Law Librarian Blog

Stefanie Lindquist: Sotomayor Is Not an Activist Judge

Stefanie Lindquist (Texas), co-author of Measuring Judicial Activism (Oxford UP, 2009)(with Frank Cross (Texas)), applied the political science tools and activism classifications used in her book to SCOTUS nominee Sonia Sotomayor's published majority opinions since January 2001. Marcia Coyle reports on her findings in Sotomayor Is No Activist Judge, Says Author (National Law Journal, June 8, 2009). Check out the story for details.

More interesting as we approach the confirmation hearings is Lindquist and Cross' monograph, Measuring Judicial Activism. The authors' work is guided theoretically by the notion that, at its core, the concept of activism involves concerns over the judiciary's institutional aggrandizement at the expense of the elected branches. An important corollary idea is that such efforts are particularly "activist" when they further the justices' own policy or ideological objectives. From these core theoretical ideas, the authors identify specific empirical manifestations that reflect the expansion of judicial power. In particular, the authors evaluate the Court's exercise of judicial review to invalidate legislative and executive action. Lindquist and Cross also analyze the justices' willingness to expand the Court's power by granting litigants increased access to the courts and overruling the Court's own precedents. In these contexts, the book considers the extent to which these actions are consistent with the justices' ideological predilections. [JH]

Open Access Marches On

Signatories to Open Access Statement

The statement is signed by the directors of the University Press of Florida, University of Akron Press, University Press of New England, Athabasca University Press, Wayne State University Press, University of Calgary Press, University of Michigan Press, Rockefeller University Press, Penn State University Press, and University of Massachusetts Press. Mike Rossner of Rockefeller University Press said that the press directors issued the statement as they wanted "to align ourselves with the stances taken by many universities -- by faculties and administrators -- on scholarly communication." Quoted in Inside Higher Ed.

Open Access News blog reported on June 4th that ten university press directors signed a position statement in support of free access to scientific, technical, and medical journal articles no later than twelve months after publication. The statement is further discussed on the Chronicle of Higher Education news blog. This announcement should remind you of the November 7, 2008 Durham Statement on Open Access to Legal Scholarship that was signed by many law library directors and called for elimination of printed law journals and adoption of a stable, open access model for law journals.

The Press Directors’ position statement is somewhat contrary to the position of the American Association of University Presses, their 112-member national organization. Executive Director Charles Lowery’s nine page PDF explains the AAUP position which is argued with the assumption that the reason academic law libraries support open access is to help meet shrinking budget lines. I do not think this is the only reason why academic library directors support open access, but the essay is worth reading to review different approaches to journal deselection choices such as combining a cost-per-page with a cost-per-use strategy.

AAUP filed a letter of support for the Fair Copyright in Research Works bill (H.R. 6845) which was reintroduced into Congress this past September (and seems to have died in the Judiciary Committee) prohibiting federal agencies from requiring fund recipients to give up their copyright in order to receive federal monies.

The American Association of Publishers also supports bills like H.R. 6845. At the site of their affiliate, Professional Scholarly Publishing, you can find key talking points surrounding the Fair Copyright in Research Works bill, and reposted statements from other organizations concerning retention of copyright in funded scientific works. The AAP also lobbied President Obama on the same. You can find their letter to him and Vice President Biden at this site.

At least one of the signatories to the position statement, Rockefeller University Press Director Mike Rossner, already makes Rockefeller journals available six months after publication. He has not found this practice of delayed free posting contrary to their business model. This position diffuses much of the discussion levied against open access. Hopefully, we will see more concrete support of an open access model that will result in more collections such as the Directory of Open Access Journals and BioMed Central, or direct access to journals via their own web sites.

To inform yourselves more fully on the benefits of open access, I highly recommend the SPARC pages on this issue. (VS)

LSN Announces New Jersey Death Penalty Symposium Materials Available

The text of the announcement:

In cooperation with Seton Hall Law School, the Stein Center for Law & Ethics - Fordham Law School, the New Jersey State Bar Association, and the Capital Punishment Committee of the New York City Bar Association, the Legal Scholarship Network (LSN) is pleased to announce the Legislation, Litigation, Reflection, and Repeal: The Legislative Repeal of Capital Punishment in New Jersey Online Proceedings. These proceedings are available to all users at no charge and contain abstracts of the meeting's papers with links to the full text within the SSRN eLibrary.

