Judges Commons^™

Justice Lewis F. Powell, Jr. And The Counterrevolution In The Federal Securities Laws, Adam C. Pritchard

Articles

The confirmation of Lewis F. Powell, Jr., to the Supreme Court coincided with a dramatic shift in the Court's approach to securities law. This Article documents Powell's influence in changing the Court's direction in securities law. Powell's influence was the product of his extensive experience with the securities laws as a corporate lawyer, which gave him much greater familiarity with that body of law than his fellow Justices had. That experience also made him skeptical of civil liability, particularly class and derivative actions. Powell's skepticism led him to interpret the securities law in a consistently narrow fashion to reduce liability …

Analysis Of Judicial Decisions Interpreting §482, Reuven S. Avi-Yonah

Other Publications

The purpose of this chapter is to survey the judicial interpretations of transfer pricing, as developed in the cases decided under §482. The chapter is divided into three major sections: first, an overview of the general legal principles underlying the judicial interpretation of §482; second, a chronological survey of the development of the case law under §482, with particular attention to the development of the arm's length standard and the search for comparables; third, an analytical survey of the techniques used by courts to decide transfer pricing cases, with particular emphasis on the techniques developed in recent cases to deal …

Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan

Michigan Law Review

The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …

How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw Jr.

Michigan Law Review

Bismarck famously remarked: "Laws are like sausages. It's better not to see them being made." This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court's doctrine), but ignore the messy details of its production. Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing "social choice" economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness (p. 4). Viewed through the lens …

Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine

Articles

Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …

Conjunction And Aggregation, Saul Levmore

Michigan Law Review

This Article begins with the puzzle of why the law avoids the issue of conjunctive probability. Mathematically inclined observers might, for example, employ the "product rule," multiplying the probabilities associated with several events or requirements in order to assess a combined likelihood, but judges and lawyers seem otherwise inclined. Courts and statutes might be explicit about the manner in which multiple requirements should be combined, but they are not. Thus, it is often unclear whether a factfinder should assess if condition A was more likely than not to be present - and then go on to see whether condition B …

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …

Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman

Articles

The Supreme Court's decision in Bush v. Gore, shutting down the recounts of Florida's vote in the 2000 presidential election and effectively awarding the election to George W. Bush, has struck many observers, including myself, as outrageous.' Decisions of the Supreme Court should be more than mere reflections of ideological or partisan preference thinly camouflaged behind legalistic language. It would therefore be pleasant to be able to believe that they are more than that. Accordingly, Judge Richard Posner's analysis,2 in which he defends the result reached by the Court-though not the path by which it got there-is particularly welcome. Though …

Terry Firma: Background Democracy And Constitutional Foundations, Frank I. Michelman

Michigan Law Review

Ages ago, I had the excellent luck to fall into a collaboration with Terrance Sandalow to produce a casebook now long forgotten. There could have been no more bracing or beneficial learning experience for a fledgling legal scholar (meaning me). What brought us together indeed was luck from my standpoint, but it was enterprise, too - the brokerage of an alert West Publishing Company editor picking up on a casual remark of mine as he made one of his regular sweeps through Harvard Law School. A novice law professor, I mentioned to him how much I admired a new essay …

Judges, Juries, And Patent Cases - An Emprical Peek Inside The Black Box, Kimberly A. Moore

Michigan Law Review

The frequency with which juries participate in patent litigation has skyrocketed recently. At the same time, there is a popular perception that the increasing complexity of technology being patented (especially in the electronic, computer software, biological and chemical fields) has made patent trials extremely difficult for lay juries to understand. These developments have sparked extensive scholarly debate and increasing skepticism regarding the role of juries in patent cases. Juries have participated in some aspects of patent litigation since the enactment of the first patent statute in 1790, which provided for "such damages as shall be assessed by a jury." The …

Eliminating Consideration Of Parental Wealth In Post-Divorce Child Custody Disputes, Carolyn J. Frantz

Michigan Law Review

There may be no story as old as that of the child of privilege, spoiled in the things of the world, who finally achieves happiness through coming to appreciate the simple charms of working-class life. But equal in strength are the real life stories of American parents: their drive for the accumulation of personal wealth, so frequently justified as "for the children." The place of wealth in the good life of a child is deeply controversial, and it should surprise no one to see it played out in child custody law. Under the statutes of almost all states, custody disputes …

Foreword: The Question Of Process, J. Harvie Wilkinson Iii

Michigan Law Review

Many in the legal profession have abandoned the great questions of legal process. This is too bad. How a decision is reached can be as important as what the decision is. In an increasingly diverse country with many competing visions of the good, it is critical for law to aspire to agreement on process - a task both more achievable than agreement on substance and more suited to our profession than waving the banners of ideological truth. By process, I mean the institutional routes by which we in America reach our most crucial decisions. In other words, process is our …

