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Full-Text Articles in Law
The Limits Of Advocacy, Amanda Frost
The Limits Of Advocacy, Amanda Frost
Duke Law Journal
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called "issue creation"-that is, raising legal claims and arguments that the parties have overlooked or ignored-on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins and Mapp v. Ohio were decided on grounds never raised …
Salmon, Sage-Brush, And Safaris: Alaska’S Territorial Judicial System And The Adventures Of The Floating Court, 1901-1915, Michael Schwaiger
Salmon, Sage-Brush, And Safaris: Alaska’S Territorial Judicial System And The Adventures Of The Floating Court, 1901-1915, Michael Schwaiger
Alaska Law Review
No abstract provided.
Pitfalls Of Empirical Studies That Attempt To Understand The Factors Affecting Appellate Decisionmaking, Harry T. Edwards, Michael A. Livermore
Pitfalls Of Empirical Studies That Attempt To Understand The Factors Affecting Appellate Decisionmaking, Harry T. Edwards, Michael A. Livermore
Duke Law Journal
No abstract provided.
Economic Trends And Judicial Outcomes: A Macrotheory Of The Court, Thomas Brennan, Lee Epstein, Nancy Staudt
Economic Trends And Judicial Outcomes: A Macrotheory Of The Court, Thomas Brennan, Lee Epstein, Nancy Staudt
Duke Law Journal
We investigate the effect of economic conditions on the voting behavior of U.S. Supreme Court Justices. We theorize that Justices are akin to voters in political elections; specifically, we posit that the Justices will view short-term and relatively nit. nor economic downturns-recessions-as attributable to the failures of elected officials, but will consider long-term and extreme economic con tractions-depressions-as the result of exogenous shocks largely beyond the control of the government. Accordingly, we predict two patterns of behavior in economic-related cases that come before the Court: (1) in typical times, when the economy cycles through both recessionary and prosperous periods, the …
On Doctors And Judges, Barak Richman
Policy Coordination: The Solicitor General As Amicus Curiae In The First Two Years Of The Roberts Court, Ryan Juliano
Policy Coordination: The Solicitor General As Amicus Curiae In The First Two Years Of The Roberts Court, Ryan Juliano
Cornell Journal of Law and Public Policy
No abstract provided.
The “Hidden Judiciary”: An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
The “Hidden Judiciary”: An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Duke Law Journal
Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.
Are Appointed Judges Strategic Too?, Joanna M. Shepherd
Are Appointed Judges Strategic Too?, Joanna M. Shepherd
Duke Law Journal
The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually …
Probing The Effects Of Judicial Specialization, Lawrence Baum
Probing The Effects Of Judicial Specialization, Lawrence Baum
Duke Law Journal
No abstract provided.
A Response To Professors George And Guthrie, Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Michael Boudin
A Response To Professors George And Guthrie, Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Michael Boudin
Duke Law Journal
No abstract provided.
No Warrant For Radical Change: A Response To Professors George And Guthrie, Erwin Chemerinsky
No Warrant For Radical Change: A Response To Professors George And Guthrie, Erwin Chemerinsky
Duke Law Journal
No abstract provided.
Measuring Judges And Justice, Jeffrey M. Chemerinsky, Jonathan L. Williams
Measuring Judges And Justice, Jeffrey M. Chemerinsky, Jonathan L. Williams
Duke Law Journal
No abstract provided.
Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Tracey E. George, Chris Guthrie
Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Tracey E. George, Chris Guthrie
Duke Law Journal
We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decisionmaking, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decisionmaking capacity but also improve the Court's composition, competence, and functioning.
A Response To Professor Ramseyer, Predicting Court Outcomes Through Political Preferences, Michael Boudin
A Response To Professor Ramseyer, Predicting Court Outcomes Through Political Preferences, Michael Boudin
Duke Law Journal
No abstract provided.
Autocrat Of The Armchair, David F. Levi
Are Empiricists Asking The Right Questions About Judicial Decisionmaking?, Jack Knight
Are Empiricists Asking The Right Questions About Judicial Decisionmaking?, Jack Knight
Duke Law Journal
No abstract provided.
A Response To Professor Knight, Are Empiricists Asking The Right Questions About Judicial Decisionmaking?, H. Jefferson Powell
A Response To Professor Knight, Are Empiricists Asking The Right Questions About Judicial Decisionmaking?, H. Jefferson Powell
Duke Law Journal
No abstract provided.
