Jurisprudence Commons^™

American Justice At A Crossroads: Remarks Of Kathleen Bryan, Kathleen Bryan

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Opening Remarks, Kenneth Starr

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales

Pepperdine Dispute Resolution Law Journal

This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …

Law, Higher Law, And Human Making, William S. Brewbaker Iii

Pepperdine Law Review

This paper is a preliminary investigation of what Christian theology might teach us about the nature of human creative activity and its relationship to judging and lawmaking. Rather than attempt to survey and synthesize multiple theological accounts of human making, it focuses on just one - Dorothy Sayers' The Mind of the Maker. The foundational analogy that drives Sayers' account of human creativity is the relation between God's creative activity and that of human beings made in his image. Sayers argues that human creative activity has a Trinitarian structure, which she identifies as Idea, Energy and Power. These three elements …

Random Chance Or Loaded Dice: The Politics Of Judicial Designation, Todd C. Peppers, Katherine Vigilante, Christopher Zorn

Scholarly Articles

Here, we take advantage of a unique characteristic of the procedures of the U.S. courts of appeals—the discretion held by chief judges to designate district court judges to three-judge appellate panels— to examine empirically the importance of oversight and judicial hierarchy on judges' behavior in those courts. Specifically, we examine the extent to which decisions about the policy preferences of designated judges vary systematically with the ideological tenor of the chief judge himself, the court as a whole, and the U.S. Supreme Court. More simply put, we ask: are district court judges selected to sit on appeals court panels simply …

Veterans Court: Towards The Implementation Of A Collaborative Justice Model In San Luis Obispo County, Daniel Smee

Continuing Education (CAPSTONE)

Veterans’ treatment courts represent an emerging trend across the country of collaborative justice designed to deal with criminal justice issues stemming from problems linked to military service. This approach places the veteran in VA (Veterans Affairs) treatment programs as a diversion from incarceration. There are few such courts in California (nine) largely in non-rural counties. This study investigated two rural counties, Tulare and Santa Barbara with Veterans courts to develop a model for such a court in San Luis Obispo County. Early recidivism data at the one-year point for Tulare County showed a zero percent rate of criminal behavior (12 …

Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Mckinley Brennan

Working Paper Series

This is my Introduction to Legal Affinities: Explorations in the Legal Form of Thought (forthcoming 2012) (co-edited with H. Jefferson Powell and Jack Sammons), a volume of essays dedicated to exploring the work of Joseph Vining. The Introduction introduces Vining’s phenomenology of law and surveys the themes and topics developed by the volume’s eight authors: Joseph Vining, Judge John T. Noonan, Jr., Rev. John McCausland, H. Jefferson Powell, Jack Sammons, Steve Smith, James Boyd White, and Patrick Brennan.

No Justice In Utah's Justice Courts: Constitutional Issues, Systemic Problems, And The Failure To Protect Defendants In Utah's Infamous Local Courts, Samuel P. Newton, Teresa L. Welch, Neal G. Hamilton

Utah OnLaw: The Utah Law Review Online Supplement

Utah’s justice of the peace courts look and feel exactly like district courts, yet they lack the benefits and protections afforded to citizens charged with more serious offenses. Utah should strongly consider abolishing its justice courts in order to integrate them into a statewide system of justice that would “keep the peace” for all of the state’s citizens. If Utah does not abolish its justice courts, then it should implement the procedures and reforms outlined in this Article. Utah continues to have an opportunity to provide meaningful, and constitutional, justice administered at its local level. Once these reforms were implemented, …

Recusal, Government Ethics, And Superannuated Constitutional Theory, Keith Swisher

Maryland Law Review

No abstract provided.

New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Eleventh Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center: Are Federal Judges Competent? Dilettantes In An Age Of Economic Expertise, The Honorable Jed Rakoff

Fordham Journal of Corporate & Financial Law

The title of my little talk here tonight is “Are

Federal Judges Competent?” This naturally raises the question of whether I am competent to answer that question. I put this question to myself, and, after careful consideration of both sides of the argument, concluded that I am competent to determine whether I am competent. As H. L. Mencken once said, “A judge is a law student who grades his own exams.”

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Publications

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.

Decarceration Courts: Possibilities And Perils Of A Shifting Criminal Law, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.

With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including …

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …

The Meaning Of Mcintyre, Adam N. Steinman

Faculty Scholarship

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as …

Humphrey’S Executor Squared: Free Enterprise Fund V. Public Company Accounting Oversight Board And Its Implications For Administrative Law Judges, Robert S. Garrison Jr.

Student Works

No abstract provided.

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Scholarly Works

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf

Cornell Law Faculty Publications

In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …

Samantar And Executive Power, Peter B. Rutledge

Scholarly Works

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

Pliva V. Mensing And Its Implications, Brian Wolfman, Dena Feldman

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court ruling in PLIVA Inc. v. Mensing will immunize generic drug manufacturers facing failure-to-warn claims from state-law liability, and may also have implications for preemption jurisprudence more generally, says attorney Brian Wolfman and co-author Dena Feldman in this BNA Insight. The authors analyze the ruling, and offer their views on the questions that PLIVA raises about the ongoing vitality of the presumption against preemption, the standard for determining ‘‘impossibility’’ preemption, and the propriety of deference to an agency’s views on preemption.

Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove, Adam N. Steinman

Faculty Scholarship

The intersection of federalism and class-action litigation has been an area of significant controversy in recent years. With the 2005 Class Action Fairness Act placing more high-stakes class actions into federal court, an especially crucial question is the extent to which the Erie doctrine and the Rules Enabling Act (REA) require federal courts to follow state class-action law. The Supreme Court’s decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co. begins to confront this issue, but many unanswered questions remain. Under several lines of argument that were neither made nor considered in Shady Grove, the Erie doctrine and the …

The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin

Michigan Law Review

The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are …

Acontextual Judicial Review, Louis Michael Seidman

Cardozo Law Review

No abstract provided.

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011), Victor E. Schwartz, Christopher E. Appel

UIC Law Review

No abstract provided.

A Capitalist Joker: The Strange Origins, Disturbing Past, And Uncertain Future Of Corporate Personhood In American Law, 44 J. Marshall L. Rev. 643 (2011), David H. Gans, Douglas T. Kendall

UIC Law Review

No abstract provided.

The Political Economy Of Jus Cogens, Paul B. Stephan

Vanderbilt Journal of Transnational Law

This Article examines the basis of an asserted jus cogens exception to sovereign immunity. It demonstrates that the vision of jus cogens one embraces depends on background assumptions about the present and future of the international system. A robust conception of jus cogens assumes: (1) that independent judges and tribunals, informed by the views of non-state actors, can identify core international obligations and manage their tradeoffs with other values pursued by the international legal system, and (2) that the actions of independent judges and tribunals, informed by non-state actors, will influence state behavior. Doubts about the abilities of judges and …

The Anti-Empathic Turn, Robin West

Georgetown Law Faculty Publications and Other Works

Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.

Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges …

Law, Politics, And The Erosion Of Legitimacy In The Delaware Courts, Kent Greenfield

NYLS Law Review

No abstract provided.

American Academy Of Religion V. Napolitano, Margaret Laufman

NYLS Law Review

No abstract provided.