In 1982 the New Jersey Legislature restored the death penalty, lifting the Furman stay of executions. 228 times prosecutors sought death. 60 times juries agreed, 57 cases were reversed at some point. 8 remained on death row at the time of repeal. None were executed.

On December 17, 2007, Gov. Jon Corzine signed a bill repealing the death penalty and replacing it with life imprisonment without parole for capital murder.

On April 14, 2008, principal actors in the 25-year drama gathered at Seton Hall Law School. The symposium reflected on the judicial, legislative, and popular efforts to sustain, limit, and ultimately abandon capital punishment. Five former Justices of the New Jersey Supreme Court (two of them former Chief Justices, and three of them former Attorneys General), leaders of the legislative effort, and members of the Legislative Study Commission which recommended repeal spoke. Former prosecutors and public defenders recounted the struggle in the courtrooms and on appeal. Sen. Raymond J. Lesniak presented a resolution by the Legislature honoring Celeste Fitzgerald and New Jerseyans for Alternatives to the Death Penalty. Gov. Corzine expressed his pride and personal commitment on the issue, urging others to follow New Jersey’s lead.

The proceedings and an introductory essay have been published by the Seton Hall Legislative Journal.

You can browse all Legislation, Litigation, Reflection, and Repeal: The Legislative Repeal of Capital Punishment in New Jersey abstracts in the SSRN database by clicking on the following link. You may wish to bookmark it in your browser.

View papers: http://www.ssrn.com/link/Legis-Litigation-Reflect-Repeal.html

[MG]

Should SCOTUS Prohibit Ex Parte Blogging?

In Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy in an Internet Era, 61 Stan. L. Rev. 1535 (2009), Rachel Lee (Stanford Law School (2009), Prospective Law Clerk to the Honorable Susan P. Graber, United States Court of Appeals for the Ninth Circuit, 2009-2010), is sufficiently concerned about bloggers impacting the outcome of pending litigation to recommend that the Supreme Court should regulate ex parte blogging "despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues" and I might add, bring to daylight the discovery of errors.

Lee's Note is well worth reading. It is probably the first systematic analysis of the ethical implications of ex parte blogging and what its effects might be on different groups appearing before the Supreme Court. The Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications and concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Lee writes

Ideally, the members of the Court and their staff would refrain from reading any blog post relating to a pending case, whether written by attorneys involved in the case or not. If attorneys could rely on the Justices’ self-restraint, it would allow the profession to have the best of both worlds. Lawyers could speak out as they saw fit, enriching the public dialogue without danger of tainting the judicial process. Alternatively, if attorney conduct were regulated to prevent lawyers from engaging in ex parte blogging, while the Court also avoided the material, judicial self-regulation would provide another layer of protection for the impartiality of the Court’s decision-making process. However, the legal community is not in a position to bring about either scenario—the Court alone has the power to regulate itself.

Carolyn Elefant thinks any such SCOTUS rule is unnecessary. "I see no reason for regulation. Current ethics rules prohibit lawyers from trying to influence the judicial process so lawyers should not be blogging about ongoing cases for that reason. Moreover, because blogging is public, opponents have an opportunity to file comments in response." Quoting from Do We Need Ethics Rules on Ex Parte Blogging? on Legal Blog Watch.

OT: Remember crowdsourcing Kennedy v. Louisiana? [JH]

Link Rot in Court Opinions

"Citation format is not a sexy topic," writes Tina Ching (Reference Librarian, Seattle Univ. Law Library) in The Next Generation of Legal Citations: A Survey of Internet Citations in the Opinions of the Washington Supreme Court and Washington Appellate Courts, 1999-2005 [SSRN], 9 J. App. Prac. & Process 387 (2007) but web citations by courts and the long-term accessibility to the cited resources are important topics. Ching writes "the impermanence and ever-changing characteristics of the Internet present alarming issues that demand widespread changes to citation formats and also to the preservation and availability of cited materials."

