Jurisprudence Commons^™

Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

No abstract provided.

Reluctant Judicial Factfinding: When Minimalism And Judicial Modesty Go Too Far, Scott A. Moss

Seattle University Law Review

Whatever the merits of minimalism in constitutional adjudication, this Essay argues that in another aspect of federal adjudication--what this Essay terms “reluctant judicial factfinding”--we already have too much minimalism. In certain areas of law, courts are quite reluctant to engage in close scrutiny of critically important facts, instead falling back on policies that avoid such factfinding. Parts II, III, and IV discuss each of these three areas of reluctant judicial factfinding. Then, Part V offers some thoughts as to possible causes of this reluctance to undertake factual inquiries that statutes, rules, and Supreme Court precedent instruct district and appellate courts …

Blakely, Apprendi, Booker, Begay, And Santos: Judicial Minimalism And The U.S. Supreme Court's Ill-Conceived Attempts At A Rational Jurisprudence, E.J. Yera

St. Thomas Law Review

The approach the Court has taken in the cases discussed herein has regrettably resulted in a waste of judicial, prosecutorial and defense resources at a time when the United States has more individuals in prison than any other industrialized nation in the world. More importantly, these decisions have left the law in a state of deliberate confusion and have harmed the individual defendants, many of whom are minorities whose rights are already fragile. The Court's unfinished decisions have also created a state of uncertainty that has been equally damaging to the victims of crime and to the integrity of the …

Asymmetric World Jurisprudence, Caprice L. Roberts

Seattle University Law Review

This article argues that the Supreme Court should reconsider its prudential justiciability doctrines and their underlying assumptions. As a global theory, this Article offers a judicial dynamism model. It then articulates the relevance of the political question doctrine and the need to view the doctrine as prudential rather than constitutional. First, I discuss the Supreme Court's increased use of judicial minimalism and the political question doctrine to avoid important cases and reduce its docket. Second, I describe my model, in which the court takes a dynamic approach to such issues, dependent upon the political climate, to maintain its appropriate stature …

Butchering Statutes: The Postville Raid And The Misinterpretation Of Federal Criminal Law, Peter R. Moyers

Seattle University Law Review

This article argues that a federal district court misinterpreted several statutes after an immigration raid in Postville, Iowa. In Part II, I begin with an account of Agriprocessors' prior legal troubles, which explains how it became such a politically attractive target. Next, I describe how the investigation of Agriprocessors led to a raid seeking to execute nearly 700 criminal arrest warrants. In Part III, I describe the causes of the accelerated criminal process that resulted in nearly 300 guilty pleas and sentencings in the span of twelve days. In Part IV, I argue that the accelerated process was premised upon …

Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck

Seattle University Law Review

This Essay suggests that many of the same reasons why Saucier proved so controversial--and perhaps even unworkable--in qualified immunity cases are less salient in the context of post-conviction habeas corpus, where the value of reaching potentially unnecessary questions of constitutional law far outweighs the cost. Put another way, my thesis is that, even though the Saucier sequence is no longer mandatory in qualified immunity jurisprudence, such a rigid methodological order of battle would be of great utility in the context of post-conviction habeas corpus--and in the adjudication of “new” rules of criminal law more generally. In that context, this Essay …

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

Toward A Unified Theory Of Retroactivity, Steven W. Allen

NYLS Law Review

No abstract provided.

United States V. Leveto, Jennifer Steward

NYLS Law Review

No abstract provided.

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

State Regulation Of Arbitration Proceedings: Judicial Review Of Arbitration Awards By State Courts, Stephen K. Huber

Cardozo Journal of Conflict Resolution

The thesis of this Article can be stated simply and concisely: States possess the power to adopt standards for the conduct of arbitration proceedings and review of arbitration awards that are significantly different from federal law standards. The major objective of this Article is to explore the most important possibilities for reform of arbitration law and practice at the state level. State law standards will be of increasing importance in the reformation of arbitration practice. This Article focuses on the standards of review of arbitration awards employed by state courts, because the power to vacate an arbitration award is the …

A Limited Defense Of (At Least Some Of) The Umpire Analogy, Michael P. Allen

Seattle University Law Review

This Essay provides at least a limited defense of some parts of the umpire analogy and ultimately suggests that this analogy may tell us something important about the more general role of courts in the United States. This Essay proceeds in four parts. Part II explores in more depth what those making the umpire analogy appear to mean. At its heart, the analogy principally has been used to address the substantive decision making of judges. This Part will explain that there is more to the analogy than such a narrow decisional focus suggests. Part III builds on Part II. It …

A Review Of “How Judges Think” By Richard A Posner, Chad Flanders

All Faculty Scholarship

This is a short review of How Judges Think by Richard Posner.

Guarding The Guardians: Judges' Rights And Virginia's Judicial Inquiry And Review Commission, Jeffrey D. Mcmahan Jr.

University of Richmond Law Review

No abstract provided.

