A View of the Legal Culture of the United States of America

The reference here to “states” actually understates the existence of separate legal systems as the District of Columbia, which is not a state, and five territories—American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands—are part of the United States legal system. See https://​www.​uscourts.​gov/​about-federal-courts/​court-role-and-structure. The special circumstances of the District of Columbia and the territories are not discussed in this chapter, but additional information can be found in “Developments in the Law” (2017) Vol. 130 Harvard Law Review 1617.

NationMaster, “Countries Compared,” available at https://​www.​nationmaster.​com/​country-info/​stats/​Geography/​Land-area/​Square-miles. The distances cited in the text are for the contiguous 48 states and do not include Alaska or Hawaii. According to NationMaster, the U.S. is the world’s third largest country.

Ibid.

“U.S. and World Population Clock,” United States Census Bureau, available at https://​www.​census.​gov/​popclock/​. The Census Bureau states that the U.S. is thus the world’s third most populous country.

“American Community Survey, 2019: ACS 1-Year Estimates Detailed Tables, People Reporting Multiple Ancestry, Table B04005,” United States Census Bureau, available at https://​data.​census.​gov/​cedsci/​table?​q=​ancestry&​t=​Ancestry&​tid=​ACSDT1Y2019.​B04005.

“Quick-Facts United States,” United States Census Bureau, available at https://​www.​census.​gov/​quickfacts/​fact/​table/​US/​PST045221. In a subsequent report in 2015, the Census Bureau identified 350 languages and dialects spoken in American homes. “Release Number CB15-185, November 3, 2015,” United Census Bureau, available at https://​web.​archive.​org/​web/​20151128131326/​https:​/​www.​census.​gov/​newsroom/​press-releases/​2015/​cb15-185.​html. For the latter report, the Census Bureau expanded its survey to include many more languages that are spoken on a smaller scale, including 150 Native American languages and dialects.

“Race and Ethnicity in the United States: 2010 Census and 2020 Census,” United States Census Bureau, available at https://​www.​census.​gov/​library/​visualizations/​interactive/​race-and-ethnicity-in-the-united-state-2010-and-2020-census.​html. “Decennial Census, 2020: DEC Redistricting Data (PL 94-171), Race, Table P1,” United States Census Bureau, available at https://​data.​census.​gov/​cedsci/​table?​q=​P.​L.​%20​94-171&​tid=​DECENNIALPL2020.​P1. “Decennial Census, 2020: DEC Redistricting Data (PL 94-171), Hispanic or Latino, and Not Hispanic or Latino by Race, Table P2,” United States Census Bureau, available at https://​data.​census.​gov/​cedsci/​table?​q=​P.​L.​%20​94-171&​tid=​DECENNIALPL2020.​P2. The cited percentages add up to more than 100%. The Census website can be consulted for an explanation.

“Table 3, 2019 Yearbook of Immigration Statistics,” Department of Homeland Security, available at https://​www.​dhs.​gov/​immigration-statistics/​yearbook/​2019/​table3.

Language is also closely connected with public education provided to children of immigrants. See, for example, Mead and Page (2019), Kooragayala (2019). Of course, immigrants face other difficulties, including access to health care. On this issue, see Price (2019) and Graefe et al. (2019).

“Americans Still Support English as Official Language,” Rasmussen Reports, April 2021, available at https://​www.​rasmussenreports​.​com/​public_​content/​politics/​general_​politics/​april_​2021/​americans_​still_​support_​english_​as_​official_​language.

“S1601 | Language Spoken at Home,” American Community Survey, 2019, available at https://​data.​census.​gov/​cedsci/​table?​q=​%22spanish%20​at%20​home%22&​tid=​ACSST1Y2019.​S1601&​hidePreview=​false.

“GDP (Current US$),” The World Bank, available at https://​data.​worldbank.​org/​indicator/​NY.​GDP.​MKTP.​CD?​most_​recent_​value_​desc=​true.

Fontenot et al. (2018).

“The Legatum Prosperity Index 2021,” Legatum Institute Foundation, available at https://​www.​prosperity.​com/​download_​file/​view_​inline/​4429.

