Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Courts (19)
- Constitutional Law (8)
- Judges (8)
- Legislation (5)
- Social and Behavioral Sciences (5)
-
- Supreme Court of the United States (5)
- Civil Procedure (4)
- Litigation (4)
- Public Affairs, Public Policy and Public Administration (4)
- Administrative Law (3)
- Arts and Humanities (3)
- Criminal Law (3)
- Law and Race (3)
- Legal Profession (3)
- Policy Design, Analysis, and Evaluation (3)
- Public Policy (3)
- American Politics (2)
- Civil Rights and Discrimination (2)
- Disability Law (2)
- Evidence (2)
- Family Law (2)
- Intellectual Property Law (2)
- Jurisdiction (2)
- Juvenile Law (2)
- Labor and Employment Law (2)
- Law and Society (2)
- Models and Methods (2)
- Political Science (2)
- Antitrust and Trade Regulation (1)
- Institution
-
- University of Pennsylvania Carey Law School (4)
- University of Tennessee College of Law (4)
- Roger Williams University (3)
- American University Washington College of Law (2)
- Boston University School of Law (2)
-
- Cleveland State University (2)
- University of Baltimore Law (2)
- University of Georgia School of Law (2)
- Case Western Reserve University School of Law (1)
- Columbia Law School (1)
- Duke Law (1)
- Florida International University College of Law (1)
- Florida State University College of Law (1)
- Fordham Law School (1)
- Louisiana State University Law Center (1)
- Macalester College (1)
- Notre Dame Law School (1)
- University of Cincinnati College of Law (1)
- University of Florida Levin College of Law (1)
- University of Richmond (1)
- University of Wollongong (1)
- University of the District of Columbia School of Law (1)
- Western Kentucky University (1)
- William & Mary Law School (1)
- Publication
-
- All Faculty Scholarship (6)
- Faculty Scholarship (5)
- Scholarly Works (4)
- Faculty Publications (3)
- Journal Articles (3)
-
- Articles in Law Reviews & Other Academic Journals (2)
- College of Law Faculty Scholarship (2)
- Life of the Law School (1993- ) (2)
- All Maxine Goodman Levin School of Urban Affairs Publications (1)
- Faculty Articles and Other Publications (1)
- Faculty of Law, Humanities and the Arts - Papers (Archive) (1)
- Law Faculty Articles and Essays (1)
- Law Faculty Publications (1)
- Law Library Newsletters/Blog (1)
- MSS Finding Aids (1)
- Political Science Honors Projects (1)
- Scholarly Publications (1)
- UF Law Faculty Publications (1)
Articles 1 - 30 of 37
Full-Text Articles in Law
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl
Faculty Publications
No abstract provided.
Law Library Blog (October 2015): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (October 2015): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach
Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach
All Faculty Scholarship
I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.
Newsroom: Judge Edward Clifton Joins Faculty, Roger Williams University School Of Law
Newsroom: Judge Edward Clifton Joins Faculty, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Stop Making Court A First Stop For Many Low Income Parents, Jane C. Murphy
Stop Making Court A First Stop For Many Low Income Parents, Jane C. Murphy
All Faculty Scholarship
In the wake of the unrest over police misconduct in cities across the country, calls for reform have focused on the criminal justice system — making police, prosecutors, and criminal courts more accountable and just. While much work needs to be done in that arena, too little attention has focused on the ways in which low income families are hurt in civil courts. Many more men, women and children from low income communities of color pass through the doors of our family courts every day than those who interact with the criminal justice system. Some come to court as a …
Newsroom: Logan On Judicial Diversity, Roger Williams University School Of Law
Newsroom: Logan On Judicial Diversity, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Reverse Nullification And Executive Discretion, Michael T. Morley
Reverse Nullification And Executive Discretion, Michael T. Morley
Scholarly Publications
The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.
Such a broad application of obstacle and field preemption is …
Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol
Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol
UF Law Faculty Publications
This essay examines Herbert Hovenkamp's influence in antitrust law and policy in the courts. This essay focuses its attention primarily with the Treatise and primarily in the area of merger law – procedural with issues of antitrust injury and substantively with merger efficiencies. The essay provides a case count citation analysis of Hovenkamp's scholarship and compares Hovenkamp to other major figures in antitrust scholarship (Bork and Posner) and to the other antitrust treatises (Kintner and Sullivan) in the courts. Our meta-level findings show that Hovenkamp is far more cited than other treatise writers or scholars who have been recognized for …
Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul
Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul
Political Science Honors Projects
The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.
