Law and Politics Commons^™

Becoming A Doctrine, Allison Orr Larsen

Faculty Publications

On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …

Faux Advocacy In Amicus Practice, James G. Dwyer

Faculty Publications

Amicus brief filing has reached “avalanche” volume. Supreme Court Justices and lower court judges look to these briefs particularly for non-case-specific factual information––“legislative facts”—relevant to a case. This Article calls attention to a recurrent yet unrecognized problem with amicus filings offering up legislative facts in the many cases centrally involving the most vulnerable members of society—namely, non-autonomous persons, including both adults incapacitated by mental illness, intellectual disability, or other condition, and children. Some amici present themselves as advocates for such persons but use the amicus platform to serve other constituencies and causes, making false or misleading factual presentations about the …

Weaponizing En Banc, Neal Devins, Allison Orr Larsen

Faculty Publications

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …

Three Questions About "Stand Your Ground" Laws, Cynthia V. Ward

Faculty Publications

No abstract provided.

'"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng

Faculty Publications

This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze …

Measuring Party Polarization In Congress: Lessons From Congressional Participation In Amicus Curiae, Neal Devins

Faculty Publications

First, I will detail the prevalence of party polarization and how party polarization has limited congressional interest in its institutional prerogatives vis-à-vis the executive. Second, I will discuss my research findings governing congressional amicus briefs. I will consider patterns in bipartisan filings over time (comparing the less polarized 1974–1985 Supreme Court terms with the more polarized 2002–2013 terms). I will also consider the types of issues lawmakers and their institutional counsel have pursued in their filings. This investigation will reveal a decline in briefs in institutional cases and an upswing in briefs on politically salient issues that divide the parties …

"Stand Your Ground" And Self Defense, Cynthia Ward

Faculty Publications

No abstract provided.

The Senate: Out Of Order?, Aaron-Andrew P. Bruhl

Faculty Publications

Due to the routine use of the filibuster and related devices, today’s Senate operates as a supermajoritarian body. This Symposium Article considers whether this supermajoritarian aspect of the Senate renders it dysfunctional and, if so, what can be done about it. I contend that the Senate is indeed broken. Its current supermajoritarian features have pernicious effects. Further, and contrary to the claims of many of the Senate’s defenders, this aspect of the Senate is not part of the original design. I go on to explain why the Senate’s procedures, despite their deficiencies, have nonetheless proven resistant to reform. The impediment …

Immature Citizens And The State, Vivian E. Hamilton

Faculty Publications

Citizens are born, but they are also made. How its citizens come to be—whether the educations they receive will expand or constrain their future options, whether the values they assimilate will encourage or dissuade their civic engagement, etc.—fundamentally concerns the state. Through the power it wields over a vast range of policymaking contexts, the state can significantly influence (or designate those who will influence) many of the formative experiences of young citizens. Young citizens’ accumulated experiences in turn can significantly influence the future mature citizens they will become. The state insufficiently considers the cumulative nature of its citizens’ development, however. …

Politique Partisane Et Indépendence Judiciare, Neal Devins

Faculty Publications

No abstract provided.

How Congress Paved The Way For The Rehnquist Court's Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban, Neal Devins

Faculty Publications

No abstract provided.

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

If The Judicial Confirmation Process Is Broken, Can A Statute Fix It?, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

The Constitutionality Of The Filibuster, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Norm Theory And The Future Of The Federal Appointments Process, Michael J. Gerhardt

Faculty Publications

No abstract provided.

On Difference And Equality, Cynthia V. Ward

Faculty Publications

No abstract provided.

The Confirmation Mystery, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Diminished Luster In Escambia County?, Neal Devins

Faculty Publications

No abstract provided.

A Political And Constitutional Review Of United States V. Nixon, William W. Van Alstyne

Faculty Publications

No abstract provided.

Communicated, N. Beverley Tucker

Faculty Publications

No abstract provided.

For The United States Telegraph, N. Beverley Tucker

Faculty Publications

No abstract provided.

Communicated, N. Beverley Tucker

Faculty Publications

No abstract provided.

Communicated, N. Beverley Tucker

Faculty Publications

No abstract provided.

No. V, N. Beverley Tucker

Faculty Publications

No abstract provided.

No. Iiii, N. Beverley Tucker

Faculty Publications

No abstract provided.

No. Iii, N. Beverley Tucker

Faculty Publications

No abstract provided.

No. Ii, N. Beverley Tucker

Faculty Publications

No abstract provided.

No. I, N. Beverley Tucker

Faculty Publications

No abstract provided.