Law Commons^™

The Foreshadow Docket, Bert I. Huang

Faculty Scholarship

Imagine the Supreme Court issuing an emergency order that signals interest in departing from precedent, as if foreshadowing a change in the law. Seeing this, should the lower courts start ruling in ways that also anticipate the law of the future? They need not do so in their merits rulings. That much is clear. Such a signal does not create new binding precedent. Rather, it reflects the Justices’ guess about the future of the law — and what if that guess is wrong?

Yet for a lower court ruling on a temporary stay or injunction, the task seems to call …

Rolling Back Transparency In China's Courts, Benjamin L. Liebman, Rachel E. Stern, Xiaohan Wu, Margaret Roberts

Faculty Scholarship

Despite a burgeoning conversation about the centrality of information management to governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases from China’s online public database of court decisions. Using our own dataset of all 42 million cases made public in China between January 1, 2014, and September 2, 2018, we examine the recent deletion of criminal cases from the China Judgements Online website. We find that the deletion of cases likely results …

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg

Faculty Scholarship

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence” – the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law's default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit, commercial …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

Article Iii And Supranational Judicial Review, Henry Paul Monaghan

Faculty Scholarship

With the rise of supranational legislative bodies, the use of supranational adjudicatory bodies has also increased. These adjudicatory bodies have even been allowed to review the domestic law decisions offederal administrative agencies, and their decisions are insulated from any review by Article III courts. These developments have been met by intense opposition. This Article addresses the question whether, as claimed by several writers, the emerging supranational adjudicatory order impermissibly contravenes the "essential attributes of the judicial power established by Article III." Examining two case studies, the North American Free Trade Agreement (NAFTA) and the Supreme Court's recent decisions regarding Article …

Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt

Faculty Scholarship

In 1947, this Review published two lectures on statutory interpretation by Jerome Frank and Felix Frankfurter. Both jurists were concerned with a basic question: How constrained are judges when they interpret legislation? The answers each gives, while similar in some respects, differ strikingly. In arguing that interpretation necessarily involves a creative element, Frank analogizes the role of a judge in interpreting legislation to that of a performer in interpreting a musical composition. Although he argues that judicial creativity is constrained, Frank views statutory interpretation as "a kind of legislation." For Frankfurter, by contrast, in construing a statute, a judge is …

Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan

Faculty Scholarship

Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design, …

The Courts And The Congress: Should Judges Disdain Political History?, Peter L. Strauss

Faculty Scholarship

In an earlier article in these pages, Professor John Manning argued that the use of legislative materials by courts in effect permits Congress to engage in delegation of its authority to subunits of the legislature, in violation of the separation of powers. Professor Strauss, acknowledging that the previous generation of courts may have excessively credited the minutiae of legislative history, responds that judicial attention to the political history of legislation is required, not forbidden, by considerations of constitutional structure. Only awareness of that history will promote interpretation reflective of the context and political moment of Congress's action. Our history of …

Police Discretion And The Quality Of Life In Public Places: Courts, Communities, And The New Policing, Debra A. Livingston

Faculty Scholarship

The advent of community and problem-oriented policing – the so-called "quality-of-life" policing philosophies – raises complex questions concerning police discretion in addressing minor street misconduct and judicial response to that discretion. In this Article, Debra Livingston addresses these questions by reassessing the ways in which courts have employed the facial vagueness doctrine to limit police discretion in the performance of "order maintenance" tasks. Livingston contends that aggressive employment of the facial vagueness doctrine is an inadequate mechanism for limiting police discretion and at the same time could impair positive change in the direction of community and problem-oriented policing. As an …

The Unrecognized Government In American Courts: Upright V. Mercury Business Machines, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

What right have I, as the King's Judge, to interfere upon the subject of a contract with a country which he does not recognize?

Lord Eldon's words, written in 1823, have been echoed more than once by American judges, who have been as troubled as Eldon by problems complicated by diplomatic nonrecognition. Twentieth-century wars and revolutions have required American courts to decide whether unrecognized governments, entities created by them, their representatives, or their assignees could sue in domestic courts, often on matters of private right. Frequently, too, the courts have been perplexed by the effect of nonrecognition on the application …