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Full-Text Articles in Law
Circuit Personalities, Allison Orr Larsen, Neal Devins
Circuit Personalities, Allison Orr Larsen, Neal Devins
Faculty Publications
The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even selfimposed circuit nicknames. In this Article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality …
Weaponizing En Banc, Neal Devins, Allison Orr Larsen
Weaponizing En Banc, Neal Devins, Allison Orr Larsen
Faculty Publications
The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …
The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz
The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz
Faculty Publications
This Essay offers an unconventional approach to deterring prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is …
Here There Be Dragons: The Likely Interaction Of Judges With The Artificial Intelligence Ecosystem, Fredric I. Lederer
Here There Be Dragons: The Likely Interaction Of Judges With The Artificial Intelligence Ecosystem, Fredric I. Lederer
Popular Media
No abstract provided.
State Constitutionalism In The Age Of Party Polarization, Neal Devins
State Constitutionalism In The Age Of Party Polarization, Neal Devins
Faculty Publications
No abstract provided.
The Structural Case For Vertical Maximalism, Tara Leigh Grove
The Structural Case For Vertical Maximalism, Tara Leigh Grove
Faculty Publications
Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …
The D'Oh! Of Popular Constiutitonalism, Neal Devins
The D'Oh! Of Popular Constiutitonalism, Neal Devins
Faculty Publications
No abstract provided.
Book Review Of Clement Haynsworth, The Senate, And The Supreme Court, Davison M. Douglas
Book Review Of Clement Haynsworth, The Senate, And The Supreme Court, Davison M. Douglas
Faculty Publications
No abstract provided.
The Enduring Example Of John Marshall Harlan: "Virtue As Practice" In The Supreme Court, William W. Van Alstyne
The Enduring Example Of John Marshall Harlan: "Virtue As Practice" In The Supreme Court, William W. Van Alstyne
Faculty Publications
No abstract provided.
Playing With Numbers: Determining The Majority Of Judges Required To Grant En Banc Sittings In The United States Court Of Appeals, James J. Wheaton
Playing With Numbers: Determining The Majority Of Judges Required To Grant En Banc Sittings In The United States Court Of Appeals, James J. Wheaton
Faculty Publications
This note addresses the effects that these two interests -- majority control of circuit law and judicial integrity -- have on the appropriate definition of majority. Neither legislative history nor Supreme Court constructions of section 46(c) provide an unambiguous rule, and interpretation of the majority requirement remains within the authority of each circuit. The Judicial Conference of the United States, at its meeting in September 1984, recommended that each circuit clearly describe its en banc voting procedures. This note delineates considerations that may assist the circuit courts in their efforts to outline the method by which they should order en …
The Role Of Appellate Court In Mandatory Sentencing Schemes, Larry I. Palmer
The Role Of Appellate Court In Mandatory Sentencing Schemes, Larry I. Palmer
Faculty Publications
No abstract provided.