In her survey of 14,209 Washington Supreme Court and Appellate Court opinions issued in 1999-2005, Ching found 132 Internet citations [Click on image, left, for types of Internet materials cited]. 64% of the URL citations did not lead to the cited materials. "Availability issues must be addressed so that researchers will be able to readily access government, legislative, and court materials on the Internet," writes Ching. "It is not enough that a clerk or judge keeps cited materials on file." Indeed it isn't. Ching recommends that "libraries should also be given the resources to maintain digital copies of online-only government publications, just as they currently maintain print materials, so that they can allow the public greater access to all materials that are now used to support case law."

Just like in the good old days when certain law libraries were designated as depositories for print copies of state supreme court briefs and records, Ching's research underscores the need for digital depositories to archive and make accessible online court-cited web resources at the state level.

Hat tip to Legal Research Plus for calling attention to Ching's very informative article. [JH]

New Study of Lawyer's Information Behavior

New data about lawyers' information behavior are presented in a recently posted Ph.D. thesis, by Dr. Stephann Makri: A Study of Lawyers' Information Behaviour Leading to the Development of Two Methods for Evaluating Electronic Resources (2008)(unpublished Ph.D. dissertation, University College London), available on Eprints. Here is the abstract:

In this thesis we examine the information behaviour displayed by a broad cross-section of academic and practicing lawyers and feed our findings into the development of the Information Behaviour (IB) methods - two novel methods for evaluating the functionality and usability of electronic resources. We captured lawyers’ information behaviour by conducting naturalistic observations, where we asked participants to think aloud whilst using existing resources to ‘find information required for their work.’ Lawyers’ information behaviours closely matched those observed in other disciplines by Ellis and others, serving to validate Ellis’s existing model in the legal domain. Our findings also extend Ellis’s model to include behaviours pertinent to legal information-seeking, broaden the scope of the model to cover information use (in addition to information-seeking) behaviours and enhance the potential analytical detail of the model through the identification of a range of behavioural ‘subtypes’ and levels at which behaviours can operate. The identified behaviours were used as the basis for developing two methods for evaluating electronic resources – the IB functionality method (which mainly involves examining whether and how information behaviours are currently, or might in future be, supported by an electronic resource) and the IB usability method (which involves setting users behaviour-focused tasks, asking them to think aloud whilst performing the tasks, and identifying usability issues from the think- aloud data). Finally the IB methods were themselves evaluated by stakeholders working for LexisNexis Butterworths – a large electronic legal resource development firm. Stakeholders were recorded using the methods and focus group and questionnaire data was collected, with the aim of ascertaining how usable, useful and learnable they considered the methods to be and how likely they would be to use them in future. Overall, findings were positive regarding both methods and useful suggestions for improving the methods were made.

[Robert Richards]

Resources from the Future of Forensic Sciences Symposium

In conjunction with the release of the Committee on Identifying the Needs of the Forensic Science Community (CINFSC) report "Strengthening Forensic Science in the United States: A Path Forward", the Cleveland-Marshall College of Law presented the first national symposium on the future of Forensic Science. 

The symposium brought together scientists, scholars, and practitioners to "discuss the CINFSC report's findings and recommendations, as well as share their views about how the forensic science disciplines can better advance the fundamental goals of the criminal justice system: to apprehend and punish those who commit crimes, while preventing the wrongful conviction of innocent persons".

To view the webcast of the symposium or for more information see:

• Introduction & Key Symposium Links
• Moderator & Panelists
• Research Databases
• Web Resources

Statutory Damages in Copyright Law: A Remedy in Need of Reform

In Statutory Damages in Copyright Law: A Remedy in Need of Reform [SSRN], Pamela Samuelson and Tara Wheatland (both at UC Berkeley School of Law) observe that "courts have failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive." From the abstract:

This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.

[JH]

Slave Trade Tribunals and the Constitutionality of International Courts

Hat tip to Mark Wojcik (John Marshall, Chicago) for calling attention to Eugene Kontrovich's (Northwestern) very interesting paper entitled The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals [SSRN] on International Law Prof Blog. Excerpted from the abstract:

Those interested in seeing the United States participate in [international] courts will find in the slave trade court episode not a constitutional straitjacket but rather a guide to tailoring their jurisdiction to avoid constitutional constraints. This Article unpacks the constitutional objections stated at the time and shows that some but not all international criminal courts are likely to be unconstitutional, while non-criminal international tribunals are far less problematic.

Aside from the precedential significance, the nineteenth century discussion of why joining such a court would be impermissible speaks directly to today's constitutional jurisprudence in modern terms. It provides surprisingly relevant guidance on questions like the permissibility of non-Article III courts; constitutional restraints on the Treaty Power; and the binding effect of judgments of international courts. Additionally, nearly every argument made today about American exceptionalism in international law and the conflict between domestic and international law was rehearsed nearly 200 years ago.

[JH]

The Madness of Legal Scholasticism

"American legal scholarship today is dead—totally dead, deader than at any time in the past thirty years. It is more dead, vastly and exponentially more dead, than critical legal studies was ever dead during its most dead period.

Nothing’s happening.

Now it’s true that we’re producing at a vastly faster rate than ever before. More papers. More conferences. More panels. More symposia. More blogs. And faster and faster too. More and faster. Over seven thousand American legal academics—and all of them cranking out those talks and papers as fast as possible. The speed of legal scholarship is just off the charts right now.

And yet, nothing’s happening.

How could this possibly be? The short answer is that, all around us, there is more, vastly more, of nothing happening than ever before. Now, this might seem odd, but upon reflection, it’s not. In fact, not at all. Indeed, if anything, the accelerated culture of legal scholarship has positive feedback effects on nothing happening: Who, after all, would have the time to notice the vacancy of the enterprise? More to the point perhaps, who would be foolish enough to point it out?

This would be me."

And that would be Pierre Schlag (Colorado) writing in his recently published Georgetown Law Journal article, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art). Mimicking the style of a raving lunatic sometimes, Schlag proceeds with a critique of mainstream legal scholarship in its traditional forms.

Reading the article (highly recommended) I wondered if anyone would take Schlag seriously. I guess I was not alone. In the first of two comments on the article, Judge Richard Posner wrote "When I first read Professor Schlag’s essay ... I thought it was crazy."  Posner continues in The State of Legal Scholarship Today: A Comment on Schlag

while preparing my Comment, I decided that the essay wasn’t crazy, but rather, as Claudius said of Hamlet’s ravings, “what he spake, though it lacked form a little, / Was not like madness.” It now seems to me a good essay (though there is much in it to disagree with), full of ingenious points often in the form of amusing riffs, though one must have patience in reading it.

See also Robin West's Comment (Mainstream legal scholarship does have an impact on both judicial decisions and substantive law. It doesn’t do so routinely. But it does enough of the time to justify the effort, if that is the scholar’s goal.)(Emphasis added).[JH]

Morris L. Cohen Fellowship in American Legal Bibliography & History

Do you (1) have a project involving legal history and bibliography, especially American legal history and bibliography; (2) need to use Harvard Law Library's special collections; and (3) seek money to go there to research? Then consider this newly created fellowship opportunity:

The Harvard Law School Library offers short-term fellowships to assist scholars who must travel to consult the Library’s special collections. Fellows are expected to visit the Library during the period from July 2009 through June 2010. Applications will be evaluated on the significance of the research and the project’s potential contribution to the advancement of knowledge as well as its creativity in drawing on the library’s holdings. The fellow can apply to use any of the Library’s special collections although preference will be given to proposals in American legal history and bibliography. Grants of up to $3,000 will be given on a competitive basis to assist in covering travel expenses, living expenses, photocopying, or other incidental research expenses. A fellowship is normally not granted to scholars who live within commuting distance of the Library.

The Fellowship was established in honor of Morris L. Cohen, Librarian of the Harvard Law School Library from 1971 until 1981. One of the country’s leading authorities in legal research and bibliography, Mr. Cohen’s Bibliography of Early American Law (1998) is the definitive work on the topic. Author of more than a dozen books, he is currently Professor of Law Emeritus at the Yale Law School.

The application deadline is April 30 and applicants will be notified of decisions by May 20. Click here for full details. Good luck! [RLS]

The Myth of the Generalist Judge

Do judges really practice the generalist ideal? According to Edward K. Cheng (Brooklyn Law School), the answer is not really. Cheng's very interesting article, The Myth of the Generalist Judge, 61 Stanford Law Review 519 (Dec. 2008), [SSRN}, empirically tests this question by examining opinion assignments in the federal courts of appeals from 1995-2005. It reveals that opinion specialization is a regular part of circuit court practice, and that a significant number of judges indeed specialize in specific subject areas.

