Jurisprudence Commons^™

Book Review, Brian Leiter

Journal of Legal Education

No abstract provided.

The Interdisciplinary Turn In Legal Education , Anthony D'Amato

ExpressO

The nature of law and legal practice is changing with the addition of interdisciplinary scholars to law-school faculties and interdisciplinary studies to the law curriculum. However, the accessibility of non-law disciplinarians in the rest of the university raises the question of the cost-effectiveness and opportunity costs of importing them directly into the law school. This Article criticizes the interdisciplinary turn on three grounds. First is the unlikelihood that the joint-degreed persons who join the law faculty will happen to be the ones that their colleagues will end up collaborating with. Second is the even greater unlikelihood that any given discipline …

Nomos, Conflict, And The Tragedy Of Adjudication: The Jurisprudence Of Robert Cover, Julen Etxabe

ExpressO

Robert Cover is known for having argued that in every plural society there exist, along with the State, multiple normative entities that create and maintain their own sense of normativity, that is, their own holistic modes of assessing good and bad, valid and invalid, right and wrong. Beyond that, few systematic attempts have been made to pursue this view as a comprehensive theory of law. The principal aim of this piece is to demonstrate that Cover offers a novel and viable paradigm of law, which must at least include an ontology (an understanding of the basic units and organizational structure …

Court Review: Volume 42, Issue 3-4 - Directory Of Officers And Board Of Governors, 2005-2006

Court Review: Journal of the American Judges Association

Directory of Officers and Board of Governors of American Judges Association

Court Review: Volume 42, Issue 3-4 - A Profile Of Settlement, John Barkai, Elizabeth Kent, Pamela Martin

Court Review: Journal of the American Judges Association

Ninety-eight percent of civil cases settle,1 right? Well, not exactly. Although claims of settlement rates of 90% and above are cited frequently, settlement rates really are not that high. Many commentators start with an accurate picture of low, single-digit trial rates (typically 2%-3%), but then they inappropriately assume the inverse—namely, that all the remaining cases are settled. Commentators ignore the fact that a significant proportion of cases are terminated for reasons other than trial or settlement, and their mistake goes undetected because most state judicial systems do not collect any information about settlements.

On the other hand, other people, speaking …

Court Review: Volume 42, Issue 3-4 - Judges, Law, Politics & Strategy, Frank B. Cross

Court Review: Journal of the American Judges Association

In law, we commonly presume that judges reach decisions based on legal materials, such as precedents. In political science, researchers typically presume that judges do not reach decisions based on such legal materials. They maintain that the apparent reliance on precedent to reach decisions is simply a hoax designed to provide cover for a particular outcome. These researchers traditionally argued that judges reach their personally preferred outcome in the case and then rationalize it after the fact with references to precedent, conveniently supplied them by the attorneys for their preferred side.

Much of the empirical research on judicial decision making …

Court Review: Volume 43, Issue 3-4 - Cover

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 3-4 - Complete Issue

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 3-4 - Table Of Contents

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 42, Issue 3-4 - Editor's Note

Court Review: Journal of the American Judges Association

This issue presents four viewpoints on current issues involving judicial elections, politics, and the effect of public opinion on the courts. In our lead article, Shira Goodman and Lynn Marks of Pennsylvanians for Modern Courts tell the story of Pennsylvania’s 2005 retention election for the Pennsylvania Supreme Court. With very little warning, public opposition developed to the retention of two justices: one was retained with 54% of the vote and one was thrown out of office with only 49% voting to retain him. The election was unusual because it did not relate to opinions issued by either justice. Rather, the …

Court Review: Volume 42, Issue 3-4 - Book Review: A Judge's Role In The Rule Of Law, William F. Hurst Iv

Court Review: Journal of the American Judges Association

Two recently published books, On the Rule of Law: History, Politics, Theory by Brian Z. Tamanaha, and The Rule of Law in America by Ronald A. Cass, provide an in-depth analysis into what the rule of law means today, its history, and what impact its meaning has on the current American judiciary.

