Courts Commons^™

Setting A Precedent About Precedent: William Richman On Federal Appellate Justice, Amy E. Sloan

All Faculty Scholarship

This paper is a tribute to Professor William Richman's scholarship on appellate practice in honor of his retirement.

Mapping Supreme Court Doctrine: Civil Pleading, Scott Dodson, Colin Starger

All Faculty Scholarship

This essay, adapted from the video presentation available on Vimeo as #89845875, graphically depicts the genealogy and evolution of federal civil pleading standards in U.S. Supreme Court opinions over time. We show that the standard narrative — of a decline in pleading liberality from Conley to Twombly to Iqbal — is complicated by both progenitors and progeny. We therefore offer a fuller picture of the doctrine of Rule 8 pleading that ought to be of use to judges and practitioners in federal court. We also hope, through the video presentation, to introduce a new visual format for academic scholarship that …

The Puzzling Persistence Of Dual Federalism, Ernest A. Young

Faculty Scholarship

This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …

The Effectiveness Of International Adjudicators, Laurence R. Helfer

Faculty Scholarship

This chapter, in the Oxford Handbook of International Adjudication, provides an overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third approach, embeddedness …

How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs

Faculty Scholarship

Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.

Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are …

The Successes And Challenges For The European Court, Seen From The Outside, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of …

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …

Judging Justice On Appeal, Marin K. Levy

Faculty Scholarship

No abstract provided.

Peruta, The Home-Bound Second Amendment, And Fractal Originalism, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Neil Vidmar, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

Can The Law Meet The Demands Made On It?, George C. Christie

Faculty Scholarship

This is my contribution to a festscrift in honor of Professor Don Wallace on his retirement from the Georgetown University School of Law. My essay points out the problems and dangers of the increasing delegation to international and domestic courts, in broad and vague value-laden language, the responsibility of making basic moral and policy decisions for society. It saddles courts with a task that they are not particularly suited to perform and it is certainly not the way a democratic society should function.

Identifying Congressional Overrides Should Not Be This Hard, Deborah Widiss

Articles by Maurer Faculty

This paper is an invited response to Professor William N. Eskridge, Jr., and Mr. Matthew R. Christiansen’s recently-published study (92 Texas L. Rev. 1317 (2014)) identifying and analyzing Congressional overrides of Supreme Court statutory interpretation decisions since 1967. Christiansen and Eskridge provide a new taxonomy for overrides that distinguishes between "restorative" overrides, which denounce a judicial interpretation as misrepresenting prior Congressional intent, and overrides that simply update or clarify policy. Although political science and legal scholarship has focused on the interbranch struggle implicit in restorative overrides, Christiansen and Eskridge classify only about 20% of the overrides in their total dataset …

How To Talk About Sentencing Policy--And Not Disparity, Nancy Gertner Judge

Loyola University Chicago Law Journal

No abstract provided.

Threats And Bullying By Prosecutors, Bennett L. Gershman

Loyola University Chicago Law Journal

No abstract provided.

The Economic Perspective On Sentencing, Joshua B. Fischman

Loyola University Chicago Law Journal

Although economists have been actively engaged in research on criminal sentencing, the synergies between the two fields are hardly obvious. This Essay considers what economists have to contribute to the study of sentencing. One common explanation—that economists’ use of rational choice modeling has applicability to the study of deterrence—does not adequately account for much of the sentencing research that economists are producing. This Essay considers two alternative explanations. First, empirical research in both fields is predominately observational. Due to practical limits on controlled experimentation, economists have developed a variety of tools for making causal inferences from observational data, many of …

Fictions Of Omniscience, Karen Petroski

Kentucky Law Journal

Recent studies of the legislative process have questioned the rationales for many principles of statutory interpretation. One of those traditional rationales is the so-called fiction of legislative omniscience, thought to underlie many judicial approaches to statutory decisions. This Article presents the first comprehensive analysis of judicial assertions about legislative awareness and proposes a different way of understanding them. The proposed perspective compares fictions of legislative omniscience with similar but more widely accepted imputations of knowledge in other areas of law; it also draws on recent findings from other disciplines on the use and comprehension of statements about fictional situations. The …

The Many Lanes Out Of Court: Against Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Maryland Law Review

No abstract provided.

Problem-Solving Courts And Pragmatism, Richard C. Boldt

Maryland Law Review

No abstract provided.

Citizen Participation In Criminal Trials In Japan: The Saiban-In System And Victim Participation In Japan In International Perspectives, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.