Courts Commons^™

Neglected Justices: Discounting For History, G. Edward White

Vanderbilt Law Review

The category of "neglected Justices" presupposes meaningful baselines for evaluating judicial reputations. A Justice cannot be deemed "neglected" except against the backdrop of some purported consensus about that Justice's reputation and the reputations of other Justices. Moreover, when the category of "neglected Justices" encompasses the performance of Justices who served in different time periods, it also presupposes that evaluative baselines for Justices can retain their integrity in the face of historical change and historical contingency.

This Article argues that when one discounts for history in the process of evaluating judicial reputations, the effects of history are sufficiently powerful to throw …

Judicial And Arbitral Proceedings And The Outer Limits Of The Continental Shelf, John E. Noyes

Vanderbilt Journal of Transnational Law

This Article explores when international third-party dispute settlement forums may hear cases concerning the outer limits of a continental shelf beyond 200 nautical miles from baselines. The 1982 Convention on the Law of the Sea articulated determinate rules for establishing those limits and created an institution--the Commission on the Limits of the Continental Shelf--to make recommendations concerning them. Limits set by coastal states "on the basis of" such recommendations "shall be final and binding." Yet the Law of the Sea Convention's third-party dispute settlement system may also apply to outer limits questions concerning the Arctic Ocean and other oceans.

International …

The Myth Of The Generalist Judge, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Conventional judicial wisdom assumes and indeed celebrates the ideal of the generalist judge, but do judges really believe in it? This Article empirically tests this question by examining opinion assignments in the federal courts of appeals from 1995-2005. It reveals that opinion specialization is a regular part of circuit court practice, and that a significant number of judges specialize in specific subject areas. The Article then assesses the desirability of opinion specialization. Far from being a mere loophole, opinion specialization turns out to be an important development in judicial practice that promises to increase judicial expertise without incurring many of …

"The Threes": Re-Imagining Supreme Court Decisionmaking, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

In this Essay--the first in a series of essays designed to reimagine the Supreme Court--we argue that Congress should authorize the Court to adopt, in whole or part, panel decision making... With respect to the prospect of different Court outcomes, we demonstrate empirically in this Essay that the vast majority of cases decided during the late twentieth and early twenty-first centuries--including "Grutter", "Roe", and "Bush v. Gore" --would have come out the same way if the Court had decided them in panels rather than as a full Court.

Review Of Crafting The Overseer's Image By William E. Wiethoff, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

Wherever slaves worked on plantations in the antebellum South, overseers were hired to supervise and discipline them. Crops, soil types, and topographies varied greatly across the region, but professional slave drivers were fixtures of the landscape from the colonial era to the Civil War. Their ubiquity pleased few people, slave or free. Accounts of their sadism, sexual violence, and general coarseness and stupidity are not limited to slave narratives and abolitionist tracts; gripes and horror stories fill the public and private writings of plantation owners, too. Harriet Beecher Stowe was hardly taking literary license when she made slave owner Simon …

From Judge To Justice: Social Background Theory And The Supreme Court, Tracey E. George

Vanderbilt Law School Faculty Publications

The Roberts Court Justices already have revealed many differences from one another, but they also share a (possibly) significant commonality: Presidents promoted all of them to the U.S. Supreme Court from the U.S. Courts of Appeals. This means, of course, that they initially learned how to be judges while serving on a circuit court. How might the Justices' common route to the Court affect their actions on it? Social background theory hypothesizes that prior experience influences subsequent behavior such as voting, opinion writing, and coalition formation. This Article empirically analyzes promotion to the Supreme Court and examines the implications of …

The Court, The Constitution, And The History Of Ideas, Scott D. Gerber

Vanderbilt Law Review

Several of the nation's most influential constitutional law scholars have been arguing for the better part of a decade that judicial review should be sharply limited, or eliminated altogether. The list includes such prominent thinkers as Professor Mark V. Tushnet of Harvard Law School, Professor Cass R. Sunstein of the University of Chicago Law School, and Dean Larry D. Kramer of Stanford Law School. In place of the doctrine made famous by Chief Justice John Marshall in Marbury v. Madison, these leading voices of the legal academy call for "popular constitutionalism": a constitutional law that is defined outside of the …

Towards Global Convenience, Fairness, And Judicial Economy, J. S. Hill

Vanderbilt Journal of Transnational Law

The Supreme Court held in Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., that federal district courts can dismiss cases under forum non conveniens before determining jurisdiction. The facts of Sinochem did not allow the Court to determine whether a court may conditionally dismiss under "forum non conveniens" before determining jurisdiction, but this Note argues that district courts should be able to do so. The issue of conditional dismissal before jurisdiction arises only where subject matter or personal jurisdiction is difficult to determine, "forum non conveniens" factors weigh heavily in favor of dismissal, and the district court intends to …

A Near Term Retrospective On The Al-Dujail Trial & The Death Of Saddam Hussein, Michael A. Newton

Vanderbilt Law School Faculty Publications

Saddam Hussein al-Tikriti died at the hands of Iraqi officials at dawn on December 30, 2006, following a tumultuous fourteen month trial3 for crimes committed against the citizens of a relatively obscure Iraqi village known as al-Dujail.4 Maintaining his façade of disdain when the verdict and sentence were announced on November 5, 2006, Saddam entered the courtroom with an arrogant strut and refused to stand until the guards made him do so to hear the judge’s opinion.5 When Saddam interrupted the reading of the verdict, Judge Ra’ouf Rasheed Abdel Rahman turned down the volume of his microphone and spoke over …

Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Chief judges wield power. Among other things, they control judicial assignments, circulate petitions to their colleagues, and manage internal requests and disputes. When exercising this power, do chiefs seek to serve as impartial court administrators or do they attempt to manufacture case outcomes that reflect their political beliefs? Because chiefs exercise their power almost entirely outside public view, no one knows. No one sees the chief judge change the composition of a panel before it is announced or delay consideration of a petition for en banc review or favor the requests of some colleagues while ignoring those of others. Chiefs …

Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon

Vanderbilt Law Review

Grutter v. Bollinger is familiar to American lawyers, academics, and law students as the Supreme Court decision allowing the consideration of race in law school admissions.1 Grutter's procedural history is nearly as noteworthy as its substantive holding. The University of Michigan Law School, after losing in federal district court, appealed to the U.S. Court of Appeals for the Sixth Circuit. Three Democratic appointees were assigned to the panel: Judges Karen Nelson Moore and Martha Craig Daughtrey, who had heard an earlier interlocutory appeal, and Chief Judge Boyce Martin, who replaced the designated district judge from the earlier panel. The white …

Judicial Interference: Redefining The Role Of The Judiciary Within The Context Of U.S. And E.U. Merger Clearance Coordination, Yasmine B. Carson

Vanderbilt Journal of Transnational Law

In December 2003, Sony and Bertelsmann AG (BMG)sought approval from the Federal Trade Commission and European Commission to effectuate a joint venture between the two companies. Remarkably, almost two years after both antitrust authorities had cleared the Sony-BMG joint venture, the Court of First Instance annulled the European Commission's decision to approve the transaction. This groundbreaking decision by the Court of First Instance has the potential to undermine coordination efforts between antitrust authorities in the United States and the European Union, as well as to frustrate the predictability and efficiency that businesses need in merger regulation. Using the regulatory review …

Creating The Right Mentality: Dealing With The Problem Of Juror Delinquency In The New South Korean Lay Participation System, Eric Seo

Vanderbilt Journal of Transnational Law

The Judiciary Reform Committee of South Korea has planned to implement a five year pilot program that will allow public participation in trials. This will be the first time in the nation's judicial history that lay participation will be used. The format of the pilot program will be a mixture of the U.S.-style jury system and the German lay assessor system, with the program being more akin to the U.S. system. As South Korea has never had a lay participation system, it has a unique opportunity to create a system that will avoid problems associated with lay participation. This Note …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia Jr.

Vanderbilt Law Review

In the debate over how federal courts should interpret federal statutes, "faithful agent" theories stand pitted against "dynamic" theories of statutory interpretation. The following questions lie at the heart of the debate: Is the proper role of federal courts to strive to implement the commands of the legislature-in other words, to act as Congress's faithful agents? Or, is the proper role of federal courts to act as partners with Congress in the forward-looking making of federal law-in other words, to interpret statutes dynamically? Proponents of faithful agent theories include both "textualists" and "purposivists." Textualists have argued that federal courts best …

U.S. Military Courts And The War In Iraq, Michael J. Frank

Vanderbilt Journal of Transnational Law

Throughout its history, the United States has frequently entrusted to military courts the task of prosecuting insurgents and terrorists during instances of military occupation.

Instead of carrying on this tradition in Iraq, the United States created the Central Criminal Court of Iraq (CCCI) and entrusted a band of Iraqi judges with this task. Infected with corruption, nationalism, tribal loyalties, and anti-U.S. animus, this court has repeatedly thwarted the United States by acquitting or only lightly punishing Iraqi terrorists. Thus, the terrorists have learned that they face an excellent chance of acquittal in the CCCI, or if per chance they are …

Who's Afraid Of The Big Bad Wolf? The International Criminal Court As A Weapon Of Asymmetric Warfare, W. C. Austin

Vanderbilt Journal of Transnational Law

The United States is engaged in a war on terror against enemies who wage "asymmetric war" through terrorism, media manipulation, and "law-fare"---exploiting judicial processes to achieve political or military objectives.

This Article explores whether the fledgling International Criminal Court (ICC) could eventually be exploited by these groups as a tool of asymmetric "law-fare." It briefly traces the history of the ICC and recounts why the United States opposes the Court. Examining the methods of asymmetric war, the Authors then explore whether the ICC could be exploited by future asymmetric warriors.

The Authors describe three asymmetric methods that could be used …

How Should A Court Deal With A Primary Question That The Legislature Seeks To Avoid?, Gidon Sapir

Vanderbilt Journal of Transnational Law

Legislative avoidance of principled decisions on substantive questions by transferring the decision-making task to the executive branch, is a frequent scenario. The legislature does this by way of either express or hidden delegation, i.e., by using ambiguous wording that on its face only requires interpretation but which in fact requires a substantive decision on the matter at stake. The Israeli legislature resorted to the hidden delegation tactic to avoid the adoption of a substantive decision in the dispute over the question of who is a Jew--a dispute that has divided Israeli society and World Jewry (especially its U.S. component) since …

Courts Of Limited Jurisdiction In A Post-Transition Cuba, Matias F. Travieso-Diaz, Armando A. Musa

Vanderbilt Journal of Transnational Law

Cuba's eventual transition to a free-market society will likely be accompanied by a flood of litigation in areas such as property rights, privatization of state-owned enterprises, and human rights violation claims. Courts of limited jurisdiction should be established to hear these specialized matters and alleviate the burden on regular courts. As the transition unfolds, there will also be a need to create specialized tribunals to handle disputes in areas such as taxation, bankrtupcy, and intellectual property. The creation of the various courts of limited jurisdiction will have to be supported by creative strategies for retraining existing judges, training new ones, …

Celebrities In The Courtroom: Legal Responses, Psychological Theory And Empirical Research, Jared Chamberlain, Monica K. Miller, Alayna Jehle

Vanderbilt Journal of Entertainment & Technology Law

This article sets out to answer a basic question about celebrities in the legal system: does celebrity status influence the outcome of a trial? Part I focuses on the legal aspects surrounding the treatment of celebrities in the courtroom. For example, there is some evidence that celebrities receive preferential treatment in court, while there is other evidence that celebrities are held to higher standards than non-celebrities. Part II examines psychological theories suggesting that status and authority influence jurors' decision-making processes. In Part III, a review of relevant past psychological research provides an empirical basis to make conclusions about celebrity influence …

Jury Sentencing In Non-Capital Cases: Comparing Severity And Variance With Judicial Sentences In Two States, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law School Faculty Publications

Recently, commentators have championed sentencing byjury as more democratic and better suited to current theories of punishment than sentencing by judge alone. Yet discussions of noncapitaljury sentencing either fail to address empirical questions or rely on outdated and incomplete studies. This study is the first to present basic information on the comparative severity and variance of jury and judge sentencing as practiced in the 21st century. We use archival sentencing data from two of the six states that authorize jury sentencing-Arkansas and Virginia. In both states, voluntary sentencing guidelines govern judicial sentencing after bench trial or guilty plea, but juries …

When Process Affects Punishment: Differences In Sentences After Guilty Plea, Bench Trial, And Jury Trial In Five Guidelines States, Nancy J. King, David A. Soule, Sara Steen, Robert R. Weidner

Vanderbilt Law School Faculty Publications

The research reported in this Essay examines process discounts-differences in sentences imposed for the same offense, depending upon whether the conviction was by jury trial, bench trial, or guilty plea-in five states that use judicial sentencing guidelines. Few guidelines systems expressly recognize "plea agreement" as an acceptable basis for departure, and none authorizes judges to vary sentences based upon whether or not the defendant waived his right to a jury trial and opted for a bench trial. Nevertheless, we predicted that because of the cost savings resulting from waivers, judges and prosecutors in any sentencing system would ensure that guilty …

Improving The Appellate Process Worldwide Through Maximizing Judicial Resources, Honorable J. Clifford Wallace

Vanderbilt Journal of Transnational Law

As the number of cases filed each year has surged, U.S. federal appellate courts have evolved in order to fulfill their core functions of deciding appeals and setting guiding precedent. Many of the challenges created by overwhelming caseloads are also being tackled in foreign judicial systems. In this Article, Judge Wallace offers the approach of the United States Court of Appeals for the Ninth Circuit as a possible model of reform, although he also points out that each judiciary will need to tailor reform efforts to its particular circumstances. In Part II, Judge Wallace details several of the case management …

Interim Measures In International Human Rights: Evolution And Harmonization, Jo M. Pasqualucci

Vanderbilt Journal of Transnational Law

In this Article, the Author undertakes a comprehensive study of interim measures ordered in human rights cases before six international enforcement bodies--the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, the United Nations Human Rights Committee, the United Nations Committee against Torture, and the Inter-American Commission on Human Rights. An order of interim measures may require that the State take positive action, such as providing protection for human rights activists or journalists, or it may call upon the State to refrain from taking action, such as not extraditing a person or delaying …

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I, Rachel Vorspan

Vanderbilt Journal of Transnational Law

In this-Article Professor Vorspan examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on detention, deportation, conscription, and confiscation of property, the Author revises the conventional depiction of the English judiciary during World War I as passive and peripheral. She argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal freedom. Second, they …

Enlisting The U.S. Courts In A New Front, Debra M. Strauss

Vanderbilt Journal of Transnational Law

The time has come to extend the national approach that has been used successfully to dismantle the infrastructure of hate groups to the international realm against terrorist groups. The foundation of this approach is a private right to a cause of action apart from any military or diplomatic efforts by the government. In this Article, Professor Strauss analyzes case precedents under several federal statutes--the Antiterrorism Act of 1991, the Antiterrorism and Effective Death Penalty Act of 1996, the Torture Victim Protection Act, the Alien Tort Claim Act--as well as state common-law tort claims, including aiding and abetting liability. Professor Strauss …

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Chris Wright Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).

Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punishment, Nancy J. King

Vanderbilt Law School Faculty Publications

Prosecutors control statutory ranges by selecting charges. In addition, prosecutors decide whether to use or forego special sentencing statutes that carry mandatory minimum penalties higher than the maximum Guidelines sentence that would otherwise apply to the defendant's conduct, as well as statutes that authorize a sentence lower than the minimum Guidelines sentence that would otherwise apply ("safety valve," "substantial assistance," and Rule 35 reductions). By creating these additional provisions and then removing any effective judicial oversight of their application, Congress has expanded the opportunities for prosecutors to decide when to opt out of the national Guidelines and when to abide …

School Funding Litigation: Who's Winning The War?, John Dayton, Anne Dupre

Vanderbilt Law Review

Much is being made this year in education law circles and elsewhere about the fiftieth anniversary of Brown v. Board of Education.' The Brown decision has certainly left an indelible mark on schools and other institutions in the United States. But last year the thirtieth anniversary of another major Supreme Court opinion passed largely without comment, despite the fact that it may be the most significant decision regarding public schools since Brown. In 1973, the U.S. Supreme Court, in San Antonio Independent School District v. Rodriguez, concluded that education was not a fundamental right and that disparities in school funding …

Appellate Courts, Historical Facts, And The Civil-Criminal Distinction, Chad M. Oldfather

Vanderbilt Law Review

Among the pieties of our legal system is the notion that appellate courts do not engage in factual evaluation. Murky though the distinction between "fact" and "law" may be,' there is general agreement that somewhere along the fact-law spectrum lies a point beyond which appellate courts ought not venture. Past it exist questions of "historical fact," the "who, when, what, and where" series of questions that we have deemed only juries or trial judges to be capable of answering.

Just as well accepted is the reasoning behind this juridical line in the sand. Simply put, we believe that appellate courts …