Court Review: Volume 42, Issue 3-4 - Lessons From An Unusual Retention Election, Shira J. Goodman, Lynn A. Marks

Court Review: Journal of the American Judges Association

On November 8, 2005, something happened in Pennsylvania that has never happened before: an appellate judge, a supreme court justice no less, lost an uncontested retention election. Not only was the loss unprecedented, but with the exception of one retention election in 1993, appellate justices and judges in Pennsylvania routinely have won retention by margins of 70% to 30%. This year, one justice lost his retention election and another barely won with just 54% of the vote.

Retention elections have been a feature of judicial elections in Pennsylvania since the state constitution was amended in 1969. Following election to an …

Court Review: Volume 42, Issue 3-4 - Judicial Elections: Changes And Challenges, Jan Witold Baran

Court Review: Journal of the American Judges Association

Today, myriad approaches for selecting judges exist and few states—if any at all—use identical schemes. In many states, the selection methods vary depending on whether the judge is a trial or appellate judge, or an initial selection or an incumbent. As will be seen, the vast majority of state judges are elected. Recently, judicial campaigns have become increasingly controversial while traditional restraints have fallen to the wayside. This article will address the variety of election methods, the challenges that recent constitutional decisions have presented to the ABA Code of Judicial Conduct, and whether innovations, such as public financing, offer a …

Court Review: Volume 42, Issue 3-4 - Seizing The Accountability Moment: Enlisting Americans In The Fight To Keep Courts Fair, Impartial, And Independent, Bert Brandenberg

Court Review: Journal of the American Judges Association

Did the 2005 uproar over Terri Schiavo’s end-of-life case mark a peak in the recent surge of attacks on the independence of America’s courts? When the case generated threats to impeach and even murder the presiding judge, and Congress passed a bill seeking to manipulate the case, broad public disapproval helped end the political crisis.1 The President backpedaled—“I believe in an independent judiciary. I believe in checks and balances”2—and dispatched the Vice President and Attorney General to add their reassurances. Just a few months later, Supreme Court nomination hearings offered little hint of the rising tide of fury that courts …

Court Review: Volume 42, Issue 3-4 - E-Courts: The Times They Are A-Changin’, James E. Mcmillan

Court Review: Journal of the American Judges Association

The title obviously comes from Bob Dylan’s classic song from 1964. That song captured the spirit of the times and again, in a small way, captures ours as well. This year’s upcoming E-Courts Conference (www.e-courts.org) in December will highlight both the changes that computers have brought to court operations and where things are going in the future.

Court operations have been impacted over the past decade with the implementation of electronic court document filing (aka E-filing). This year the U.S. federal courts will have electronic filing available in nearly all district and bankruptcy courts. We have seen that not as …

Court Review: Volume 42, Issue 3-4 - President’S Column, Michael Cicconetti

Court Review: Journal of the American Judges Association

Living in Northeastern Ohio, we are constantly promoting this part of the state as an area virtually free of natural disasters. Oh sure, we have our lake-effect snow, which we have learned to treat as more of an inconvenience and annoyance than a danger. Hurricanes? Those are reserved for the coastal states. Tornadoes? Hello, Kansas! Northeastern Ohio hasn’t experienced one in 35 years. Droughts? We may have an occasional dry spell during the summer but we always have the Great Lakes as a plentiful water source. Mudslides? Never. Forest fires? Doesn’t happen. Earthquakes? Minor blips on the Richter Scale.

Court Review: Volume 42, Issue 3-4 - The Resource Page

Court Review: Journal of the American Judges Association

No abstract provided.

Contractarianism, Contractualism, And The Law Of Corporate Insolvency, Riz Mokal

ExpressO

What is the appropriate way of theorising about corporate bankruptcy law? That lies, argues this paper, in rejecting Pareto and Kaldor-Hicks efficiency in favour of a particular conception of transaction cost efficiency, and in rejecting the ‘contractarian’ Creditors’ Bargain Model in favour of the ‘contractualist’ Authentic Consent Model. The paper vindicates these arguments with an analysis of the automatic stay which characterises the collective liquidation regime, of the pari passu principle often said to be at the heart of this regime, and of the liability imposed in some jurisdictions on the managers of terminally distressed companies for failing to take …

The Decreasing Ontological Density Of The State In Catholic Social Doctrine, Patrick Mckinley Brennan

Working Paper Series

Over the last century-plus, Catholic social thought has gradually reduced the ontological density of the state, to the point that the state now appears to have only a tentative grasp on the natural law basis of its legitimacy. During the first part of the twentieth century, Catholic social doctrine tended to view the legitimate state as a participant in the divine rule; although draped in a sacred mantle, the state was subject to the limits imposed by the divine and natural law. In response to the totalitarian states’ transgressing of those limits at mid-century, Catholic thinkers reduced the scope and …

The Griswold Diagrams: Toward A Unified Theory Of Constitutional Rights, Stephen Kanter

Cardozo Law Review

No abstract provided.

Burkean Minimalism, Cass R. Sunstein

Michigan Law Review

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and …

Daubert And The Disappearing Jury Trial, Allan Kanner

ExpressO

Since being decided by the Supreme Court in 1993, Daubert v. Merrell Dow Pharmaceuticals has earned its place as one of the most misinterpreted and misapplied decisions in modern history. Meant to liberalize the standards for admissions of proof, the decision has had the opposite effect. The gatekeeper powers given to judges via Daubert, coupled with the internal and external incentives to prevent jury trials, has placed our entire civil justice system at risk.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Reemergence Of Restitution: Theory And Practice In The Restatement (Third) Of Restitution, Chaim Saiman

Working Paper Series

The ALI’s Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely under …

Habeas Corpus, Judicial Review, And Limits On Secrecy In Detentions At Guantanamo, Jonathan Hafetz

Cardozo Public Law, Policy & Ethics Journal

The article examines the role of secrecy in post-9/11 counterterrorism detentions, particularly at Guantanamo Bay, and the legal challenges posed by the Detainee Treatment Act (DTA) and Military Commissions Act (MCA). These acts sought to limit habeas corpus jurisdiction, potentially restoring a system of unaccountable detentions. The analysis highlights how habeas corpus serves as a critical check on executive power, ensuring judicial review of detentions and transfers, and protecting against unlawful confinement. The Supreme Court's rulings in Rasul v. Bush and Hamdan v. Rumsfeld are central to this discussion, as they affirmed habeas protections and invalidated certain detention practices.

The Slow Erosion Of The Adversary System: Article Iii Courts, Fisa, Cipa And Ethical Dilemmas, Ellen C. Yaroshefsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the increasing reliance on secret evidence in U.S. legal proceedings, particularly in post-9/11 national security and terrorism cases, facilitated by the Classified Information Procedures Act (CIPA) and the Foreign Intelligence Surveillance Act (FISA). This trend undermines the adversarial system by denying defendants access to relevant information, raising ethical concerns for defense attorneys, and potentially eroding constitutional rights. The author advocates for reforms to balance national security with civil liberties, emphasizing the need for judicial vigilance and legislative changes to address these issues.

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Vanderbilt Law Review

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it is a context-sensitive empirical question whether specific applications of the …

Panel Report: Beyond Article Iii Courts: Military Tribunals, Status Review Tribunals, And Immigration Courts, Robert M. Chesney

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security interests and procedural fairness in the use of secret evidence across non-Article III contexts, including military tribunals, Combatant Status Review Tribunals (CSRTs), and immigration courts. It examines the challenges of balancing government secrecy with individual rights, emphasizing the need for procedural safeguards to navigate this complex issue.

Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns

Dalhousie Law Journal

The traditional doctrine of testamentary undue influence developed in nineteenth century England. Its utility, however, is limited since the doctrine requires the person alleging undue influence to provide direct proof of coercion according to a high standard. In England the doctrine has remained static and there have been calls for reform. In Canada, some courts have ceased to apply the traditional doctrine so that today there is no one consistent and coherent doctrine of testamentary undue influence. This article explores two possible reforms of the doctrine both of which are evident in recent Canadian case law: a presumption of testamentary …

Assessing The Rule Of Law In Russia, Kathryn Hendley

Cardozo Journal of International and Comparative Law

The mainstream scholarly literature and the mass media agree that Russia has made little progress in moving toward the "rule of law." Their negative assessment of the value of law in Russia is buttressed by a recent series of high-profile cases in which the results were clearly manipulated by the Kremlin. This article argues that such cases are aberrations and should not be viewed as reflective of the capacity of the Russian legal system. It documents the profound institutional reforms undertaken over the past two decades. Judged on those terms, it has surely moved closer to the ideal of the …