Legal Theory Commons^™

The Return Of A Judicial Artifact? How The Supreme Court Could Examine The Question Of The Nondelegation Doctrine’S Place In Future Cases, Dalton Davis

Helms School of Government Undergraduate Law Review

No abstract provided.

Gender And Judicial Decision-Making, Alexandra Just

Undergraduate Theses

This study employs a unique two-tiered approach, involving both quantitative and qualitative methodology to analyze the influences – specifically, a judge’s gender – on the judicial decision-making process. First, a quantitative bivariate regression analysis was conducted to determine whether a Federal District Court judge’s gender had a statistically significant influence on the ideological direction of case outcomes (which is either liberal, meaning the decision was in favor of the petitioner, or conservative, meaning the decision was against the petitioner). Data was analyzed using the statistical program SPSS and was pulled from the 2016 Carp-Manning database, which contains over 110,000 federal …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

'It Wasn't Supposed To Be Easy': What The Founders Originally Intended For The Senate's 'Advice And Consent' Role For Supreme Court Confirmation Processes, Michael W. Wilt

Channels: Where Disciplines Meet

The Founders exerted significant energy and passion in formulating the Appointments Clause, which greatly impacts the role of the Senate and the President in appointing Supreme Court Justices. The Founders, through their understanding of human nature, devised the power to be both a check by the U.S. Senate on the President's nomination, and a concurrent power through joint appointment authority. The Founders initially adopted the Senate election mode via state legislatures as a means of insulation from majoritarian passions of the people too. This paper seeks to understand the Founders envisioning for the Senate's 'Advice and Consent' role as it …

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at the …

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism. …

M'Culloch In Context, Mark R. Killenbeck

Arkansas Law Review

M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example, very few …

Mcculloch At 200, David S. Schwartz

Arkansas Law Review

March 6, 2019 marked the 200th anniversary of the Supreme Court’s issuance of its decision in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States, the successor to Alexander Hamilton’s national bank. McCulloch v. Maryland involved a constitutional challenge by the Second Bank of the United States to a Maryland tax on the banknotes issued by the Bank’s Baltimore branch. The tax was probably designed to raise the Second Bank’s cost of issuing loans and thereby disadvantage it relative to Maryland’s own state-chartered banks. Marshall’s opinion famously rejected the Jeffersonian strict-constructionist argument that implied powers …

Oral Argument Tactics On The Supreme Court Bench: A Comparative Analysis Of Verbal Tools Used By Justices Sotomayor, Kagan, And Gorsuch, Corinne Cichowicz

Politics Honors Papers

Oral argument scholars like Adam Feldman have categorized the Supreme Court justices’ behavior during oral argument using the approach-based method, labeling each as one-sided, even-handed, or restrained. This approach is too narrowly constructed. Scholars sometimes categorize justices in terms of the tools they use, which include questions, hypotheticals, declarations, interruptions, tone of voice, and silence (Feldman 2018a). Neither of these methods alone produce a nuanced analysis of each justice’s actions during an individual case or across a Term. As the Court’s composition and dynamics are continuously changing, scholarship on oral argument needs to adapt to …

Harmless Constitutional Error: How A Minor Doctrine Meant To Improve Judicial Efficiency Is Eroding America's Founding Ideals, Ross C. Reggio

CMC Senior Theses

The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over …

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …

Arguing With Friends, William Baude, Ryan D. Doerfler

All Faculty Scholarship

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive …

African Americans And Punishment For Crime: A Critique Of Mainstream And Neoliberal Discourses, Jason M. Williams, Nishaun Tarae Battle

Department of Justice Studies Faculty Scholarship and Creative Works

Understandings of punishment within the criminological enterprise have failed to capture the nuances associated with experiencing punishment. Moreover, mainstream academic discourses are inherently anachronistic in their conclusions on punishment, thus leaving significant gaps to be filled. One such gap is that of racialized history. This article attempts to make sense of punishment discourses (past and present) by situating them in their proper context. We argue that punishment, in particular for Blacks, is ideological and longstanding. Moreover, we posit that the prolonged punishment of Blacks is hyper manifested in contemporary society via neoliberal logic that has increasingly disabled race as a …

The One Exhibition The Roots Of The Lgbt Equality Movement One Magazine & The First Gay Supreme Court Case In U.S. History 1943-1958, Joshua R. Edmundson

Electronic Theses, Projects, and Dissertations

The ONE Exhibition explores an era in American history marked by intense government sponsored anti-gay persecution and the genesis of the LGBT equality movement. The study begins during World War II, continues through the McCarthy era and the founding of the nation’s first gay magazine, and ends in 1958 with the first gay Supreme Court case in U.S. history.

Central to the story is ONE The Homosexual Magazine, and its founders, as they embarked on a quest for LGBT equality by establishing the first ongoing nationwide forum for gay people in the U.S., and challenged the government’s right to engage …

Judge Posner’S Simple Law, Mitchell N. Berman

All Faculty Scholarship

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely—from the Bluebook …

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan

Justice Stewart Meets The Press, Keith Bybee

Keith J. Bybee

Among the Supreme Court Justices who have articulated distinctive views of free expression, Justice Potter Stewart alone placed particular emphasis on the First Amendment's protection of a free press. Drawing upon the lessons of history, the plain language of the Constitution, the political events of his day, and his own personal experience, Stewart argued that the organized news media should be considered an essential part of the checks-and-balances competition between the legislative, executive, and judicial branches of the federal government. Stewart’s emphasis on the special structural function of the established press placed him at odds with most of his colleagues …

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to …

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Beyond Judicial Populism, Anil Kalhan

Anil Kalhan

No abstract provided.

Courting Power, Anil Kalhan

Anil Kalhan

No abstract provided.

The Role Of The Federal Judge In The Constitutional Structure: An Originalist Perspective, Diarmuid F. O'Scannlain

San Diego Law Review

Join me now in examining some of the structural features of our Constitution. And let’s do so by focusing upon cases that have come before my court—the United States Court of Appeals for the Ninth Circuit, the second highest federal court in the land, inferior only to the Supreme Court of the United States. My goal is to present, in modest outline, an originalist perspective on the federal judge’s role, particularly my role as a circuit judge, in the constitutional order.

Holmes, Cardozo, And The Legal Realists: Early Incarnations Of Legal Pragmatism And Enterprise Liability, Edmund Ursin

San Diego Law Review

The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy …

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

De Los Principios Constitucionales Al Activismo Judicial. El Voto De Minoría En El Caso "Municipalidad De Pucón", Sergio Verdugo Sverdugor@Udd.Cl, José Francisco García

Sergio Verdugo R.

No abstract provided.

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic approaches to …

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its …

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

Heidegger And The Essence Of Adjudication, George Souri

George Souri

This paper presents an account of adjudication based on the philosophy of Martin Heidegger. As this paper argues, we can only hope to better understand adjudication if we recognize that adjudication is a socio-temporally situated activity, and not a theoretical object. Heidegger’s philosophical insights are especially salient to such a project for several reasons. First, Heidegger’s re-conception of ontology, and his notion of being-in-the-world, provide a truer-to-observation account of how human beings come to understand their world and take in the content of experience towards completing projects. Second, Heidegger’s account of context, inter-subjectivity, and common understanding provide a basis upon …

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …