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Full-Text Articles in Law
Arbitration And Article Iii, Peter B. Rutledge
Arbitration And Article Iii, Peter B. Rutledge
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Does arbitration violate Article III? Despite the critical need for a coherent theory to answer this question, few commentators or courts have made serious attempts to provide one. For much of the country's history, federal courts conveniently could avoid this nettlesome question. Prior to the twentieth century, courts simply declined to enforce pre-dispute arbitration agreements as unenforceable attempts to appropriate their jurisdiction. From the early decades of the twentieth century (with the enactment of the Federal Arbitration Act (“FAA”) in 1925) through the 1960s, the non-arbitrability doctrine prevented arbitrators from resolving issues of federal statutory law. Notably, while both of …
"I'M Sorry, I Can't Answer That": Supreme Court Confirmations, Judicial Independence, And Positive Legal Scholarship, Lori A. Ringhand
"I'M Sorry, I Can't Answer That": Supreme Court Confirmations, Judicial Independence, And Positive Legal Scholarship, Lori A. Ringhand
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The United States Constitution grants to the Senate the duty to provide its “advice and consent” to the appointment of Supreme Court Justices. Just how senators should exercise that duty, however, is deeply contested. Much of the dispute about the Senate's role involves the appropriate scope of questions the senators should ask, and what nominees should be expected to answer, at the confirmation hearing held by the Senate Judiciary Committee. Opponents of vigorous senatorial questioning argue that such questioning infringes on the independence of the judiciary; proponents argue that the nominees' failure to answer probing questions hinders the Senate's constitutional …
Making The Law: Unpublication In The District Courts, Hillel Y. Levin
Making The Law: Unpublication In The District Courts, Hillel Y. Levin
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In recent years, one particular area of focus for legal scholars concerned about the increasing privatization and opacity of courts has been the issue of systematic unpublication of judicial opinions by the appellate courts. Judges have issued dueling opinions on the constitutionality of the practice and traded polemics on its appropriateness. Practitioners – whose voices often seem lost (or at least muted) on issues like this – are in the thick of the debate. No longer merely academic, this debate has even spawned a change in the rules of appellate procedure (one that amusingly pulled off the difficult feat of …