Cheng proceeds by assessing the desirability of opinion specialization. Far from being a mere loophole in court operating procedures, opinion specialization turns out to be an important feature of judicial practice that could increase judicial expertise without incurring many of the costs commonly associated with specialized courts. [JH]

Secunda on Public Employee Blogging and the First Amendment

Paul M. Secunda (Marquette and former Workplace Prof Blog editor) has posted Blogging While (Publicly) Employed: Some First Amendment Implications to SSRN. In it, Secunda examines the predicament of private-sector employees who choose to blog about their workplaces and lays out the potential First Amendment free speech implications for public employees who engage in the same types of activities.

From the abstract:

Describing the legal protection for such public employee bloggers is an important project as many employers recently have ratcheted up their efforts to limit or ban employee blogging activities while blogging by employees simultaneously continues to expand. It should therefore not be surprising that the act of being fired for blogging about one's employer has even led to a term being coined: "dooced." So the specific question that this essay addresses is: do dooced employees have any First Amendment protection in the workplace? But the larger issue examined by implication ... is the continuing impact of technology on First Amendment free speech rights at the beginning of the 21st Century.

[JH]

New SSRN eJournal for Law Librarians

Reprinted with permission:

We are delighted to present the Legal Information & Technology eJournal to the law library community.  The archive already includes over 150 papers and is growing daily. Subscribers will soon start receiving email issues announcing works in progress and recent publications.  SSRN will issue a formal announcement soon, but we are pleased to provide a pre-launch viewing.

            

View Papers:
http://www.ssrn.com/link/Legal-Information-Technology.html

Subscribe:
http://hq.ssrn.com/jourInvite.cfm?link=Legal-Information-Technology
(If you do not already have an SSRN account, you may subscribe to the ejournal through your law school's Legal Scholarship Network Site License: http://www.ssrn.com/SiteLic_orgSubscribers.cfm?netid=201)

   

Journal Description:
http://www.ssrn.com/update/lsn/lsn_legal-info-tech.html

We thank the journal's founding sponsor MALLCO, the Mid-America Law Consortium for their generous support. Without MALLCO's backing, this would not have gotten off the ground so quickly. We also thank the advisory board for their encouragement and thoughtful ideas about direction and focus. And we thank Janet Sinder from LLJ, Mike Chiorazzi from LRSQ, Mark Engsberg from IJLI, and Mary Hotchkiss from Perspectives for their efforts to maximize availability of their journals' content on the new eJournal. One of our goals for the eJournal is to generate more articles for the professional literature.

We are excited about the journal on several fronts. We aim to make it the premier eJournal in the field by featuring the works of law librarians and other academics. Obtaining feedback on works in progress, developing the profession

We are in the process of inviting LLJ, LRSQ, IJLI, and Perspectives authors to post their works back to 2005 and welcome all other publications from that time frame fitting within the journal's subject matter. If you already have an SSRN account please upload your paper and classify it under the Legal Scholarship Network > LSN Subject Matter eJournals > Legal Information & Technology eJournal. 

If you do not have an SSRN account it is very easy to set one up and upload your paper for free at: http://www.ssrn.com

We have also attempted to identify papers previously posted to SSRN for inclusion.  In the short time frame we have been working, we will surely have missed some. If your paper is already on SSRN and we have not contacted you, please let us know and we can have it reclassified under the Legal Information & Technology eJournal.

We hope you enjoy the eJournal and welcome your feedback and suggestions.

