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Full-Text Articles in Law

Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum Sep 2019

Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum

Neal E. Devins

No abstract provided.


The Vanishing Common Law Judge, Neal Devins, David Klein Sep 2019

The Vanishing Common Law Judge, Neal Devins, David Klein

Neal E. Devins

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in …


The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel Sep 2019

The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel

Neal E. Devins

No abstract provided.


Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins Sep 2019

Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins

Neal E. Devins

This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive …


The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove Sep 2019

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Tara L. Grove

No abstract provided.


The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove Sep 2019

The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove

Tara L. Grove

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” …


The Power Of "So-Called Judges", Tara Leigh Grove Sep 2019

The Power Of "So-Called Judges", Tara Leigh Grove

Tara L. Grove

No abstract provided.


Statutory Interpretation In Econotopia, Nathan B. Oman Sep 2019

Statutory Interpretation In Econotopia, Nathan B. Oman

Nathan B. Oman

Much of the debate in the recent revival of interest in statutory interpretation centers on whether or not courts should use legislative history in construing statutes. The consensus in favor of this practice has come under sharp attack from public choice critics who argue that traditional models of legislative intent are positively and normatively incoherent. This paper argues that in actual practice, courts look at a fairly narrow subset of legislative history. By thinking about the power to write that legislative history as a property right and legislatures as markets, it is possible to use Coase's Theorem and the concept …


Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese Sep 2019

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Alan J. Meese

No abstract provided.


English Justices And Roman Jurists: The Civilian Learning Behind England's First Case Law, Thomas J. Mcsweeney Sep 2019

English Justices And Roman Jurists: The Civilian Learning Behind England's First Case Law, Thomas J. Mcsweeney

Thomas J. McSweeney

Article looks at a historical problem—the first use of case law by English royal justices in the thirteenth century—and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, …


How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins Sep 2019

How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins

Neal E. Devins

No abstract provided.


Expressing Community Values Through Family Law Adjudication, Vivian E. Hamilton Sep 2019

Expressing Community Values Through Family Law Adjudication, Vivian E. Hamilton

Vivian E. Hamilton

No abstract provided.


Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael S. Green Sep 2019

Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael S. Green

Michael S. Green

In this review essay, Professor Michael Steven Green argues that Dworkin's reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his "semantic sting" argument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in Justice in Robes, his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting argument in no way undermines Dworkin's other arguments against Hart.


Dicta, Schmicta: Theory Versus Practice In Lower Court Decision Making, David Klein, Neal Devins Sep 2019

Dicta, Schmicta: Theory Versus Practice In Lower Court Decision Making, David Klein, Neal Devins

Neal E. Devins

The distinction between dictum and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dictum. Specifically, federal courts of appeals meaningfully invoke the distinction in about 1 in 4000 cases; federal district courts in about 1 in 2000 cases; and state courts in about 1 in 4000 cases. In this Essay, we report these findings, describe our coding system, and offer a preliminary assessment …


Congressional Procedure And Statutory Interpretation, Larry Evans, Jarrell Wright, Neal Devins Sep 2019

Congressional Procedure And Statutory Interpretation, Larry Evans, Jarrell Wright, Neal Devins

Neal E. Devins

No abstract provided.


Congress, The Supreme Court, And Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy By Placing Limits On Federal Court Jurisdiction, Neal Devins Sep 2019

Congress, The Supreme Court, And Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy By Placing Limits On Federal Court Jurisdiction, Neal Devins

Neal E. Devins

No abstract provided.


When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl Sep 2019

When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


When Is Finality . . . Final? Rehearing And Resurrection In The Supreme Court, Aaron-Andrew P. Bruhl Sep 2019

When Is Finality . . . Final? Rehearing And Resurrection In The Supreme Court, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl Sep 2019

Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl Sep 2019

Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl Sep 2019

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl Sep 2019

Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of cases resolving conflicts, …


How Should Elected Judges Interpret Statutes?, Aaron-Andrew P. Bruhl Sep 2019

How Should Elected Judges Interpret Statutes?, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


Deferring To Agency Amicus Briefs That Present New Guidance, Aaron-Andrew P. Bruhl Sep 2019

Deferring To Agency Amicus Briefs That Present New Guidance, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


Abstention Doctrine, Aaron-Andrew P. Bruhl Sep 2019

Abstention Doctrine, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


At&T V. Concepcion And Adherence To Minority Views, Aaron-Andrew P. Bruhl Sep 2019

At&T V. Concepcion And Adherence To Minority Views, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


Judicial Fact-Finding In An Age Of Rapid Change: Creative Reforms From Abroad, Allison Orr Larsen Sep 2019

Judicial Fact-Finding In An Age Of Rapid Change: Creative Reforms From Abroad, Allison Orr Larsen

Allison Orr Larsen

No abstract provided.


Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl Sep 2019

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.


The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove Jun 2019

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Faculty Publications

No abstract provided.


The Haves Of Procedure, Ion Meyn Apr 2019

The Haves Of Procedure, Ion Meyn

William & Mary Law Review

In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.

The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the …