Jurisprudence
Fair Notice, The Rule of Law, and Reforming Qualified Immunity
Nathan S. Chapman
Abstract After a series of highly publicized incidents of police violence, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff’s constitutional rights unless a reasonable officer would have known that the right was “clearly established.” […]
In Search of the Presumption of Regularity
Aram A. Gavoor & Steven A. Platt
Abstract The presumption of regularity is an imprecise principle that federal courts apply in varying ways to presume federal officers and employees lawfully and consistently discharge their official duties. The presumption gained national significance during the Trump Administration in several key cases in which it was implicated, but the contours of the presumption were never […]
Plurality Decisions and the Ambiguity of Precedential Authority
Ryan C. Williams
Abstract The Supreme Court sometimes decides cases without reaching a majority-supported agreement on a rule that explains the outcome. Determining the precedential effect of such plurality decisions is a task that has long confounded both the Supreme Court and the lower courts. But while academic commenters have proposed a variety of frameworksfor addressing the problem […]
The “Fixation Thesis” and Other Falsehoods
Frederick Mark Gedicks
Abstract This Article challenges the so-called “fixation thesis” of public meaning originalism. This thesis holds that the meaning of the Constitution was fixed when adopted and exists in the past as a fact, unaffected by what anyone thinks about it in the present. For public meaning originalists, constitutional meaning is always ontologically “there” in the […]
Judicial Impartiality in a Partisan Era
Written by: Cassandra Burke Robertson
Abstract Judicial legitimacy rests on the perception of judicial impartiality. As a partisan gulf widens among the American public, however, there is a growing skepticism of the judiciary’s neutrality on politically sensitive topics. Hardening partisan identities mean that there is less middle ground on political issues and less cooperation among those with differing political views. […]
Interpreting the Supreme Court: Finding Meaning in the Justices’ Personal Experiences
Written by: Amy Howe
Abstract At his 2004 confirmation hearing, Chief Justice John G. Roberts Jr. famously compared the role of a Supreme Court Justice to that of a baseball umpire and promised “to remember that it’s my job to call balls and strikes.” Roberts likely intended this to mean that he would serve as a neutral arbiter of […]
Jonathan Remy Nash, Expertise and Opinion Assignment on the Courts of Appeals: A Preliminary Investigation
This Article examines the role of expertise in judicial opinion assignment and offers four contributions: First, this Article develops a general theory of opinion assignment on multimember courts. Second, this Article uses that theory to predict how expertise might influence opinion assignment. Third, because the theory advanced in this Article suggests that the courts of […]
Kevin J. Lynch, The Lock-in Effect of Preliminary Injunctions
One important bias economists and psychologists have identified is the lock-in effect. The lock-in effect causes a decision maker who must revisit an earlier decision to be locked in to that earlier decision. The effect is particularly pronounced where the earlier decision led to the investment of resources that cannot be recovered. Although lock-in does […]
Deborah Thompson Eisenberg, Regulation by Amicus:The Department of Labor's Policy Making in the Courts
This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in […]
Naomi Harlin Goodno, When the Commerce Clause Goes International: A Proposed Legal Framework for the Foreign Commerce Clause
The world is becoming a smaller place. Technology and the Internet have made global travel and communication easier, quicker, and more common. Novel legal issues arise every day to deal with this modern interconnected world. How does the law address these new problems? Congress is allowed “[t]o regulate Commerce with foreign Nations, and among the […]
Steven Nauman, Brown v. Plata: Renewing the Call to End Mandatory Minimum Sentencing
After more than twenty years of litigation, the United States Supreme Court finally determined whether California’s overcrowded prison system created a constitutional violation in Brown v. Plata. With prisons and jails across the country operating at well over 100% capacity, the Court concluded what advocates had been screaming for over a decade: prison overcrowding cannot […]
Mariko K. Shitama, Bringing Our Children Back From the Land of Nod: Why the Eighth Amendment Forbids Condemning Juveniles to Die in Prison for Accessorial Felony Murder
Over 2,589 individuals sit in prison, where they have been condemned to die for crimes they committed before their eighteenth birthday. At least a quarter of these individuals received this sentence for accessorial felony murder, or a crime in which they did not kill or intend to kill the victim. Beginning with Roper v. Simmons in […]
