Digital Realty, Legislative History, And Textualism After Scalia, 2019 Pepperdine University
Digital Realty, Legislative History, And Textualism After Scalia, Michael Francus
Pepperdine Law Review
There is a shift afoot in textualism. The New Textualism of Justice Scalia is evolving in response to a new wave of criticism. That criticism presses on the tension between Justice Scalia’s commitment to faithful agency (effecting the legislature’s will) and his rejection of legislative history in the name of ordinary meaning (which ignores legislative will). And it has caused some textualists to shift away from faithful agency, even to the point of abandoning it as textualism’s grounding principle. But this shift has gone unnoticed. It has yet to be identified or described, let alone defended, even ...
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, 2019 University of Nebraska College of Law
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald ...
The Case Against Absolute Judicial Immunity For Immigration Judges, 2019 University of Minnesota Law School
The Case Against Absolute Judicial Immunity For Immigration Judges
Law & Inequality: A Journal of Theory and Practice
A federal regulation states that immigration hearings shall be open to the public. Courts and scholars also have located a right to observe these proceedings in the First Amendment. And yet immigration judges (IJ) have excluded members of the press and other observers from hearings for no stated legal reasons, thus effectively eliminating public scrutiny of proceedings that affect millions of citizens and non-citizens in the United States. In response to a lawsuit pursuing monetary, injunctive, and declaratory relief after an IJ ordered guards to remove a reporter from a federal building, an Eleventh Circuit panel held IJs have absolute ...
Table Of Contents And Editorial Board, 2019 Pepperdine University
Table Of Contents And Editorial Board, Yoori Chung
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Slip Slidin' Away: The Erosion Of Apa Adjudication, 2019 Pepperdine University
Slip Slidin' Away: The Erosion Of Apa Adjudication, William Funk
Journal of the National Association of Administrative Law Judiciary
Although the enactment of the Administrative Procedure Act (APA) was intended to establish a uniform set of procedures applicable to adjudications "required by statute to be determined on the record after opportunity for an agency hearing," agencies have long sought to avoid those procedures, and, in particular, Administrative Law Judges, by substituting informal, non-APA adjudications. Over time, the courts have accelerated this substitution through a misapplication of three Supreme Court opinions. This article describes the original understanding of the APA and how that original understanding has been eroded over the years. The article then asks whether this is a problem ...
Alj Support Systems: Staff Attorneys And Decision Writers, 2019 Selected Works
Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver
Russell L. Weaver
No abstract provided.
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, 2019 University of Pennsylvania Law School
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
Faculty Scholarship at Penn Law
This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that ...
The Supreme Court's Legitimacy Dilemma, 2019 William & Mary Law School
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
No abstract provided.
Your Honor, On Social Media: The Judicial Ethics Of Bots And Bubbles, 2019 University of Nevada, Las Vegas -- William S. Boyd School of Law
Your Honor, On Social Media: The Judicial Ethics Of Bots And Bubbles, Katrina Lee
Nevada Law Journal
No abstract provided.
Do Justices Time Their Retirements Politically? An Empirical Analysis Of The Timing And Outcomes Of Supreme Court Retirements In The Modern Era, 2019 Loyola University Chicago School of Law
Do Justices Time Their Retirements Politically? An Empirical Analysis Of The Timing And Outcomes Of Supreme Court Retirements In The Modern Era, Christine Kexel Chabot
Utah Law Review
As the rampant speculation preceding Justice Kennedy’s retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice’s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama’s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices’ retirement decisions and disagree on whether ...
Keynote Address: Staying Afloat And Engaged In Today's Flooded Marketplace Of Speech, 2019 United States Court of Appeals for the Seventh Circuit
Keynote Address: Staying Afloat And Engaged In Today's Flooded Marketplace Of Speech, Michael Y. Scudder
Notre Dame Law Review
The contributions to this Symposium cover substantial ground, address important issues, and offer much to react to. This Symposium, I submit, also occurs at a time of significance for the First Amendment in the Supreme Court. Perhaps the Court’s most fervent and consequential defender of free speech, Justice Anthony Kennedy, has retired. His impact on American constitutional law was enormous, including, in my view, in the area of free speech. I had the privilege of clerking for Justice Kennedy, admire him deeply as judge and person, and want to offer some reflections on what I see as a few ...
Simplified Courts Can't Solve Inequality, 2019 S.J. Quinney College of Law, University of Utah
Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter
Utah Law Faculty Scholarship
State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the ...
Social Media, Venue And The Right To A Fair Trial, 2019 Elisabeth Haub School of Law at Pace University
Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer
Pace Law Faculty Publications
Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social ...
Active Judicial Governance, 2019 University at Buffalo School of Law
Active Judicial Governance, James A. Gardner
Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.
Democratizing Interpretation, 2019 Selected Works
Democratizing Interpretation, Anya Bernstein
Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.
These outsourcing approaches show a disconnect between the questions judges pose and the methods they ...
Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan
The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional ...
Filling The Ninth Circuit Vacancies, 2019 College of William & Mary Law School
Filling The Ninth Circuit Vacancies, Carl Tobias
William & Mary Bill of Rights Journal
Upon Republican President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit experienced some pressing appellate vacancies, which the Administrative Office of the United States Courts (AO) carefully identified as “judicial emergencies” because the tribunal resolves a massive docket. Last year’s death of the iconic liberal champion Stephen Reinhardt and the late 2017 departure of libertarian former Chief Judge Alex Kozinski—who both assumed pivotal circuit leadership roles over numerous years—and a few of their colleagues’ decision to leave active court service thereafter, mean the tribunal presently confronts four judicial emergencies and resolves ...
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, 2019 College of William & Mary Law School
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
William & Mary Law Review
Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor ...
To Bail Or Not To Bail: Protecting The Presumption Of Innocence In Nevada, 2019 Nevada Law Journal
To Bail Or Not To Bail: Protecting The Presumption Of Innocence In Nevada, Ebeth Palafox, Brendan Mcleod
Nevada Law Journal Forum
This white paper aims to discuss the issues associated with bail reform in Nevada, provide an analysis of bail reform efforts across the country, and purpose possible solutions for obstacles to bail reform in Nevada. The white paper’s proposed recommendations for practical bail reform is a three-phase plan to eliminate the injustices that arise from Nevada’s current cash bail model.
Deliberation And Decision-Making Process In The Inter-American Court Of Human Rights: Do Individual Opinions Matter?, 2019 Northwestern Pritzker School of Law
Deliberation And Decision-Making Process In The Inter-American Court Of Human Rights: Do Individual Opinions Matter?, Ranieri L. Resende
Northwestern Journal of Human Rights
The work is focused on the adjudicatory nature of the Inter-American Court of Human Rights and investigates its model of deliberation, considering three basic schemes: per curiam, seriatim and hybrid. In order to identify an institutional pattern, the importance of individual opinions is analyzed through the quantitative performance of each category of judge (ad hoc and regular), as well as each type of adjudicative activity (judgments and advisory opinions). The quantitative data is also useful to better understand the explicit assimilation of separate opinions to the core reasoning of future cases. As a result, it has been possible to identify ...