Choosing Justices: A Political Appointments Process And The Wages Of Judicial Supremacy, John C. Yoo

Michigan Law Review

William H. Rehnquist is not going to be Chief Justice forever - much to the chagrin of Republicans, no doubt. In the last century, Supreme Court Justices have retired, on average, at the age of seventy-one after approximately fourteen years on the bench. By the end of the term of the President we elect this November, Chief Justice Rehnquist will have served on the Supreme Court for thirty-two years and reached the age of eighty. The law of averages suggests that Chief Justice Rehnquist is likely to retire in the next presidential term. In addition to replacing Chief Justice Rehnquist, …

Losing Faith: America Without Judicial Review?, Erwin Chemerinsky

Michigan Law Review

In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change. Similarly, Michael Klarman explores whether the Supreme Court's desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate. In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He …

Judicial Education And Training In Asia And The Pacific, J. Clifford Wallace

Michigan Journal of International Law

This article first explains the chart in Appendix II, which summarizes important parts of the survey responses. Then, some general observations are made based on the results of the survey illustrating the significance of the compiled data. Finally, some recommendations are made, based upon the author's and others' experience, about the future direction of judicial education and training programs as it relates to establishing or reforming such programs in the Asia/Pacific region and beyond.

Making Biomedical Policy Through Constitutional Adjudication:The Example Of Physician-Assisted Suicide, Carl E. Scheider

Book Chapters

Throughout most of American history no one would have supposed biomedical policy could or should be made through constitutional adjudication. No one would have thought that the Constitution spoke to biomedical issues, that those issues were questions of federal policy, or that judges were competent to handle them. Today, however, the resurgence of substantive due process has swollen the scope of the Fourteenth Amendment, the distinction between federal and state spheres is tattered, and few statutes escape judicial vetting. Furthermore, Abraham Lincoln's wish that the Constitution should "become the political religion of the nation" has been granted. "We now reverently …

Festschrift: Lee Loevinger, Layman E. Allen

Articles

Lee Loevinger is well-known and recognized for his outstanding achievements as a Minnesota Supreme Court Justice, as Assistant United States Attorney General for Antitrust, and as a superb practicing attorney. Perhaps less appreciated are his extraordinary contributions to the intersection of law and science generally and more particularly to the nurturing of the application of computer technology to law in its infancy.

Political Questions, Judicial Questions, And The Problem Of Washington V. Glucksberg, Carl E. Schneider

Other Publications

Over a century and a half ago, Alexis de Tocqueville famously said, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." Physician-assisted suicide superbly illustrates Tocqueville's acute observation. For a number of years, assisted suicide was the prototype of a (nonpartisan) political question. Interest groups brought it to public attention. Public discussion of it flourished. Legislatures debated it. Citizens in several states decided in referenda whether to make it legal. Almost suddenly, however, this classic political process was transformed into a judicial one by the startling and strongly stated …

Cardozo The [Small R] Realist, Richard D. Friedman

Reviews

In Part I of this Review, I will discuss aspects of Cardozo's life and character. In Part II, I will discuss Cardozo's jurisprudential theory as revealed in his lectures and essays. In Part IlI, I will suggest how we gain a better perspective on his judicial opinions by understanding not only that theory but also the man and his life.

Decisionmaking About General Damages: A Comparison Of Jurors, Judges, And Lawyers, Roselle L. Wissler, Allen J. Hart, Michael J. Saks

Michigan Law Review

Placing important decisions in the hands of the civil jury - made up of ordinary citizens untrained in the law - has long been criticized. For example, Erwin Griswold, law school dean and Solicitor General of the United States, asked, "Why should anyone think that 12 persons brought in from the street, selected in various ways, for their lack of general ability, should have any special capacity for deciding controversies between persons?" And Jerome Frank, law professor, aggressive legal realist, and judge, argued that juries are uncertain, capricious, and unpredictable, ignorant and prejudiced, poor factfinders, gullible, and incapable of following …

What Will Diversity On The Bench Mean For Justice?, Theresa M. Beiner

Michigan Journal of Gender & Law

This article is aimed at the general question: whether having a woman judge would make a difference in sexual harassment cases. This article is aimed at this general question, the response to which has been elusive: Does the race, gender, or other background characteristics of a judge make a difference in the outcome of cases? The effects of diversity on the bench are just becoming measurable. Many legal scholars have assumed diversity will make a difference. While this conclusion may seem commonsensical, it is important to be able to support such assertions with actual data. The supposition has been that …