Charles Gardner Geyh, The Dimensions of Judicial Impartiality
Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when “we are all legal realists now,” perfect impartiality—the complete absence of bias or prejudice—is at most […]
F. Andrew Hessick & Jathan P. McLaughlin, Judicial Logrolling
In the federal judicial system, multiple judges hear cases on appeal. Although assigning cases to multiple judges provides a number of benefits, it also generates the potential for conflict. Because each judge has his own set of preferences and values, judges on appellate panels often disagree with each other. Judges currently resolve these disagreements by […]
Amanda Harris, Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence
After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and […]
Chad M. Oldfather, Joseph P. Bockhorst, Brian P. Dimmer, Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship
The increasing availability of digital versions of court documents, coupled with increases in the power and sophistication of computational methods of textual analysis, promises to enable both the creation of new avenues of scholarly inquiry and the refinement of old ones. This Article advances that project in three respects. First, it examines the potential for […]
Benjamin H. Barton, An Empirical Study of Supreme Court Justice Pre-Appointment Experience
This Article compares the years of experience that preceded each Justice‘s appointment to the United States Supreme Court. This Article seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from those of earlier Supreme Court Justices and to persuade the reader that this is harmful. To determine how the […]
Kathryn A. Kimball, Losing our Soul: Judicial Discretion in Sentencing Child Pornography Offenders
63 Fla. L. Rev. 1515 (2011)| | | | Child pornography offenders capitalize on the vulnerability of children and find pleasure in their victims’ humiliation. In United States v. Irey, the defendant sadistically raped, sodomized, and tortured more than fifty prepubescent girls and then broadcast this abuse across the Internet; yet the court characterized Irey […]
Jordan E. Pratt, An Open and Shut Case: Why (and How) The Eleventh Circuit Should Restrain the Government's Forum Closure Power
63 Fla. L. Rev. 1487 (2011)| | | |||| The Supreme Court has made it clear that when the government opens a nontraditional public forum, it retains the power to shut down the forum subsequently. But the Court has not specifically addressed whether this forum closure power knows any constitutional limitations. Several circuits, including the […]
Courtney Gaughan, Some More Watters, Please: The Dodd-Frank Act's New Preemption Standards Lighten Consumers' Wallets
63 Fla. L. Rev. 1459 (2011)| | | | The Dodd-Frank Wall Street Reform and Consumer Protection Act precipitates innumerable changes that will both directly and indirectly shape the future of the financial industry. This Note addresses two important subsets of the Dodd-Frank Act- Section 1044 and Section 1046-which vitiate the authority of federally chartered […]
Stewart E. Sterk and Kimberly J. Brunelle, Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases
63 Fla. L. Rev. 1139 (2011)| | | ARTICLE :: Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen […]
Jonathan Witmer-Rich, Interrogation and the Roberts Court
63 Fla. L. Rev. 1189 (2011)| | | ARTICLE :: Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts […]
Jim Gash, The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good
63 Fla. L. Rev. 525 (2011)| | | | INTRODUCTION :: It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple […]
Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of Chicago
63 Fla. L. Rev. 487 (2011)| | | | INTRODUCTION :: Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they […]
Andrew Blair-Stanek, Twombly is the Logical Extension of the Mathew v. Eldridge Test for Discovery
62 Fla. L. Rev. 1 (2010) | | | | ABSTRACT :: The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that […]
Gregory C. Sisk, Lifting the Blindfold From Lady Justice: Allowing Judges to See the Structure in the Judicial Code
62 Fla. L. Rev. 457 (2010) | | | | ABSTRACT :: Two centuries ago, Chief Justice John Marshall wrote that “[w]here the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived.” Yet for more than half a century, Congress has forbidden judges […]
Lawrence A. Cunningham, Traditional Versus Economic Analysis: Evidence from Cardozo and Posner Torts Opinions
62 Fla. L. Rev. 667 (2010) | | | | CASE COMMENT ::This Article contributes a new approach and evidence to the longstanding debate concerning the relative merits of traditional legal analysis compared to contemporary economic analysis of law. Proponents of economic analysis offer to show law’s efficiency as a descriptive matter and prescribe using […]
