The Meaning of the Word “All” in Article III

William Fletcher - Ninth Circuit Court of Appeals

Samuel Adams, the Massachusetts patriot, was not enthusiastic about the newly proposed Constitution. He particularly did not like its introductory phrase, “We the People of the United States.” The phrase signaled a departure from the Articles of Confederation that the Constitution was to replace. The constituting authorities for the Articles of Confederation were the states, which had signed the Articles as states in the same way that sovereign countries would sign a treaty. By contrast, the constituting authority for the Constitution was the people. Adams wrote to his friend Richard Henry Lee of Virginia on December 3, 1787, “[A]s I enter the Building I stumble at the Threshold. I meet with a National Government, instead of a Federal Union of Sovereign States.”
I stumble at a smaller but nonetheless important threshold, this one in Article III of the Constitution. The threshold is the word “all,” which appears five times in… Read More »

Commercializing Patents

Ted Sichelman - University of San Diego Law School

About half, probably more, of all patented inventions in the United States are never commercially exploited. Many of these undeveloped inventions are commercially worthless ab initio, such as the anti-eating face mask, beer bottle mini-umbrella, and weed-cutting golf club.

Yet, for several reasons, the patent “underdevelopment” problem arguably applies to… Read More »

Evaluating Judges

Harris Hartz - Tenth Circuit Court of Appeals

Improving the quality of the judiciary is a noble cause. I welcome the participation of social scientists in the endeavor. But it is an open question whether social science can meaningfully contribute. Left to their own devices, social scientists are likely to produce work of dubious value. Perhaps judges can… Read More »

Rethinking The Federal Role in State Criminal Justice

Joseph L. Hoffman & Nancy J. King

It is time for Congress to end its fifty-year experiment in post hoc federal court enforcement of constitutional criminal procedure. By clinging to ineffectual federal habeas review of state criminal cases, Congress is pouring tax dollars down the drain and overlooking a more effective way to enforce the Constitution: helping… Read More »

Distinguishing Causal and Normative Questions in Empirical Studies of Judging

Patrick S. Shin - Suffolk University Law School

In this Essay, I raise a metatheoretical question concerning the relationship between what seem to be two distinct categories of projects that might be lumped together under the rubric of empirical study of judicial performance. One kind of empirical project aims broadly at developing a social-scientific theory of judging, or… Read More »

Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes

Colin Miller - The John Marshall Law School

You are sitting in an empty bar (in a town you’ve never before visited), drinking a Bacardi with a soft-spoken acquaintance you barely know.  After an hour, a third individual walks into the tavern and sits by himself, and you ask your acquaintance who the new man is.  “Be careful… Read More »

After the Fall: A New Framework To Regulate “Too Big to Fail” Nonbank Financial Institutions

Alison M. Hashmall

This Editorial summarizes my forthcoming Note, 85 N.Y.U. L. REV. (forthcoming June 2010), in which I assert that our current regulatory structure is suboptimal in its regulation of the systemic risk created by the failure of large, interconnected “nonbank” financial institutions (in general, a nonbank financial institution is any institution that… Read More »

Investigating Judicial Responses To Rules

Emily Sherwin - Cornell Law School

Much has been written about the process by which judges reach decisions in cases governed by the common law, but very little has been done to test this process empirically. Most empirical efforts have attempted to determine whether and to what extent judges’ political views influence their legal decisions. My… Read More »

The Impact of West Tankers on Parties’ Choice of a Seat of Arbitration

Daniel Rainer

In Allianz SpA v. West Tankers Inc., the European Court of Justice (ECJ) deemed antisuit injunctions, a tool that English courts commonly employ to enforce arbitration agreements, incompatible with EU law.  As a result, English courts can no longer issue an antisuit injunction preventing a party—who is either ignoring or contesting… Read More »

Diversity, Tenure, and Dissent

Joanna M. Shepherd - Emory Law School

The primary goal of the Duke Law Journal’s Symposium on Evaluating Judging, Judges, and Judicial Institutions was to bring together judges and academics researching judges. Conversations between these groups can be constructive on both sides. Judges may benefit from learning about studies that show the influences on judicial performance or… Read More »

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