Social Reality And Philosophical Ideals In Transitional Justice, Jamie Rowen

Cardozo Public Law, Policy & Ethics Journal

The article argues that transitional justice mechanisms in post-conflict societies, such as Bosnia, often fail to establish legitimate authority because they neglect the crucial role of community building. It emphasizes that community is a prerequisite for legal authority and highlights the dialectical relationship between law and community, where each can shape the other. The case of Bosnia illustrates how the International Criminal Tribunal for the former Yugoslavia (ICTY) and the War Crimes Chamber (WCC) in Sarajevo have struggled to gain legitimacy due to their focus on procedural values over community engagement. The article advocates for a reoriented approach to transitional …

Book Review Of The Nine: Inside The Secret World Of The Supreme Court, Eric J. Segall

Journal of Legal Education

No abstract provided.

Advocacy Through Briefs In The U.S. Court Of Appeals., Susan B. Haire, Laura P. Moyer

Faculty and Staff Scholarship

The focus of this paper is to evaluate the role of advocates in the U.S. Court of Appeals for the Seventh Circuit by examining the characterization of issues offered in appellate briefs against the issues addressed in the court's decisions. Specifically, in an environment in which attorneys are expected to frame the issues on appeal and judges are expected to respond to those issues, what accounts for judges addressing some issues while suppressing others? By explicitly focusing on how the substantive content of an opinion is shaped, we depart from other, earlier scholarship on the advantages of "repeat player" litigants …

The Virtue Of Judicial Statesmanship, Neil S. Siegel

Faculty Scholarship

Some of America's most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if under appreciated, dimension of judicial role.

I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself over the long run and with respect to …

Law Clerk Influence On Supreme Court Decision Making: An Empirical Assessment, Todd C. Peppers, Christopher Zorn

Scholarly Articles

Here, we undertake the first effort at assessing the existence and extent of law clerk influence in the U.S. Supreme Court. Drawing upon original survey data on the political ideology of 532 former law clerks, we evaluate the extent to which both the Justice's personal policy preferences and those of his or her law clerks exert an independent influence on the Justice's votes. While our results are preliminary, they nonetheless support the contention that--over and above "selection effects" due to Justices choosing like-minded clerks--clerks' ideological predilections exert an additional, and not insubstantial, influence on the Justices' decisions on the merits. …

A New (And Better) Interpretation Of Holmes's Prediction Theory Of Law, Anthony D'Amato

Faculty Working Papers

Holmes's famous 1897 theory that law is a prediction of what courts will do in fact slowly changed the way law schools taught law until, by the mid-1920s legal realism took over the curriculum. The legal realists argued that judges decide cases on all kinds of objective and subjective reasons including precedents. If law schools wanted to train future lawyers to be effective, they should be exposed to collateral subjects that might influence judges: law and society, law and literature, and so forth. But the standard interpretation has been a huge mistake. It treats law as analogous to weather forecasting: …

Nontestimonial Declarations Against Penal Interest: Eschewing The Corroboration Requirement For Inculpatory Statements, 41 J. Marshall L. Rev. 969 (2008), Michael Duffy

UIC Law Review

No abstract provided.

The Illinois Criminal Code Of 2009: Providing Clarity In The Law, 41 J. Marshall L. Rev. 815 (2008), Governor James R. Thompson, Justice Gino Divito, Peter G. Baroni, Kathy Saltmarsh, Daniel Mayerfeld

UIC Law Review

No abstract provided.

Friction By Design: The Necessary Contest Of State Judicial Power And Legislative Policymaking, Michael L. Buenger

University of Richmond Law Review

No abstract provided.

Judicial Decisionmaking, Paul V. Niemeyer

Georgia Law Review

Judge Niemeyer observes that judicial decisionmaking is a layered mental process in which numerous legitimate factors contribute to an arrangement of priorities. The priority of factors, which is based on the psychical makeup of each judge, determines the popular characterization of judges as liberal, conservative, pragmatic, thoughtful, or balanced. Nonetheless, decision making is not unconstrained,as it is guided by the good faith of each judge to continue the rule of law with well-reasoned and just opinions. If accomplished, legal disputes are accordingly healed, ultimately producing the desired harmony in the community.

Climate Change In The Supreme Court, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In Massachusetts v. Environmental Protection Agency, the Supreme Court confronted the issue of climate change for the first time. The Court held that the Clean Air Act gives the Environmental Protection Agency the authority to regulate greenhouse gases and that the agency may not decline to exercise this authority based either on factors not present in the statute or inconclusive gestures toward uncertainty in the science of climate change. I had the privilege of serving as the lead author of the winning briefs in this case. This Article provides an insider's perspective on the choices that went into bringing and …

Jung V. Skadden, Arps, Slate, Meagher & Flom, Zachary Kerner

NYLS Law Review

No abstract provided.

Sandisk Corp. V. Stmicroelectronics, Inc., Patrick R. Colsher

NYLS Law Review

No abstract provided.

United States V. Grier, Lyndsay V. Ruotolo

NYLS Law Review

No abstract provided.

"Purely The Creature Of The Inventive Genius Of The Court": State Ex Rel. Whiteside And The Creation And Evolution Of The Montana Supreme Court's Unique And Controversial Writ Of Supervisory Control, Larry Howell

Montana Law Review

Montana's Writ of Supervisory Control

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 …