Law Commons^™

Judges As Rulemakers, Larry A. Alexander, Emily Sherwin

University of San Diego Public Law and Legal Theory Research Paper Series

This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or …

Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …

Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis

University of San Diego Public Law and Legal Theory Research Paper Series

In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

ExpressO

No abstract provided.

The Role Of Purposivism In The Delegation Of Rulemaking Authority To The Courts, Michael Rosensaft

ExpressO

The courts are often used by Congress as a “political lightning rod,” when Congress cannot decide how to resolve an issue. Congress relies on administrative agencies for their expertise, and it also makes sense for Congress to delegate some rulemaking authority to the courts, relying on a court’s expertise in developing caselaw in an incremental basis. However, this authority should not be lightly implied. A court can tell that Congress has delegated rulemaking authority to it when the purpose of the statute is clear and the text is broadly worded. It thus makes sense in these cases that purposivism should …

Writing Checks Or Righting Wrongs: Election Funding And The Tort Decisions Of The Ohio Supreme Court, James T. O'Reilly

Cleveland State Law Review

This paper will try to address the court's present and future course in tort law, with particular focus on products liability, malpractice, and employer tort liability. These are the most intriguing segments of modern tort law in Ohio. The paper concludes that stare decisis and the precedential accretion of the common law no longer seem to matter to the Ohio Supreme Court. Instead, the cacophony of a fractured court has imperiled predictability and imperiled the court's national reputation. Instead, the topic of a prospective justice's view of the tort system is unfortunately an early and frequent conversation in recruitment, selection, …

The Futile Quest For A System Of Judicial “Merit” Selection, Michael R. Dimino

Michael R Dimino