Law Commons^™

How The Boogeyman Saved Brett Kavanaugh, Cathren Page

Articles

We love to hate these boogeymen. When the societal narrative creates these invisible boogeymen, people can pour their rage against sexual abuse into these faceless antagonists. At the same time, the enraged survivors and protectors avoid conflicts with family, neighbors, colleagues, and social acquaintances who might actually commit or enable sexual abuse. We can dodge sticky questions regarding how a churchgoer, a judge, or an Ivy Leaguer could have committed a heinous act. The survivors can avoid all the victim-blaming backlash, threats of violence, and invalidation that accompanies reporting a sexual offense. Moreover, having less power on their own, survivors …

New Metrics And The Politics Of Judicial Selection, Jeremy Kidd

Articles

Recent Supreme Court nomination hearings have become increasingly rancorous, revealing the increasing political importance of the judiciary in our system of government. We need to know more about those who are chosen to wield this power, but those being considered have strong incentives to obscure all but the most basic characteristics of integrity, decorum, intellect, and courtesy. One of the most important decisions in our democracy is therefore made with far less information than would be ideal. Only through development of new metrics and refinement of existing metrics can we begin to cut through obfuscation and identify the goals and …

The Changing Discourse Of The Supreme Court, Stephen M. Johnson

Articles

In addition to exploring whether the Court’s opinions have become less readable, this Article also examines whether factors identified in other studies, such as the opinion type or the subject matter in dispute, correlate to the readability of the Court’s opinions, either in the 1930's or today, and whether that has changed over time.

Part I outlines the criticisms that have been leveled at the Supreme Court’s opinions and some of the possible reasons for the obfuscation of the opinions. Part II explores the purposes of, and intended audiences for, Supreme Court opinions and considers whether it really matters whether …

The Roberts Court And The Environment, Stephen M. Johnson

Articles

During the October 2008 Term, the Supreme Court decided five cases that raised issues of environmental law and the environment was the loser in each case. While it may be difficult to characterize the decisions of the Roberts Court, generally, as “pro-environment” or “antienvironment,” a couple themes consistently appear in the Court’s decisions. First, in most of the environmental cases, the Court has adopted a position advocated or defended by a federal, state or local government when governmental interests are at issue. Second, in all of the cases that implicate federalism concerns, the Court has rendered decisions that favor States’ …

The Third Best Choice: An Essay On Law And History, Theodore Y. Blumoff

Articles

The thesis of this Essay is that our use of history is as essential and unavoidable as conclusive answers are irretrievable. Irretrievability exists whether the historical reality sought results from a survey of traditional historical materials in an effort to recapture original understanding, or from a common-law effort to discover the Court's own history of an issue. In either case, however, the need to attempt to recover historical truths is perceived as essential. I subscribe, for the most part, to the contextualist premise that we cannot recover sufficient historical data on issues that matter to make history determinate in the …