Taking Decisions Seriously, Richard D. Friedman

Reviews

The New Deal era is one of the great turning points of American constitutional history. The receptivity of the Supreme Court to regulation by state and federal governments increased dra- matically during that period. The constitutionalism that prevailed before Charles Evans Hughes became Chief Justice in 1930 was similar in most respects to that of the beginning of the twen- tieth century. The constitutionalism that prevailed by the time Hughes’ successor Harlan Fiske Stone died in 1946 is far more related to that of the end of the century. How this transformation occurred is a crucial and enduring issue in …

Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki

Articles

In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …

In Memoriam: Lewis F. Powell, Jr., Christina B. Whitman

Articles

At the time of his resignation, Justice Lewis F. Powell, Jr. was justly praised as a moderate, flexible jurist - open-minded, suspicious of ideology, most often found at the center of a divided Supreme Court. Yet Justice Powell was a man of deeply conservative instincts. Suspicious of invitations to expand the scope of individual constitutional rights, he was a participant and even a leader in the Court's reassertion of a federalism that emphasized deference to states and in its reinvigoration of restrictions on access to federal courts. His jurisprudence was all of a piece. Justice Powell's reluctance to expand federal …

An Outsider's View Of Common Law Evidence, Roger C. Park

Michigan Law Review

same line by a Newton. There have been improvements since Bentham's jeremiad. But Anglo-American evidence law is still puzzling. It rejects the common-sense principle of free proof in favor of a grotesque jumble of technicalities. It has the breathtaking aspiration of regulating inference by rule, causing it to exalt the foresight of remote rulemakers over the wisdom of on-the-spot adjudicators. It departs from tried-and-true practices of rational inquiry, as when it prohibits courts from using categories of evidence that are freely used both in everyday life and in the highest affairs of state. Sometimes it seems to fear dim light …

Lessons From The Fall, Andrea D. Lyon

Michigan Law Review

This book is both better and worse than one would expect. It is the story of Sol Wachtler, former Chief Judge of New York State Court of Appeals. Wachtler had an extramarital affair with a woman for whom he had been appointed executor, and after the breakup he stalked her with letters, phone calls, and threats. Eventually he was convicted of extortion and sent to prison. His fall from power is what fascinates us, of course, but that is not what is valuable about this book. It answers an outsider's questions about the prison experience, seems to reflect accurately the …

Textualism, The Unknown Ideal?, William N. Eskridge Jr.

Michigan Law Review

In May 1997, the New York Knickerbockers basketball team was poised to reach the finals of its division in the National Basketball Association (NBA). The Knicks led the rival Miami Heat by three games to two and needed one more victory to win the best-of seven semifinal playoff series. Game six would be in New York; with their star center, Patrick Ewing, playing well, victory seemed assured for the Knicks. A fracas during game five changed the odds. During a fight under the basket between Knicks and Heat players, Ewing left the bench and paced in the middle of the …

United States V. O'Hagan: Agency Law And Justice Powell's Legacy For The Law Of Insider Trading, Adam C. Pritchard

Articles

The law of insider trading is judicially created; no statutory provision explicitly prohibits trading on the basis of material, non-public information. The Supreme Court's insider trading jurisprudence was forged, in large part, by Justice Lewis F. Powell, Jr. His opinions for the Court in United States v. Chiarella and SEC v. Dirks were, until recently, the Supreme Court's only pronouncements on the law of insider trading. Those decisions established the elements of the classical theory of insider trading under § 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act"). Under this theory, corporate insiders and their tippees who …

The Reluctant Justice: Lewis F. Powell Jr. Personifies The 'Quality Of Attentiveness', Christina B. Whitman

Book Chapters

Lewis F. Powell, Jr., came to the U.S. Supreme Court in 1972 reluctantly and at an age when many professionals are anticipating retirement rather than a career change.

But the Court suited him. He grew to love the work, although he often found it agonizing, and he thrived on the role he played in the history of the Constitution.

By the time he retired in 1987, after more than 15 years on the Court, Powell had come to represent a kind of ideal justice -- moderate, flexible, careful. In a sense, his entire life had been preparing him for this …

The Reluctant Justice: Lewis F. Powell Jr. Personifies The 'Quality Of Attentiveness', Christina B. Whitman

Articles

Lewis F. Powell Jr. came to the U.S. Supreme Court in 1972 reluctantly and at an age when many professionals are anticipating retirement rather than a career change. But the Court suited him. He grew to love the work, although he often found it agonizing, and he thrived on the role he played in the history of the Constitution.