Courts Commons^™

Resolving Cases On The Merits, Jay Tidmarsh

Journal Articles

Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Journal Articles

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …

Framing Justice: Media, Bias, And Legal Decisionmaking, Perry L. Moriearty

Maryland Law Review

No abstract provided.

Caperton V. A.T. Massey Coal Co.: Something Is Rotten In The State Of West Virginia—A Common-Law Approach To Constitutional Judicial Disqualification, Benjamin A. Levin

Maryland Law Review

No abstract provided.

Diggs V. State: A Not-So-Plain Error? , Maggie T. Grace

Maryland Law Review

No abstract provided.

Reply: Exploring Panel Effects, Pauline Kim

Scholarship@WashULaw

This Reply responds to methodological criticisms of an earlier empirical study of panel effects on the United States Court of Appeals, Deliberation and Strategy on the United States Courts of Appeals, which appeared in the University of Pennsylvania Law Review. That study found that federal appellate judges appeared to be more or less open to influence by their panel colleagues depending upon how the preferences of the panel members align with the preferences of the circuit as a whole. On the other hand, their willingness to avoid dissents and go along with their panel colleagues seemed unaffected by their relative …

Countering The Majoritarian Difficulty, Stefanie A. Lindquist, Amanda Frost

Scholarship@WashULaw

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape.

This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are …

Book Review: Bob Rains, True Tales Of Trying Times: Legal Fables For Today (2008), Erik M. Jensen

Nevada Law Journal

In this jewel of a book, Rains presents a collection of fifty-two fabulous "legal fables," each describing real judicial decisions from the last four or five years- in that respect, not fables at all. Unlike the typical law review article, his book actually deals with the law. And Rains's poetic commentary accompanies all the fables. Like much of Rains's work, the book has both rhyme and reason.

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar

Faculty Publications

This Article examines the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court's and individual Justices' rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions to the field of …

A Practical Framework For Preventing "Mistrial By Twitter", Ebony Nicolas

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Child Custody: Don't Worry, A Bet Din Can Get It Right, Jeffrey Haberman

Cardozo Journal of Conflict Resolution

This Note aims to explore the reasoning behind the state's reluctance to accept arbitration, including that of the bet din, as a means of resolving child custody disputes. The Note highlights the advantages of arbitration, both in general and when used to determine child custody. The Note examines the arguments proffered by the courts to justify the view that they, and not outside arbitrators, best resolve child custody battles. This Note argues that when two parties agree to arbitrate their divorce settlement before a bet din, the award should be given the same deference as a bet din's resolution of …

Tribunal Jurisdiction Over Charter Remedies: Now You See It, Now You Don't, Steve Coughlan

Articles, Book Chapters, & Popular Press

The Supreme Court's decision in R. v. Conway (reported ante p. 201) simplifies the test for deciding whether an administrative tribunal has jurisdiction to grant Charter remedies. At least in principle, it heralds a broader approach to allowing litigants to seek such remedies at the earlier stage of a proceeding, rather than waiting for a review before a court or pursuing a parallel action. The attitude behind Conway signals a greater willingness to allow administrative tribunals to grant Charter remedies. The test on the key question of whether a tribunal has jurisdiction over a particular remedy is still essentially the …

Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain

Publications

International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

Publications

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …

Law, Facts, And Power, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in …

Saving Civil Justice: Judging Civil Justice, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

No abstract provided.

A Prolonged Slump For ‘Plaintiff-Pitchers’: The Narrow ‘Strike Zone’ For Securities Plaintiffs In The Fourth Circuit, Marc I. Steinberg, Dustin Appel

Faculty Journal Articles and Book Chapters

This article focuses on the narrow “strike zone” that plaintiffs must overcome in private securities actions instituted in the Fourth Circuit. Based on empirical data generated over a fourteen-year span, there emerges a clear finding that during that time period defendants were victorious in almost all cases, either on the merits of the case or due to procedural obstacles. The authors posit that this pattern of difficulty for plaintiffs arises, at least in part, from the Fourth Circuit’s restrictive interpretation of various requisite elements of these causes of action, such as materiality and scienter, as well as the Fourth Circuit’s …

The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination, Aaron F.W. Meek

American Indian Law Review

No abstract provided.

Penumbral Thinking Revisited: Metaphor In Legal Argumentation, Chris Rideout

Faculty Articles

In the modern jurisprudence of the United States Supreme Court, the controversy over the place of metaphor came directly into the spotlight in Griswold v. Connecticut. Justice Douglas, writing for the majority and relying in part on metaphoric reasoning for his argument, located a right to privacy in the penumbral area formed by emanations from specific guarantees in the Bill of Rights. The various opinions in Griswold represent a divide regarding the place of metaphoric reasoning in legal argument. Justice Douglas employs metaphoric reasoning, while several of his fellow justices either avoid it or reject it. Because the case has …