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Supreme Court Of The United States, October Term 2014 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

A Case Study Of Patent Litigation Transparency, Bernard Chao, Derigan Silver

Sturm College of Law: Faculty Scholarship

By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially …

Tribute To Randall Shepard, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The Jury Wants To Take The Podium -- But Even With The Authority To Do So, Can It? An Interdisciplinary Examination Of Jurors' Questioning Of Witnesses At Trial, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Leadership And Management Training In The North Carolina Judicial System: An Examination Of Identified Need, James E. Hardin Jr.

Duke Law Master of Judicial Studies Theses

The purpose of this paper is to ask whether North Carolina public service lawyers and judges believe that their judicial districts perform with maximum efficiency or whether there could be functional improvement with leadership and management training for system leaders, and with the perceived need of such training, as articulated by these professionals, what a general training model might look like. A brief examination of the institutionally provided leadership and management training offered to system leaders shows sparse resources are expended to develop leaders and train them so that they have the skills to direct individual organizations and change the …

Nlrb V. Noel Canning Presents A Nonjusticiable Political Question, Victor Williams

Cardozo Law Review de•novo

This Article argues that the Noel Canning challenge to the President’s use of his recess appointment authority presents a nonjusticiable political question. The work draws from arguments developed for this author’s Supreme Court amicus briefs in Noel Canning, other amicus briefs lodged during the past year for related actions in the Third, Fourth, Seventh, Ninth, and D.C. Circuits, and a variety of this author’s commentary on federal appointments.

The Danger Of Nonrandom Case Assignment: How The Southern District Of New York's "Related Cases" Rule Shaped Stop-And-Frisk Rulings, Katherine A. Macfarlane

Michigan Journal of Race and Law

The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen …

What Reversals And Close Cases Reveal About Claim Construction: The Sequel, 13 J. Marshall Rev. Intell. Prop. L. 525 (2014), Thomas Krause, Heather Auyang

UIC Review of Intellectual Property Law

This article updates and elaborates on last year’s What Close Cases and Reversals Reveal About Claim Construction at the Federal Circuit. Like the previous article, this article provides empirical insight into claim construction at the Federal Circuit, by approaching the question with two unique and distinct subsets of data: (1) “reversals” of all district court claim construction decisions since Phillips v. AWH, and (2) “close cases,” or post-Markman claim construction cases that had dissents in which a currently-active judge participated. The past year’s reversals data once again confirms that district courts persistently favor narrow claim interpretations in cases in which …

The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment's "rule requiring notice."

Congress authorized these "sneak and peek" warrants in the USA Patriot Act of 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5601 in 2012, suggesting that "sneak and peek" searches are becoming alarmingly common. In fact, it is not at all clear whether true "sneak …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Faculty Publications By Year

No abstract provided.

Doctrinal Conversation: Justice Kagan's Supreme Court Opinions, Laura K. Ray

Indiana Law Journal

In her first two terms on the Supreme Court, Justice Elena Kagan has crafted a distinctive judicial voice that speaks to her readers in a remarkably conversational tone. She employs a variety of rhetorical devices: invocations to “remember” or “pretend”; informal and even colloquial diction; a diverse assortment of similes and metaphors; and parenthetical interjections that guide the reader’s response. These strategies engage the reader in much the same way that Kagan as law professor may well have worked to engage her students, and in the context of judicial opinions they serve several purposes. They make Kagan’s opinions accessible to …

Justice Scalia's Truthiness And The Virtues Of Judicial Center, Allen K. Rostron

Indiana Law Journal

Antonin Scalia is by far the Supreme Court’s greatest wit and most colorful personality. When I choose audio clips from the Court’s oral arguments to play in my constitutional law classes, I would like to offer a balanced sample of views from the left and right sides of the Court. But I cannot resist loading up on Scalia sound bites, because in almost every major case he serves up the sharpest questioning and most imaginative hypotheticals. His judicial opinions are also remarkably passionate and frank. If he thinks a lawyer’s or even a fellow Justice’s argument is nonsense, he will …

Considering Patricia Millett For The D.C. Circuit, Carl W. Tobias

Law Faculty Publications

On June 4, Obama nominated three individuals: Patricia Millett, who has argued 32 Supreme Court appeals, Cornelia Pillard, who has won landmark High Court victories, and Robert Wilkins, who had served as a D.C. District Court judge for three years. The court’s allegedly smaller caseloads prompted Republicans to halt yes or no votes for all the nominees. But because well-qualified, moderate nominees warrant thorough consideration and final ballots, their Senate review deserves analysis, which this paper conducts by emphasizing Millett. It first surveys the nominee’s process and then shows how her evaluation concluded.

Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.

Foreword: The Confident Court, Jennifer Mason Mcaward

Journal Articles

Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court. This piece discusses …

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Law Faculty Publications

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

Filling The District Of Arizona Vacancies, Carl W. Tobias

Law Faculty Publications

The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence. Indeed, the emergency designation has meant that some criminal proceedings were delayed in the Arizona District. The vacancy crisis places additional pressure on sitting judges, particularly the eight senior judges …

The Courts And National Security: The Ordeal Of The State Secrets Privilege, David Rudenstine

Articles

The state secrets privilege, originally established in United States v. Reynolds, has evolved into a powerful tool for the Executive to shield actions from judicial scrutiny, undermining the rule of law and constitutional checks and balances. This expansion, driven by judicial deference and circuit court interpretations, now prioritizes national security over accountability, threatening core legal principles. The article argues for reform to balance national security concerns with judicial oversight and individual rights.

Magna Carta In Supreme Court Jurisprudence, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

Editor's Note: This article is adapted from "Magna Carta in Supreme Court Jurisprudence," which appears as Chapter 5 in Magna Carta and the Rule of Law, Daniel Magraw et al., eds., published by the American Bar Association in 2014.

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of …

Judging Justice On Appeal, Marin K. Levy

Faculty Scholarship

No abstract provided.

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Neil Vidmar, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

The Effectiveness Of International Adjudicators, Laurence R. Helfer

Faculty Scholarship

This chapter, in the Oxford Handbook of International Adjudication, provides an overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third approach, embeddedness …

Give Ghosts A Chance: Why Federal Courts Should Cease Sanctioning Every Legal Ghostwriter, Blake G. Tanase

Georgia Law Review

For decades, federal judges have punished attorneys who draft documents for pro se litigants. Meanwhile, many states and the American Bar Association have come to accept this practice as beneficial for low-income litigants and the legal system at large. The Second Circuit recently broke from the federal tradition and found that an attorney's so-called "ghostwriting"of litigation documents for pro se litigants was not sanctionable conduct. That court noted the changes taking place at the state level and rejected other federal courts' justifications for sanctioning legal ghostwriting, but did not elaborate as to why legal ghostwriting should be considered acceptable attorney …

The Growth Of Incarceration In The United States: Exploring Causes And Consequences, Jeremy Travis, Bruce Western, F. Stevens Redburn

Publications and Research

After decades of stability from the 1920s to the early 1970s, the rate of incarceration in the United States more than quadrupled in the past four decades. The Committee on the Causes and Consequences of High Rates of Incarceration in the United States was established under the auspices of the National Research Council, supported by the National Institute of Justice and the John D. and Catherine T. MacArthur Foundation, to review evidence on the causes and consequences of these high incarceration rates and the implications of this evidence for public policy.

Our work encompassed research on, and analyses of, the …

At What Is The Supreme Court Comparatively Advantaged?, R. George Wright

West Virginia Law Review

No abstract provided.

Sotomayor's Empathy Moves The Court A Step Closer To Equitable Adjudication, Veronica Couzo

Notre Dame Law Review

On August 6, 2009, then-Judge, now-Justice, Sonia Sotomayor was confirmed as the nation’s first Latina Supreme Court Justice. While many Latinos embraced the idea of having “Sonia from the Bronx” on the bench, others were fearful that her jurisprudence, combined with her background, would result in “reverse racism.” These fears, while arguably unfounded at the time, have been completely dispelled. Just as Justice Thurgood Marshall transformed the adjudications of the Supreme Court through experiential discourse, so too, to a lesser extent, has Justice Sotomayor. In both oral arguments and written opinions, Justice Sonia Sotomayor has demonstrated educative leadership—enlightening her colleagues …

Issue 1: Annual Survey 2013 Table Of Contents

University of Richmond Law Review

No abstract provided.