform. Television …

Assessing The New Judicial Minimalism, Christopher J. Peters

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In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …

When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson

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Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have …

Managed Care And Managed Sentencing — A Tale Of Two Systems, Ronald Weich

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The daily injustices mount. The front line professionals who administer the system cry out for more discretion to depart from the rigid rules that bind them, Congress finally hears their call, and is poised to enact sweeping reforms.

Are improvements in federal sentencing law on the way? Probably not in the near future. But the new Congress will surely take up proposals to regulate the managed health care industry, and the impending debate over a proposed "Patients' Bill of Rights" law offers important lessons for federal sentencing policy.

At first blush, sentencing reform and health care reform have about as …

Fashioning An Interdisciplinary Framework For Court Reform In Family Law: A Blueprint To Construct A Unified Family Court, Barbara A. Babb

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Family law cases focus on some of the most intimate, emotional, and all-encompassing aspects of parties' personal lives. Based on its study of unmet legal needs of children and their families, the American Bar Association has recommended the establishment of unified family courts in all jurisdictions. This article evaluates how America's courts adjudicate family law matters and advocates systemic change by offering an interdisciplinary ecological and therapeutic approach to the creation of unified family courts. The author presents a comprehensive overview of the results of her nationwide survey determining how each state's courts handle family law matters. The results of …