David A. Karp, Why Justice Thomas Should Speak at Oral Argument
61 Fla. L. Rev. 611 (2009) | | | | INTRODUCTION :: The oral argument before the United States Supreme Court in Morse v. Frederick began at 10:03 a.m. in typical fashion, like a high-speed game of chess. Forty-two seconds into the argument, Justice Anthony Kennedy cut off the advocate in mid-sentence. For the next […]
Akhil Reed Amar, Bush, Gore, Florida, and the Constitution
61 Fla. L. Rev. 945 (2009) | | | | INTRODUCTION :: Ten years ago this week, Dunwody Lecturer Cass Sunstein stood at this podium and offered some thoughts about the then-recent impeachment of President Clinton. Professor Sunstein titled his remarks Lessons from a Debacle: From Impeachment to Reform. Today I shall share with you […]
Erwin Chemerinsky, The Meaning of Bush v. Gore: Thoughts on Professor Amar's Analysis
| | | | INTRODUCTION :: It is tempting to blame the United States Supreme Court’s decision in Bush v. Gore for the evils the Bush Administration inflicted on the nation. If only Al Gore had become president, there would not have been the disastrous war in Iraq or the enormous deficit-spending to fund it, […]
Richard L. Hasen, Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar
61 Fla. L. Rev. 979 (2009) | | | | INTRODUCTION :: Akhil Amar begins his impressive Dunwody Lecture by questioning whether there “are any new things left to say about the Bush-Gore episode.” 1 It is a legitimate question to ask, given the torrent of scholarship since the 2000 Florida debacle. In some ways, […]
Ellen D. Katz, From Bush v. Gore to Namudno: A Response to Professor Amar
61 Fla. L. Rev. 991 (2009) | | | | INTRODUCTION :: In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, […]
Nelson Lund, Bush v. Gore at The Dawning of the Age of Obama
61 Fla. L. Rev. 1001 (2009) | | | | INTRODUCTION :: As Akhil Amar reminds us, hundreds of law professors denounced the Bush v. Gore majority as propagandists who suppressed the facts and used their power “to act as political partisans, not judges of a court of law”; as he also notes, a few […]
Michael S. Pardo, Second-Order Proof Rules
61 Fla. L. Rev. 1083 (2009) | | | | ABSTRACT :: Proof rules in law dictate when facts have been proven. They do so by specifying a level of proof such as by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt. The goals of the rules are […]
Jessica Gavrich, Constitutional Law: Judicial Oversights-Inconsistency in Supreme Court Establishment Clause Jurisprudence
58 Fla. L. Rev. 437 (2006) | | | | TEXT :: Texas State Capitol grounds contain a display of seventeen monuments and twenty- one historical markers. Amidst the monuments, Texas state officials erected a six-foot high and three and one-half foot wide structure inscribed with the Ten Commandments. The State accepted the monument from […]
Chad M. Oldfather, Remedying Judicial Inactivism: Opinions as Informational Regulation
58 Fla. L. Rev. 743 (2006) | | | | INTRODUCTION :: Concern about so-called “judicial activism” is rampant. Despite a lack of consensus regarding precisely what the term means, those wielding it have in mind judges who overstep the bounds of their role. “Activist” judges usurp the authority of the political branches, decide issues […]
Linda Kelly Hill, The Feminist Misspeak of Sexual Harassment
57 Fla. L. Rev. 133 (2005) | | | | INTRODUCTION :: Feminism is out of control. I recently attended an academic conference on domestic violence where, as usual, the speakers and the audience were virtually all women. As is to be expected, one woman or another lamented the lack of male interest in matters […]
Kelly Cahill Timmons, Accommodating Misconduct under the Americans with Disabilities Act
57 Fla. L. Rev. 187 (2005) | | | | INTRODUCTION :: An employer discharges an anesthesiologist with sleep apnea for falling asleep during surgical procedures. Another employer discharges a manager with post-traumatic stress disorder for an angry confrontation with a female co-worker during which he slapped her hand. A third employer discharges a grocery […]
Alan E. Garfield, Protecting Children from Speech
57 Fla. L. Rev. 565 (2005) | | | | INTRODUCTION :: The notion that children need to be sheltered from inappropriate speech long predates Janet Jackson’s “wardrobe malfunction” or Bono’s expletive-enhanced acceptance of a Golden Globe. Plato expressed concern about youths’ impressionable minds 2300 years ago, stressing that the tales the “young first hear […]
Heidi Kitrosser, Containing Unprotected Speech
57 Fla. L. Rev. 843 (2005) | | | | INTRODUCTION :: The Supreme Court long has deemed a few categories of speech so harmful and so lacking in value as to be unworthy of First Amendment protection. Under this approach, which this Article calls categorization doctrine, legislatures may regulate-even ban-unprotected speech categories in their […]