Does The Supreme Court Follow The Economic Returns? A Response To A Macrotheory Of The Court, Ernest A. Young, Erin C. Blondel
Does The Supreme Court Follow The Economic Returns? A Response To A Macrotheory Of The Court, Ernest A. Young, Erin C. Blondel
Duke Law Journal
No abstract provided.
Predicting Court Outcomes Through Political Preferences: The Japanese Supreme Court And The Chaos Of 1993, J. Mark Ramseyer
Predicting Court Outcomes Through Political Preferences: The Japanese Supreme Court And The Chaos Of 1993, J. Mark Ramseyer
Duke Law Journal
Empiricists routinely explain politically sensitive decisions of the U.S. federal courts through the party of the executive or legislature appointing the judge. That they can do so reflects the fundamental independence of the courts. After all, appointment politics will predict judicial outcomes only when judges are independent of sitting politicians. Because Japanese Supreme Court justices enjoy an independence similar to that of U.S. federal judges, I use judicial outcomes to ask whether Japanese premiers from different parties have appointed justices with different political preferences. Although the Liberal Democratic Party (LDP) governed Japan for most of the postwar period, it temporarily …
Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall
Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall
Duke Law Journal
No abstract provided.
Will Quants Rule The (Legal) World?, Edward K. Cheng
Will Quants Rule The (Legal) World?, Edward K. Cheng
Michigan Law Review
The quants are coming! And they are here to stay-so argues Professor Ian Ayres' in his new book, Super Crunchers, which details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. To be …
Do Judges Think? Comments On Several Papers Presented At The Duke Law Journal’S Conference On Measuring Judges And Justice, Robert Henry
Do Judges Think? Comments On Several Papers Presented At The Duke Law Journal’S Conference On Measuring Judges And Justice, Robert Henry
Duke Law Journal
No abstract provided.
The Louisiana Supreme Court Defended: A Rebuttal Of The Louisiana Supreme Court In Question: An Empirical And Statistical Study Of The Effects Of Campaign Money On The Judicial Function, Kevin R. Tully, E. Phelps Gay
The Louisiana Supreme Court Defended: A Rebuttal Of The Louisiana Supreme Court In Question: An Empirical And Statistical Study Of The Effects Of Campaign Money On The Judicial Function, Kevin R. Tully, E. Phelps Gay
Louisiana Law Review
No abstract provided.
On The Authority Of The Two-Member Nlrb: Statutory Interpretation Approaches And Judicial Choices, Ronald Turner
On The Authority Of The Two-Member Nlrb: Statutory Interpretation Approaches And Judicial Choices, Ronald Turner
Hofstra Labor & Employment Law Journal
Is the National Labor Relations Board statutorily empowered by and under Section 3(b) of the National Labor Relations Act to issue decisions and orders when the membership of this five-member agency falls to two active members? This important question, now before the United States Supreme Court, has been considered by several federal courts of appeals in recent rulings addressing challenges to the two-member Board’s adjudicatory power and decision making authority. This essay focuses on the interpretive theories adopted, methodologies employed, and adjudicative choices made by the courts of appeals grappling with the Section 3(b) quorum issue, and argues that the …
Money, Politics, And Impartial Justice, Joanna M. Shepherd
Money, Politics, And Impartial Justice, Joanna M. Shepherd
Duke Law Journal
A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States' judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, …
An Attorney-Client Privilege For Embattled Tax Practitioners: A Legislative Response To Uncertain Legal Counsel, William H. Volz, Theresa Ellis
An Attorney-Client Privilege For Embattled Tax Practitioners: A Legislative Response To Uncertain Legal Counsel, William H. Volz, Theresa Ellis
Hofstra Law Review
No abstract provided.
Giving Public Opinion The Process That Is Due: What The Supreme Court Can Learn From Its Eighth Amendment Jurisprudence, Rebecca Wilhelm
Giving Public Opinion The Process That Is Due: What The Supreme Court Can Learn From Its Eighth Amendment Jurisprudence, Rebecca Wilhelm
Hofstra Law Review
No abstract provided.
Introduction: Access To The Courts In The Roberts Era, Jonathan L. Entin
Introduction: Access To The Courts In The Roberts Era, Jonathan L. Entin
Case Western Reserve Law Review
No abstract provided.
The Roberts Court And Access To Justice, Gene R. Nichol
The Roberts Court And Access To Justice, Gene R. Nichol
Case Western Reserve Law Review
No abstract provided.
A Judicial Philosophy: People-Oriented Justice, Larry V. Starcher
A Judicial Philosophy: People-Oriented Justice, Larry V. Starcher
West Virginia Law Review
No abstract provided.