Lee Peoples
Randy Diamond
Editors, Legal Information & Technology eJournal
[JJ]

Legal Information in the Law Clinic

Dr. Yolanda P. Jones, Assistant Director of Electronic Information Services at Villanova University School of Law, has published her doctoral dissertation, "Just the Facts Ma'am?" A Contextual Approach to the Legal Information Use Environment (2008). Here's the abstract:

The purpose of this study was to develop a conceptual framework for legal information behavior in the law clinic setting. A strong conceptual framework for legal information behavior can be used to improve legal information systems, instruction, and services. This study examined academic law school researchers from a Farmworker Legal Aid Clinic. Student teams were observed in the law clinic as they constructed legal theories and located legal materials. The conceptual framework for this study is Solomon's Discovering Information in Context, which allows for multiple perspectives in gaining a rich, “round” view of information behavior, and puts forth Activity Theory as a possible tool for exploring how people discover information. Activity Theory was used to examine the systems, users, and the context of information use in the law clinic. Data collection involved naturalistic observations, “think-alouds,” post-observation interviews and examination of client file documents. Analyses involved situating the activities of the clinic historically, mapping the activities observed in the clinic within a “web of activities” using the Activity Theory matrix, looking for “breakdown situations,” and considering other information behavior theories and models which might “fit” the activities observed within the clinic. The findings showed the deeply collaborative nature of research in the law clinic, and how various sources of memory were used (individual, organizational, group, and artifacts such as books and databases).  Information behavior models, if seen in terms of memory, each contribute useful perspectives on information behavior. While many information behavior models rely on an individual view of memory and knowledge, it is argued that models which take into account social and collaborative aspects of memory and behavior are more robust and were more useful in accounting for the behaviors observed in the clinic. In the law clinic, information behavior was embedded in a context of collaboration which had an impact, either directly or indirectly, on almost every aspect of information seeking and use. Thinking of information behavior and memory tools “in the round” allows you to consider the people, their work, the systems they use, and the environment in which they use them as they engage in information behavior.

[Robert Richards]

Does Grammar Matter for Lawyers, Judges and Law Students?

Does it matter that the editors of thirty-three law journals, including those at Yale and Michigan, think that there is a “passive tense”? Does it matter that the United States Courts of Appeals for the Sixth and Eleventh Circuits think that there is a “passive mood”? Does it matter that the editors of fourteen law reviews think that there is a “subjunctive tense”? Does it matter that the United States Court of Appeals for the District of Columbia Circuit thinks that there is a “subjunctive voice”? There is, in fact, no “passive tense” or “passive mood.” The passive is a voice. There is no “subjunctive voice” or “subjunctive tense.” The subjunctive is a mood. See Robert C. Farrell (Quinnipiac), Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions.

Hat tip to James B. Levy (Nova), Legal Writing Prof Blog. [JH]

Nelson on Judicial Review of Legislative Purpose

Caleb Nelson's (Virginia) article, Judicial Review of Legislative Purpose, 83 New York Law Review 1784 (Dec, 2008) [SSRN], calls attention to bygone norms of judicial review, which often prevented courts from investigating the motivations behind statutes even when the statutes’ constitutionality depended upon those motivations. The Article proceeds to describe changes over time in the practice of judicial review.

From the article's conclusion:

Even if one believes (as I do) that courts should care about the original understanding of the Constitution and that settled historical practices can help to “fix” the Constitution’s meaning on ambiguous points, the Constitution does not reach or resolve many questions about the practice of judicial review. This does not mean that the practice is a usurpation: while the Constitution might not compel judicial review, the Constitution does not rule it out either, and many members of the founding generation anticipated in general terms that the judiciary would refuse to apply statutory provisions that judges determined to be unconstitutional. According to the most sophisticated recent scholarship on the relevant history, however, judicial review did not grow out of the Constitution itself.

Instead, it reflected the application to our constitutional system of preexisting principles—principles about the courts’ role in enforcing limits on the authority that had been delegated to corporate entities, or more general principles “about the hierarchy of law and the duty of judges to decide in accord with law.” On this account, the practice of judicial review stems from a species of general jurisprudence rather than from the Constitution—which makes it quite unlikely that the Constitution regulates the details of that practice (such as the conditions under which courts reviewing a statute’s constitutionality can look behind the statute’s stated purposes and impute impermissible motivations to the enacting legislature). Indeed, even if one believes that the courts’ authority to conduct judicial review stems entirely from the Constitution rather than from the application to our constitutional system of uncodified principles, one still cannot plausibly read the Constitution to supply many details about the practice of judicial review. No one thinks, for instance, that the Constitution codifies the rules of evidence that courts must use in cases implicating a statute’s constitutionality; instead of being restricted to the evidentiary sources of 1788, modern courts conducting judicial review can use modern rules of evidence. There is little more reason to think that the Constitution codifies the practices of 1788 about judicial inquiries into legislative purpose. In fact, one of the primary differences between those practices and their modern counterparts can be cast in terms of evidence: modern courts are willing to impute impermissible motivations to the legislature on the basis of materials that founding-era courts would not have considered.

