Evaluating Judges And Judicial Institutions: Reorienting The Perspective,
2010
Duke Law School
Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi
Faculty Scholarship
Empirical scholarship on judges, judging, and judicial institutions, a staple in political science, is becoming increasingly popular in law schools. We propose that this scholarship can be improved and enhanced by greater collaboration between empirical scholars, legal theorists, and the primary subjects of the research, the judges. We recently hosted a workshop that attempted to move away from the conventional mode of involving judges and theorists in empirical research, where they serve as commentators on empirical studies that they often see as reductionist and mis-focused. Instead, we had the judges and theorists set the discussion agenda for the empiricists by …
A Coase Theorem For Constitutional Theory,
2010
Duke Law School
A Coase Theorem For Constitutional Theory, Neil S. Siegel
Faculty Scholarship
There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim—that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion—is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan to do so again. …
The Frequency, Predictability, And Proportionality Of Jury Awards Of Punitive Damages In State Courts In 2005: A New Audit,
2010
Duke Law School
The Frequency, Predictability, And Proportionality Of Jury Awards Of Punitive Damages In State Courts In 2005: A New Audit, Neil Vidmar, Mirya Holman
Faculty Scholarship
The state of punitive damages in the United States has been a controversial topic for more than three decades, resulting in litigation reaching the U.S. Supreme Court and state supreme courts. Various business advocacy groups have sought to drastically curb or eliminate punitive damages while plaintiffs’ lawyers and consumer groups vigorously defend the use of punitive damages. State legislatures have responded with many substantive and procedural reforms over the years. Yet, in Exxon Shipping Co. v. Baker, the United States Supreme Court, while approvingly citing empirical evidence indicating that there are “not mass-produced runaway awards” and that “by most accounts …
On Not Being “Not An Originalist”,
2010
Duke Law School
On Not Being “Not An Originalist”, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Further Reflections On Not Being “Not An Originalist”,
2010
Duke Law School
Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Giving Unconscionability More Muscle: Attorney's Fees As A Remedy For Contractual Overreaching,
2010
Widener University School of Law
Giving Unconscionability More Muscle: Attorney's Fees As A Remedy For Contractual Overreaching, Stephen E. Friedman
Georgia Law Review
This Article seeks to broaden the conversation about unconscionability. While most of the discussion has focused on the appropriate standard for determining unconscionability, this Article focuses on the appropriate remedy to be imposed when unconscionability is found. The current remedy for unconscionability is nonenforcement or limited enforcement of unconscionable contracts or contract terms. This remedy is inadequate and seriously undermines unconscionability's effectiveness as a tool for policing against contractual overreaching. The Article proposes that courts be given discretion to award attorney's fees to consumers who successfully establish the unconscionability of a standard form contract. Such a remedy would enable unconscionability …
Limiting Article Iii Standing To "Accidental" Plaintiffs: Lessons From Environmental And Animal Law Cases,
2010
Pepperdine University School of Law
Limiting Article Iii Standing To "Accidental" Plaintiffs: Lessons From Environmental And Animal Law Cases, Robert J. Pushaw Jr.
Georgia Law Review
According to the Supreme Court, Article III's extension
of "judicialPower" to "Cases" and "Controversies"limits
standing to plaintiffs who can demonstrate an
individualized "injury in fact" that was caused by the
defendant and that is judicially redressable. Article III's
text and history, however, do not mention "injury,"
"causation,"or "redressability."
Furthermore, these standards are malleable and have
been applied to achieve ideological goals, especially in
cases involving environmental and animal-welfare laws.
Most notably, the Court has recognized an "injury in fact"
to one's aesthetic enjoyment of nature, but determining
such an injury is arbitrarybecause "aesthetics"is a matter
of personal taste. Judges have …
Current Issues In Judicial Disqualifications Symposium 2011,
2010
Fordham University School of Law
Current Issues In Judicial Disqualifications Symposium 2011, Michael W. Martin
Faculty Scholarship
Public confidence in the judiciary's integrity is critical, and
A Non-Fatal Collision: Interpreting Rluipa Where Religious Land Uses And Community Interests Meet,
2010
St. Mary’s University School of Law,
A Non-Fatal Collision: Interpreting Rluipa Where Religious Land Uses And Community Interests Meet, Adam J. Macleod
Faculty Articles
Imagine a large church located in a multi-family residential zoning district, where commercial uses are not permitted and religious uses are permitted by special use permit. The church applies for a special use permit to open a coffee shop, which would operate throughout the week during normal business hours and would supplement and support the church's other ministries. At the hearing on the permit application, many neighbors object. They fear increased traffic, visual blight, and safety hazards for their children. The city denies the permit. The church files an action against the city, alleging that the city has substantially burdened …