Baker, Walter Arnold, 1937-2010 (Mss 539), Manuscripts & Folklife Archives
Baker, Walter Arnold, 1937-2010 (Mss 539), Manuscripts & Folklife Archives
MSS Finding Aids
Finding aid only for Manuscripts Collection 539. This small collection contains material related to legislative matters of interest to Kentucky legislator and jurist Walter A. Baker, Glasgow, Kentucky. Also includes files about several trips abroad and family material.
Resurrecting Trial By Statistics, Jay Tidmarsh
Resurrecting Trial By Statistics, Jay Tidmarsh
Journal Articles
“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …
"All Writs" In Bankruptcy And District Courts: A Story Of Differing Scope, George Kuney
"All Writs" In Bankruptcy And District Courts: A Story Of Differing Scope, George Kuney
Scholarly Works
No abstract provided.
The Future Of The Foreign Commerce Clause, Scott Sullivan
The Future Of The Foreign Commerce Clause, Scott Sullivan
Journal Articles
The Foreign Commerce Clause has been lost, subsumed by its interstate cousin, and overshadowed in foreign relations by the treaty power. Consistent with its original purpose and the implied, but unrefined view asserted by the judiciary, this Article articulates a broader and deeper Foreign Commerce power than is popularly understood. It reframes doctrinal considerations for a reinvigorated Foreign Commerce Clause--both as an independent power and in alliance with other coordinate foreign affairs powers--and demonstrates that increasing global complexity and interdependence makes broad and deep federal authority under this power crucial to effective and efficient action in matters of national concern.
Retaliation And The Reasonable Person, Sandra F. Sperino
Retaliation And The Reasonable Person, Sandra F. Sperino
Faculty Articles and Other Publications
When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.
Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …
Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman
Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman
All Faculty Scholarship
With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.
More recently governments have enacted laws permitting or directing the …
Reality’S Bite, Kerri Lynn Stone
Reality’S Bite, Kerri Lynn Stone
Faculty Publications
The realities of the workplace have been captured by years of socio-scientific, industrial organizational, and other psychological research. Human behavior and thought, interpersonal dynamics, and organizational behavior, with all of their nuances and fine points, are now better understood than they have ever been before, but unless they are used to inform and buttress the rules of law and interpretations promulgated by courts, Title VII’s ability to successfully regulate the workplace to rid it of discrimination will be threatened. This article expands upon that premise, lamenting judges, and specifically justices having eschewed available research and other insights into workplace realities, …
(Re-)Grasping The Opportunity Interest: Lehr V. Robertson And The Terminated Parent, Lashanda Taylor Adams
(Re-)Grasping The Opportunity Interest: Lehr V. Robertson And The Terminated Parent, Lashanda Taylor Adams
Journal Articles
In 1997, an Ohio court terminated Peggy Fugate’s parental rights to her sixyear-old daughter, Selina. At the time, Ms. Fugate, an incarcerated drug abuser, did not fight the order, believing her daughter would be adopted into a clean, stable home.1 However, Selina was never adopted. For the next seven years, Selina had trouble with the police and ran away from her foster home numerous times. While Selina’s life was going downhill in many respects, her mother was rehabilitating. She entered recovery, married, obtained full-time employment and was living in stable housing with enough room for her daughter. Recognizing the strides …
Court Competition For Patent Cases, Jonas Anderson
Court Competition For Patent Cases, Jonas Anderson
Articles in Law Reviews & Other Academic Journals
The traditional academic explanation for forum shopping is simple: litigants prefer to file cases in courts that offer some substantial advantage — either legal or procedural — over all other courts. But the traditional explanation fails to account for competition for litigants among courts. This Article suggests that forum shopping in patent law is driven in part by the creation of procedural and administrative distinctions among courts that are designed to attract, or in some cases to repel, patent litigants.
This Article makes two primary contributions to the literature, one theoretical and one normative. First, it theorizes that judicial competition …
Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz
Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz
All Maxine Goodman Levin School of Urban Affairs Publications
For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle—Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in suits challenging …
Filling The Federal Appellate Court Vacancies, Carl W. Tobias
Filling The Federal Appellate Court Vacancies, Carl W. Tobias
Law Faculty Publications
Multiple observers have criticized President Barack Obama’s discharge of his Article II constitutional responsibility to nominate and confirm federal judges. Senators have blamed the administration for slowly making nominations, liberals have contended that the executive appointed myriad candidates who are not sufficiently centrist, and conservatives have alleged that President Obama proffered many nominees who could become liberal judicial activists. Despite the sharp criticisms, the President has actually realized much success when nominating and confirming well qualified moderate jurists. President Obama has named more judges than Presidents George W. Bush and Bill Clinton had at this juncture in their tenure, while …
Judge Posner’S Simple Law, Mitchell N. Berman
Judge Posner’S Simple Law, Mitchell N. Berman
All Faculty Scholarship
The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.
Posner’s diagnoses and prescriptions range widely—from the Bluebook …
Processing Disability, Jasmine E. Harris
Processing Disability, Jasmine E. Harris
All Faculty Scholarship
This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability — initially rendering disability invisible, later, legitimizing particular narratives of disability synonymous with incapacity, and, in recent history, advancing full socio-economic visibility of people with disabilities. The Americans with Disabilities Act, …
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost
Articles in Law Reviews & Other Academic Journals
The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …
Leniency In Chinese Criminal Law? Everyday Justice In Henan, Benjamin L. Liebman
Leniency In Chinese Criminal Law? Everyday Justice In Henan, Benjamin L. Liebman
Faculty Scholarship
This Article examines one year of publicly available criminal judgments from a basic-level rural county court and an intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting State interests, harshly, while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree …
Applications Of Neuroscience In Criminal Law: Legal And Methodological Issues, John B. Meixner Jr.
Applications Of Neuroscience In Criminal Law: Legal And Methodological Issues, John B. Meixner Jr.
Scholarly Works
The use of neuroscience in criminal law applications is an increasingly discussed topic among legal and psychological scholars. Over the past 5 years, several prominent federal criminal cases have referenced neuroscience studies and made admissibility determinations regarding neuroscience evidence. Despite this growth, the field is exceptionally young, and no one knows for sure how significant of a contribution neuroscience will make to criminal law. This article focuses on three major subfields: (1) neuroscience-based credibility assessment, which seeks to detect lies or knowledge associated with a crime; (2) application of neuroscience to aid in assessments of brain capacity for culpability, especially …
Reconceptualizing Non-Article Iii Tribunals, Jaime Dodge
Reconceptualizing Non-Article Iii Tribunals, Jaime Dodge
Scholarly Works
The Supreme Court’s Article III doctrine is built upon an explicit assumption that Article III must accommodate non-Article III tribunals in order to allow Congress to “innovate” by creating new procedural structures to further its substantive regulatory goals. In this Article, I challenge that fundamental assumption. I argue that each of the types of non-Article III innovation and the underlying procedural goals cited by the Court can be obtained through our Article III courts. The Article then demonstrates that these are not theoretical or hypothetical solutions, but instead are existing structures already in place within Article III. Demonstrating that the …
Marbury Moments, Steven Arrigg Koh
Marbury Moments, Steven Arrigg Koh
Faculty Scholarship
Every court has its Marbury moment. To support this argument, this Article reviews seminal cases from three types of courts: U.S. federal, regional, and international. This Article concludes that Marbury moments provide novel insights about both Marbury v. Madison itself and the nature of domestic and international courts.
Litigation Isolationism, Pamela K. Bookman
Litigation Isolationism, Pamela K. Bookman
Faculty Scholarship
Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts.
This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that is, doctrines that …
Anti-Zionism In The Courts Is Not Kosher Law, Gregory L. Rose
Anti-Zionism In The Courts Is Not Kosher Law, Gregory L. Rose
Faculty of Law, Humanities and the Arts - Papers (Archive)
A German court in Wuppertal held last month that an arson attack on a synagogue causing fire damage was not anti-Semitism but political expression. Also in February, five youths who vandalised 300 Jewish graves and a Holocaust monument in Alsace, France, claimed that the action was not motivated by anti-Semitism.
In general, an attack specifically targeting Chinese would be considered anti-Chinese. Only in an exceptional case, it might not be. Why is the exceptional case becoming the rule for Jews, so that targeting Jews as a group is generally not anti-Jewish but “political”?
Legal artifice is being constructed to make …
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …