Courts Commons^™

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

Hearings, Mark Spottswood

Faculty Working Papers

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …

Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller

Faculty Working Papers

In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) …

The Macroeconomic Court: Rhetoric And Implications Of New Deal Decision-Making, Nancy Staudt, Yilei He

Faculty Working Papers

Supreme Court scholars have long discussed and debated the dramatic shift in constitutional decision-making that took place in the late 1930s—a shift that led the Justices to presume the constitutionality of any and all commercial statutes no matter how "preposterous" they might seem. The conventional wisdom holds that the Supreme Court altered its decision-making calculus to avoid the consequences of President Roosevelt's "court-packing plan," but various other explanations have also emerged in the literature over time. In this Article, Professor Staudt and Ms. He investigate an explanation that scholars and commentators have largely ignored: the role of the economy itself. …

Methodological Advances And Empirical Legal Scholarship: A Note On The Cox And Miles' Voting Rights Act Study, Nancy Staudt, Tyler Vanderweele

Faculty Working Papers

In this Response, we use Professors Cox and Miles' recent study of judicial decision-making to explore what is at stake when legal scholars present empirical findings without fully investigating the structural relationships of their data or without explicitly stating the assumptions being made to draw causal inferences. We then introduce a new methodology that is intuitive, easy to use, and, most importantly, allows scholars systematically to assess problems of bias and confounding. This methodology—known as causal directed acyclic graphs—will help empirical researchers to identify true cause and effect relationships when they exist and, at the same time, posit statistical models …

Economic Trends And Judicial Outcomes: A Macrotheory Of The Court, Thomas Brennan, Lee Epstein, Nancy Staudt

Faculty Working Papers

In this symposium essay, 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 minor economic downturns—recessions—as attributable to the failures of elected officials, but will consider long-term and extreme economic contractions—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 …

"Controlling" Securities Fraud: Proposed Liability Standards For Controlling Persons Under The 1933 And 1934 Securities Acts, Nancy Staudt

Faculty Working Papers

This Student Note investigates the history and intent underlying the controlling person liability provisions of the 1933 and 1934 Securities Act. It notes that courts have adopted a ranges of standards for holding controlling persons liability, but whichever standard is chosen--that standard is applied to both Acts. This note argues that courts should impose unique liability standards for each statute in order to fully realize Congress' purpose in adopting the laws.

International Human Rights At The Close Of The Twentieth Century, Anthony D'Amato

Faculty Working Papers

Speculates as to why the human-rights revolution is increasingly likely to dominate our foreign-policy attentions in the decades to come. Ventures some predictions, of particular interest perhaps to international lawyers, about where the cause of international human rights is heading.

The Coerciveness Of International Law, Anthony D'Amato

Faculty Working Papers

This article shows that an important part of the deep structure of international law is its self-referential strategy of employing its own rules to protect its rules. International law tolerates a principled violation of its own rules when necessary to keep other rules from being broken. It extends a legal privilege to states to use coercion against any state that has selfishly attempted to transgress its international obligations. International law thus protects itself through the opportunistic deployment of its own rules.

The Concept Of Special Custom In International Law, Anthony D'Amato

Faculty Working Papers

General customary international law contains rules, norms, and principles that seem applicable to any state and not to a particular state or an exclusive grouping of states. For example, norms relating to the high seas, to airspace and outer space, to diplomatic immunities, to the rules of warfare, and so forth, apply equally to all states having occasion to be concerned with these areas. Similarly, the facts of a given case may suggest exclusively the application of general custom—such as cases concerning collision on the high seas between ships of different countries, cases involving general principles of international law, cases …

The Supreme Court And The Sophisticated Use Of Digs, Rafael Gely, Michael E. Solimine

Faculty Publications

In this article, we extend this literature in several ways. In part II, we provide a brief overview of the certiorari and DIG process, and explore the possible motivations for the Court to DIG a case. In Part III we describe our data, and in Part IV we discuss our results. Part V concludes the paper.

Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin

Journal Articles

In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging …

Federal Courts Not Federal Tribunals, Lumen N. Mulligan

Faculty Works

The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. - 1331 or Article III. Borrowing a phrase …

Regulatory Adjudication, Marcia L. Mccormick

All Faculty Scholarship

Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the …

Reform In California's Immigration Enforcement And Immigration Court, Nelson E. Gil

CMC Senior Theses

According to the Department of Homeland Security, Office of Immigration Statistic, California accounts for approximately 2,600,000 illegal immigrants in 2009. This number represents about 25 percent of the entire estimated illegal immigrant population in the United States, which is roughly 10.8 million. Between 2003 and 2008, the U.S. government removed 1,446,338 noncitizens from the United States. This rise in deportation is a result o the changes that have been enacted by the federal government over the years that transformed the nature of immigration enforcement. This thesis explores the California Immigration Enforcement system from the programs established to apprehend illegal aliens …

Decisional Sequencing, Peter B. Rutledge

Scholarly Works

Judicial decisionmaking consists of two sets of choices – (1) how to resolve the issues in a case and (2) how to decide the order in which those issues will be resolved. Much legal scholarship focuses on the first question; too little focuses on the second. This Article aims to fill that gap. Drawing across disciplines – philosophy, economics and political science – this Article articulates a theory of “decisional sequencing.” Decisional sequencing concerns the extent to which legal rules constrain – and do not constrain – the order in which judges and other quasi-judicial actors (like arbitrators) decide matters …

Law, Facts, And Power, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in …

Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth

Georgetown Law Faculty Publications and Other Works

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …

Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Defending The Majoritarian Court, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Resolving Cases On The Merits, Jay Tidmarsh

Journal Articles

Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.

China's Judicial System And Judicial Reform, Nicholas C. Howson

Other Publications

The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …

Tribunal Jurisdiction Over Charter Remedies: Now You See It, Now You Don't, Steve Coughlan

Articles, Book Chapters, & Popular Press

The Supreme Court's decision in R. v. Conway (reported ante p. 201) simplifies the test for deciding whether an administrative tribunal has jurisdiction to grant Charter remedies. At least in principle, it heralds a broader approach to allowing litigants to seek such remedies at the earlier stage of a proceeding, rather than waiting for a review before a court or pursuing a parallel action. The attitude behind Conway signals a greater willingness to allow administrative tribunals to grant Charter remedies. The test on the key question of whether a tribunal has jurisdiction over a particular remedy is still essentially the …

Watch Your Language: A Review Of The Use Of Stigmatizing Language By Canadian Judges, Jocelyn Downie, Michelle Black

Articles, Book Chapters, & Popular Press

Despite ongoing advances in understanding the causes and prevalence of mental health issues, stigmatizing language is still often directed at people who have mental illness. Such language is regularly used by parties, such as the media, who have great influence on public opinion and attitudes. Since the decisions from Canadian courtrooms can also have a strong impact on societal views, we asked whether judges use stigmatizing language in their decisions. To answer this question, we conducted a qualitative study by searching through modern Canadian case law using search terms that were indicative of stigmatizing language. We found that, although judges …

Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman

All Faculty Scholarship

This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex …

Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi

Faculty Scholarship

Empirical scholarship on judges, judging, and judicial institutions, a staple in political science, is becoming increasingly popular in law schools. We propose that this scholarship can be improved and enhanced by greater collaboration between empirical scholars, legal theorists, and the primary subjects of the research, the judges. We recently hosted a workshop that attempted to move away from the conventional mode of involving judges and theorists in empirical research, where they serve as commentators on empirical studies that they often see as reductionist and mis-focused. Instead, we had the judges and theorists set the discussion agenda for the empiricists by …

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether

Working Paper Series

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, …

From The Chair, Lela P. Love

Articles

No abstract provided.

Structures Of Judgment: How The Modern Supreme Court Of Canada Organizes Its Reasons, Peter Mccormick

Dalhousie Law Journal

In recent decades, the Supreme Court of Canada has developed a distinctive and unusual way of organizing its reasons for judgment; concomitantly, it has developed a comparably distinctive style for its minority reasons as well. This article describes this new decision format and the elements into which it is typically divided, and compares it with the practices of appeal courts in other common law countries. It concludes first by theorizing about the purpose and the functions of decision formats and format changes, and then by defending the current Canadian style.

Purposivism And Institutional Competence In Statutory Interpretation, Michael Herz

Articles

No abstract provided.