Law Commons^™

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Law Library Blog (September 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

What Makes A Good Judge?, Brian M. Barry

Reports

This article overviews research demonstrating the factors beyond the law that can affect judicial decision-making.

Rwu First Amendment Blog: Jared Goldstein's Blog: Masterpiece Cakeshop Ruling: No Constitutional Right To Discriminate (For Now) 06-05-2018, Jared A. Goldstein

Law School Blogs

No abstract provided.

Newsroom: Have We Outgrown Brown? 02-06-2018, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

An Unfinished Project: John Courtney Murray, Religious Freedom, And Unresolved Tensions In Contemporary American Society, Miguel H. Diaz

Philosophy: Faculty Publications and Other Works

Religious freedom has re-emerged as a controversial issue in the courts, in the Church, and in the public square in the United States. This essay examines the groundbreaking contribution that John Courtney Murray, SJ made to bring about a paradigm shift in Roman Catholic teaching on religious freedom. This shift can be traced to the Church’s transitioning from the view that “error has no rights” to only people—not ideas—have rights. The essay underscores Murray’s focus on human conscience and addresses tensions that have emerged in the United States between voices that affirm the right to religious freedom and those that …

The Lottery Docket, Daniel Epps, William Ortman

Law Faculty Research Publications

No abstract provided.

A Reflection On The Ethics Of Movement Lawyering, Susan Carle, Scott L. Cummings

Articles in Law Reviews & Other Academic Journals

This essay takes a new look at legal ethics issues salient to "movement lawyers" who maintain a sustained commitment to social movement goals and collaborate with social movement organizations over time to achieve them. The essay provides a historical overview of movement lawyering, tracing its development to current practice in which movement lawyers work in collaboration with mobilized social movement groups, though not always in traditional lawyer-client relationships. As this analysis reveals, contemporary movements employ a sophisticated array of strategies, which may pull lawyers away from traditional representation paradigms. We argue that the legal ethics literature on movement lawyering must …

Court Capture, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …

#Sowhitemale - Federal Civil Rulemaking, Brooke D. Coleman

Faculty Articles

116 out of 136. That is the number of white men who have served on the 82-year old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate even in the context of the white-male-dominated legal profession. Were the rules simply a technical set of instructions made by a neutral set of experts, perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rulemakers—while expert—are …

The Federal Equity Power, Michael T. Morley

Scholarly Publications

Throughout the first century and a half of our nation’s history, federal courts treated equity as a type of general law. They applied a uniform, freestanding body of principles derived from the English Court of Chancery to all equitable issues that came before them, regardless of whether a case arose under federal or state law. In 1945, in Guaranty Trust Co. v. York, the United States Supreme Court held that, notwithstanding the changes wrought by the Erie Doctrine, federal courts may continue to rely on these traditional principles of equity to determine the availability of equitable relief, such as injunctions, …

The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley

Publications

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, …

Re-Examining The Law And Economics Of The Business Judgment Rule: Notes For Its Implementation In Non-Us Jurisdictions, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

The business judgment rule, as it has been traditionally understood, seems to be based on three underlying assumptions that make this rule economically desirable. First, directors are subject to a credible threat of being sued for a breach of the duty of care. Second, the primary role of the corporation is to maximise shareholder value. Third, shareholders want the directors to pursue those investment projects with the highest net present value regardless of their volatility. This article challenges these assumptions and argues that the business judgment rule might not be desirable in some jurisdictions outside the United States and even …

Obama's Conversion On Same-Sex Marriage: The Social Foundations Of Individual Rights, Robert L. Tsai

Faculty Scholarship

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …

Doctrinal Reasoning As A Disruptive Practice, Jessie Allen

Articles

Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

Trouble Counting To Three: Circuit Splits And Confusion In Interpreting The Prison Litigation Reform Act's Three Strikes Rule, 28 U.S.C. Sec. 1915(G), Molly Guptill Manning

Articles & Chapters

No abstract provided.

Crowdsourcing & Data Analytics: The New Settlement Tools, Christopher Robertson, Bernard Chao, David Yokum

Faculty Scholarship

By protecting the right to a jury, the State and Federal Constitutions recognize the fundamental value of having civil and criminal disputes resolved by laypersons. However actual trials are relatively rare, in part because parties seek to avoid the risks and cost of trials, and courts seek to clear dockets efficiently. Even as settlement may be desirable, it is sometimes difficult to resolve a dispute. Parties naturally view their cases from different perspectives, and these perspectives often cause both sides to be overly optimistic, seeking unreasonably large or unreasonably small resolutions.

This article describes a novel method of incorporating layperson …

Erie As A Way Of Life, Ernest A. Young

Faculty Scholarship

No abstract provided.

Everything Is Contingent: A Comment On Bob Gordon's Taming The Past, Kunal M. Parker

Articles

No abstract provided.

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …

Introduction: Canada's Chief Justice: Beverley Mclachlin's Legacy Of Law And Leadership, Marcus Moore

All Faculty Publications

Summarizes the legacy of law and leadership of Beverley McLachlin, the longest-serving Chief Justice of the Supreme Court of Canada (2000-2017), and first female Chief Justice.

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …