Courts Commons^™

To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman

Faculty Scholarship

Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions—Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal—turn this conventional …

Factual Precedents, Allison Orr Larsen

Faculty Publications

Lawyers and judges speak to each other in a language of precedents—decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I …

Engaging Men As Fathers: The Courts, The Law, And Father-Absence In Low-Income Families, Laurie S. Kohn

Cardozo Law Review

No abstract provided.

Procaps S.A. V. Patheon Inc.: Expert Report, Jonathan Baker

Legislative Testimony & Comments

No abstract provided.

Monroe County, Kentucky - Court Records (Sc 1217), Manuscripts & Folklife Archives

Manuscript Collection Finding Aids

Finding aid only for Manuscripts Small Collection 1217. Docket book, Monroe County, Kentucky, December 1832 - November 1838, listing judgments and warrants.

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Seattle University Law Review

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

Mutual Pharmaceutical Co. V. Bartlett And Its Implications, Brian Wolfman, Anne King

Georgetown Law Faculty Publications and Other Works

The authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation.

Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on how plaintiffs injured by …

The Appointment And Removal Of William J. Marbury And When An Office Vests, Saikrishna Bangalore Prakash

Notre Dame Law Review

Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s …

Sotomayor's Empathy Moves The Court A Step Closer To Equitable Adjudication, Veronica Couzo

Notre Dame Law Review

On August 6, 2009, then-Judge, now-Justice, Sonia Sotomayor was confirmed as the nation’s first Latina Supreme Court Justice. While many Latinos embraced the idea of having “Sonia from the Bronx” on the bench, others were fearful that her jurisprudence, combined with her background, would result in “reverse racism.” These fears, while arguably unfounded at the time, have been completely dispelled. Just as Justice Thurgood Marshall transformed the adjudications of the Supreme Court through experiential discourse, so too, to a lesser extent, has Justice Sotomayor. In both oral arguments and written opinions, Justice Sonia Sotomayor has demonstrated educative leadership—enlightening her colleagues …

Selecting The Very Best: The Selection Of High-Level Judges In The United States, Europe And Asia, Christa J. Laser, Tefft Smith, Michael Fragoso, Christopher Jackson, Gregory Wannier

Law Faculty Articles and Essays

This paper has been prepared by Kirkland & Ellis LLP for the Due Process of Law Foundation (“DPLF”), an organization dedicated to promoting and strengthening the rule of law and the respect for human rights in the Americas. The goal is to provide further stimulus to the enhancement of due process and the rule of law in Latin America by encouraging the transparent, merit-based selection and appointment of competent, independent, and impartial judges. An independent and impartial judiciary is an essential precondition to the effective operation of the rule of law, with due process for all. This, in turn, is …

Issue 1: Annual Survey 2013 Table Of Contents

University of Richmond Law Review

No abstract provided.

Preface, Christopher W. Bascom

University of Richmond Law Review

No abstract provided.

Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum

William & Mary Law Review

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of …

The Accidental Agency?, Sapna Kumar

Florida Law Review

This Article presents a new model for examining the role of the Court of Appeals for the Federal Circuit (Federal Circuit) with regard to patent law, positing that the Federal Circuit behaves like an agency and serves as the de facto administrator of the Patent Act. The Federal Circuit has traditionally engaged in a form of substantive rulemaking by issuing mandatory bright-line rules that bind the public. In reviewing patent agency appeals, the Federal Circuit acts more like an agency than a court by minimizing agency deference through the manipulation of standards of review and administrative law doctrines. This position …

A Plausible Future: Some State Courts Embrace Heightened Pleading After Twombly And Iqbal, Joseph W. Owen

North Carolina Central Law Review

No abstract provided.

The Collateral Consequences Of Ex Post Judicial Review, Brianne J. Gorod

Washington Law Review

Judicial review produces disruptions to democratic preferences that are not constitutionally required. Judicial review produces these disruptions because the law the Court declares unconstitutional is not automatically replaced with the laws that policymakers would have enacted had they known their preferred policy was unconstitutional. The Court is institutionally ill-equipped to address these disruptions, and the coordinate branches are often unwilling or unable to do so—unwilling because their membership has changed since the law was enacted, or unable because of institutional features that make quick response difficult. Under either scenario, these disruptions are cause for concern. Yet they are virtually inevitable …

The Normative Legitimacy Of International Courts, Nienke Grossman

All Faculty Scholarship

This Article’s objective is to spark discussion about the standards by which we judge international courts. Traditional justifications for the authority of international courts are based on outmoded assumptions of their role and impact. State consent and procedural fairness to litigants are insufficient to ground the legitimacy of institutions that may adjudicate the international rights and duties of nonlitigants, deeply affect the interests of nonlitigating stakeholders, and shape the law prospectively. These realities mandate a new approach to the legitimacy of international courts. This Article presents alternative or additional approaches for justifying the authority of international courts rooted in both …

Pretrial Restraint Of Assets: Lawful Governmental Interference With The Right To Counsel Of Choice?, Donna L. Eng

UF Law Faculty Publications

In this, the year of the 50th anniversary of Gideon v. Wainwright, we're read a lot of articles discussing the right to counsel, but none, as far as I recall, discussing the right to counsel of choice. While it may be true that there is no right to counsel of choice for those who are appointed counsel, what about those who are fortunate enough to be able to retain counsel? Isn't being entitled to counsel of your choice a logical extension of Gideon?

In Defense Of Implied Injunction Relief In Constitutional Cases, John F. Preis

William & Mary Bill of Rights Journal

If Congress has neither authorized nor prohibited a suit to enforce the Constitution, may the federal courts create one nonetheless? At present, the answer mostly turns on the form of relief sought: if the plaintiff seeks damages, the Supreme Court will normally refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the Court will refuse relief only if Congress has specifically barred it. These contradictory approaches naturally invite arguments for reform. Two common arguments—one based on the historical relationship between law and equity and the other based on separation of powers principles—could quite …

A Comment On "No Comment": The Sub Judice Rule And The Accountability Of Public Officials Inthe 21st Century, Lorne Sossin, Valerie Crystal

Dalhousie Law Journal

The sub judice rule is a rule of court, a statutory rule, a Parliamentary convention and a practice that has developed in the interaction between media and public officials. At its most basic, the sub judice rule prohibits the publication of statements which may prejudice court proceedings. This study examines the nature, rationale and scope ofthe sub judice rule. The authors provide an account of the current state of the rule, and highlight areas where more clarity would be desirable. The authors propose a more coherent approach to the sub jud ice rule, more clearly rooted in the concern over …