An excellent article for an ALR course's reading list. [JH]

Update on: The Brain as Public Entity

The MacArthur Foundation Law and Neuroscience Project, which Joe reported on last fall, see The Brain as Public Entity, Sept. 26, 2008, has issued results of interesting new research on cognitive processing of legal information in the criminal context, specifically, on the parts of the brain that judges and jurors employ when determining criminal responsibility and proper punishment.  Joshua W. Buckholtz et al., “The Neural Correlates of Third-Party Punishment,” 60 Neuron 930 (2008)(abstract free of charge, full text available to subscribers). The researchers found that these tasks engaged three brain regions associated with the processing of emotions, as well as one region associated with analytical reasoning. They also found that the region linked to analytical reasoning in their study has been linked in other studies to “punishing unfair economic behavior in two-party interactions,” suggesting that the same brain func
tion may be at work in the determination of legal and economic norms.  Robert Lee Hotz discusses the research, quotes from interviews with the authors, and provides links to related sources, in his recent article: “The Brain, Your Honor, Will Take the Witness Stand,” Wall St. J., Jan. 16, 2009, at A7. [Robert Richards]

Solomon on Civil Recourse Theory and Tort Law

Jason Solomon (Georgia) has posted Equal Accountability Through Tort Law on SSRN.  Here's the abstract:

The traditional conception of tort law as individual justice has been revived in recent years, particularly through the idea of "corrective justice." But as corrective justice has had problems gaining traction among scholars and judges, a promising challenger in the individual-justice camp has emerged: civil recourse theory, which sees tort law as a means for empowering individuals to seek redress against those who have wronged them. Civil recourse theory has an advantage over corrective justice in its fit with the structure, concepts and doctrine of American tort law. But it seems to lack a morally appealing norm at its core. Indeed, critics such as John Finnis have charged that it seems to smack of vengeance, and treat such an impulse as morally worthy. Though the civil recourse theorists have pointed to reasons justifying a law of civil recourse, they have thus far stopped short of providing a robust normative justification. This paper seeks to provide such a normative justification. I do so by breaking down the normative case for civil recourse into three parts: first, in cases of accidental harm, why is the victim entitled to feel resentful towards the defendant such that second, she is morally justified in "acting against" the defendant in some fashion; and third, the victim is given access to a state-sponsored mechanism (tort law) for doing so. Though my focus is on civil-recourse theory, I think this discussion can illuminate the normative appeal of a broader set of individual-justice theories of tort law. I also aim to provide a response to those who would eliminate tort law through preemption, or significantly curtail it through "reform" efforts. In response to the question "What is tort law for?," my answer is: helping constitute a community of equals who are answerable to one another, and expected to treat one another with equal respect. Whether or not such an institution is worth having, in light of its costs and effect on other social goals, is for Congress, state legislatures, and citizens to decide. But that is what is at stake.

[JH]

Judicial Compensation in the Early Republic

James Pfander (Northwestern) has posted Judicial Compensation and the Definition of Judicial Power in the Early Republic, 107 Mich L. Rev. ___ (2008) on SSRN. The article explores the role of judicial compensation in shaping the familiar jurisdictional landmarks of the early Republic. It shows that Congress chose a salary-based compensation scheme, and took early steps to rule out fee payments to federal judges. The Article also demonstrates that the judicial salary was understood to include compensation for official travel, a fact that sheds important new light on the Supreme Court Justices' hostility to the burdens, and expense, of riding the circuit. The Article suggests that financial self-interest may have played a role in shaping the early definition of judicial power and the willingness of the Justices to take on extrajudicial assignments. Concluding remarks focus on judicial independence and the way Article III frames debate over judicial compensation and workload.

Hat tip to Rory Ryan (Baylor), Civil Procedure Prof Blog. [JH]