Legal Writing and Research Commons^™

The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman

Faculty Scholarship

The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …

Misplaced Modifiers - Say What, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

A Review Of Richard A. Posner, How Judges Think (2008), Jeffrey S. Sutton

Michigan Law Review

I was eager to enter the judiciary. I liked the title: federal judge. I liked the job security: life tenure. And I could tolerate the pay: the same as Richard Posner's. That, indeed, may have been the most flattering part of the opportunity-that I could hold the same title and have the same pay grade as one of America's most stunning legal minds. Don't think I didn't mention it when I had the chance. There is so much to admire about Judge Posner-his lively pen, his curiosity, his energy, his apparent understanding of: everything. He has written 53 books, more …

Telling Through Type: Typography And Narrative In Legal Briefs, Derek H. Kiernan-Johnson

Publications

Most legal authors today self-publish, using basic word-processing software and letting the software’s default settings determine what their documents will look like when printed. As these settings are not optimized for legal texts, they do so at their peril. The default font Times New Roman, for example, as Chief Judge Frank Easterbrook warns, is "utterly inappropriate for long documents [such as] briefs."

Commentators have started urging a more deliberate approach to legal typography. Their suggestions, however, have been content-neutral, intended for all legal texts and focused on goals such as legibility and readability.

Typography, however, has much greater potential. The …

The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeals, Amy E. Sloan

All Faculty Scholarship

Informal en banc review is a procedural expedient that nine of the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to take actions normally reserved for the full court sitting en banc. The circuits that use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal en banc review is significant when compared with formal en banc review. Informal en banc review is more efficient than formal en banc review, but the efficiency benefits come at a price. Informal en …

The Elements Of Legal Style, Mark P. Painter

The Journal of Appellate Practice and Process

No abstract provided.

What Do Federal District Judges Want?: An Analysis Of Publications, Citations, And Reversals, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

We report evidence from a dataset of federal district judges from 2001 to 2002 that district judges adjust their opinion-writing practices to minimize their workload while maximizing their reputation and chance for elevation to a higher court. District judges in circuits with politically uniform circuit judges are better able to predict what opinions will get affirmed by the circuit court, leading to higher publication rates and a higher affirmance rate. In contrast, district judges in circuits with politically diverse circuit judges are less able to predict the preferences of the reviewing circuit court panel, leading district judges to publish fewer …

Practice Makes Perfect? An Empirical Study Of Claim Construction Reversal Rates In Patent Cases, David L. Schwartz

Michigan Law Review

This Article examines whether U.S. district court judges improve their skills at patent claim construction with experience, including the experience of having their own cases reviewed by the Court of Appeals for the Federal Circuit. In theory, higher courts teach doctrine to lower courts via judicial decisions, and lower courts learn from these decisions. This Article tests the teaching-and-learning premise on the issue of claim construction in the realities of patent litigation. While others have shown that the Federal Circuit reverses a large percentage of lower court claim constructions, no one has analyzed whether judges with more claim construction appeal …

Wikipedia Made Law? The Federal Judicial Citation Of Wikipedia, 26 J. Marshall J. Computer & Info. L. 229 (2008), Amber Lynn Wagner

UIC John Marshall Journal of Information Technology & Privacy Law

In this comment the author examines the new and growing body of federal opinions citing Wikipedia an authoritative source. The comment details how Wikipedia articles are generated, and the ease with which anyone can edit them, to illustrate their shortcomings as sources for making judicial determinations. The author provides examples of federal cases where judges rely on Wikipedia to define terms ranging from colloquial phrases to medical equipment. The author points out that in spite of several academic institutions and the U.S. Trade and Patent Office banning it as a source, federal judges continue to rely on Wikipedia in their …

Concurrence, Posner-Style: Ten Ways To Look At The Concurring Opinions Of Judge Richard A. Posner, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

United States V. Grier, Lyndsay V. Ruotolo

NYLS Law Review

No abstract provided.

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.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Constitution As Idea: Defining Describing Deciding In Kelo, Marc L. Roark

ExpressO

In June 2005, the Supreme Court in a Five to Four Decision marked its most controversial decision in recent memory. The case of Kelo v. City of New London, set off a fire storm of response to the Court’s ruling that economic development takings satisfied the Fifth Amendment. This essay is about Kelo. It is about how the Court uses words, how the defining ability of words create institutional space in which the Court operates, and which defines things beyond the words.

Judge Posner's Dissenting Judicial Oeuvre And The Aesthetics Of Canonicity, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Political Advocacy On The Supreme Court: The Damaging Rhetoric Of Antonin Scalia, Stephen A. Newman

NYLS Law Review

No abstract provided.

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps

ExpressO

This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the US …

The Prophecies Of The Prophetic Jurist – A Review Of Selected Works Of Oliver Wendell Holmes, Jr., Kissi Agyebeng

Cornell Law School J.D. Student Research Papers

This is a review of the methodology and style of legal research of Oliver Wendell Holmes, Jr., focusing on the ideological and philosophical leanings that informed his scholarship. The review spans selected works of his undergraduate days through his mid-career writings and his representative opinions on the Supreme Judicial Court of the State of Massachusetts and the Supreme Court of the United States.

Adjusting The Rear-View Mirror: Rethinking The Use Of History In Supreme Court Jurisprudence, Mitchell Gordon

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck

Faculty Scholarship

No abstract provided.

Judges And Ideology: Public And Academic Debates About Statistical Measures, Gregory C. Sisk, Michael Heise

Cornell Law Faculty Publications

Scholars who use empirical methods to study the behavior of judges long have labored in relative obscurity, unknown outside of academic circles (and indeed they only recently have emerged into the mainstream of the legal academy). However, the seclusion of the ivory tower has been breached as public attention has become increasingly focused upon studies that suggest the influence of ideological or partisan variables upon the outcomes of court cases. Over the last few years, the statistical work of scholars on judicial decisionmaking has provoked controversy in the wider legal community and has been enlisted by one side of the …

Kruse V. Wells Fargo Home Mortgage, Inc. (Decided September 10, 2004), Jennifer Katehos

NYLS Law Review

No abstract provided.

Defining Dicta, Michael Abramowicz, Maxwell Stearns

George Mason University School of Law Working Papers Series

In recent decades, legal scholars have devoted substantially greater attention to studying the origin and nature of stare decisis than to defining the distinction between holding and dicta. This appears counter-intuitive when one considers, first, that stare decisis applies only to holdings of announced precedents, and second, that beyond problematic and rudimentary intuitions, the legal system has failed to develop meaningful definitions of these terms. While lawyers, legal scholars, and jurists likely assume that they can identify dicta when they see it, a careful analysis that categorizes the range of judicial assertions in need of proper characterization reveals that defining …

The Role Of Purposivism In The Delegation Of Rulemaking Authority To The Courts, Michael Rosensaft

ExpressO

The courts are often used by Congress as a “political lightning rod,” when Congress cannot decide how to resolve an issue. Congress relies on administrative agencies for their expertise, and it also makes sense for Congress to delegate some rulemaking authority to the courts, relying on a court’s expertise in developing caselaw in an incremental basis. However, this authority should not be lightly implied. A court can tell that Congress has delegated rulemaking authority to it when the purpose of the statute is clear and the text is broadly worded. It thus makes sense in these cases that purposivism should …

Foreword, Helen Meyer

William Mitchell Law Review

The William Mitchell Law Review has decided once again to dedicate one issue of this annual volume to Recent Decisions of the Minnesota Supreme Court. This issue reviews some of the court’s more important decisions from the 2003-04 term. If tradition is honored, the articles and notes you find in these pages will be thorough, well-written, and thoughtful in their analysis of each decision. This annual review is a tradition that gives our legal community a wonderful opportunity to publicly comment on the work of the court. This public testing of the court’s work is a healthy part of the …

Mediated Popular Constitutionalism, Barry Friedman

Michigan Law Review

There are divergent views in the legal academy concerning judicial review, but at their core these views share a common (and possibly flawed) premise. The premise is that the exercise of judicial review is countermajoritarian in nature. There is a regrettable lack of clarity in the relevant scholarship about what "countermajoritarian" actually means. At bottom it often seems to be a claim, and perhaps must be a claim, that when judges invalidate governmental decisions based upon constitutional requirements, they act contrary to the preferences of the citizenry. Some variation on this premise seems to drive most normative scholarship regarding judicial …

Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner

Michigan Law Review

Cass Sunstein and Adrian Vermeule argue in Interpretation and lnstitutions that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic to the point of being immodest, is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better …

Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule

Michigan Law Review

Suppose that a statute, enacted several decades ago, bans the introduction of any color additive in food if that additive "causes cancer" in human beings or animals. Suppose that new technologies, able to detect low-level carcinogens, have shown that many potential additives cause cancer, even though the statistical risk is often tiny - akin to the risk of eating two peanuts with governmentally-permitted levels of aflatoxins. Suppose, finally, that a company seeks to introduce a certain color additive into food, acknowledging that the additive causes cancer, but urging that the risk is infinitesimal, and that if the statutory barrier were …