“Gini Index Coefficient - Distribution of Family Income,” Central Intelligence Agency, available at https://​www.​cia.​gov/​the-world-factbook/​field/​gini-index-coefficient-distribution-of-family-income/​country-comparison. “The Gini Index is a summary measure of income inequality. The Gini coefficient incorporates the detailed shares data into a single statistic, which summarizes the dispersion of income across the entire income distribution. The Gini coefficient ranges from 0, indicating perfect equality (where everyone receives an equal share), to 1, perfect inequality (where only one recipient or group of recipients receives all the income). The Gini coefficient is based on the difference between the Lorenz curve (the observed cumulative income distribution) and the notion of a perfectly equal income distribution.” United States Census Bureau, available at https://​www.​census.​gov/​topics/​income-poverty/​income-inequality/​about/​metrics/​gini-index.​html.

There is an extensive body of literature on the origins and persistence of regional culture in the U.S. See, e.g., Chini and Gimpel (2010), Garreau (1981), Gastil (1975), Woodward (2011), Zelinski (1973).

For books about American history from a broader perspective, consider Foner (1998); Morgan (1993). For an accessible account of U.S. history from the first settlements to the early twentieth century, written by a non-American, see Churchill (1999). For an extended narrative and analysis of four great waves of immigration to the U.S. from England, Scotland, and Northern Ireland and the immigrants’ impact on American culture, both general and legal, see Fischer (1989). The four great waves of voluntary immigration are the immigration of the Puritans to Massachusetts (1629–1641), Cavaliers and indentured servants to tidewater Virginia (1642–1675), Quakers to Pennsylvania and the Delaware River basin (1675–1725), and English and Scots from the borderland region and Northern Ireland to the backwoods regions of the Shenandoah Valley of Virginia and North Carolina (1717–1775).

A volume that focuses on the development of law in the U.S. is Friedman (2019).

Arlidge (2017), Preface (“Those who opposed the actions of the British government started by claiming their rights as British subjects. This was not surprising—The Virginia Charter was drawn by English lawyers and all the early colonies insisted they remained British subjects.”); 76 (“Like other revolutionaries [Thomas Jefferson’s] initial claim was to his rights as an Englishman; independence was not his starting point.”).

Ibid. (referring to the Treaty of Paris, 3 September 1783, that concluded the American war for independence.) The first Article of the Treaty states: “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia to be free and Independent States…” https://​www.​ourdocuments.​gov/​doc.​php?​flash=​false&​doc=​6&​page=​transcript.

For the history of the common law in both Great Britain and the U.S., including the reception and recasting of English legal principles in America, see Langbein et al. (2009).

“Framers” is a term used to describe the leaders who debated the issues involved in establishing an independent American government and in drafting the crucial documents, such as the Declaration of Independence, the Federalist Papers, and the Constitution.

Gorsuch (2019).

The relationship between the national government and the states under vertical federalism is often described in terms such as “friction” and “counterbalance to power.” In Winters (2016), the author says that friction is often said to be undesirable because it is viewed through a “lens of adversity.” Professor Winters argues that friction is also beneficial since the strata of regulation made possible by vertical federalism create a space of foment for policy change and for democratic engagement and allows the national government and the states to strengthen each other by filling gaps. The counterbalance aspect of vertical federalism is discussed in Rotunda (2016), p. 307. Federalism has also been identified as an institutional feature in the structure of American government that helps protect against a “slide toward authoritarianism” as autonomous state officials are responsible for many sensitive functions, such as administration of elections, judging, policing, and prosecuting crimes. Landau et al. (2020), p. 1187.

Horizontal federalism has begun to attract an increasing amount of scholarly attention. For example, Gerken and Holtzblatt (2014), p. 88 offer a “trans-substantive” account of horizontal federalism by which the “ineluctable friction” arising from “spillovers” that arise when the effect of one state’s law intruding on another state is resolved by political as opposed to judicial means. In a similar vein, see Gerken (2016), p. 377. A systematic scrutiny of horizontal federalism is the goal of Erbsen (2008), p. 493.

Although Congress may not have authority to directly legislate in an area outside the enumerated powers, Congress can exert immense indirect influence on the states by way of a principle known as “conditional spending.” This principle means that the federal government pledges to disburse large sums of money to states provided the states enact laws consistent with Congressional wishes. Conditional spending explains why the states have uniform laws on seat belt use and on the minimum age to consume alcohol. In both matters, conformity with Congressional wishes was a pre-condition to the disbursement of federal funds.

Sutton (2018).

The Bill of Rights is the name given to the first ten Amendments to the Constitution.

Madison (1963), p. 319. Because the governments of the fifty states are likewise organized into three branches of government, the principles of separation of powers and checks and balances are also observed by the states.

The source of the cases and controversies requirement is Art. III, § 2 of the U.S. Constitution.

Standing is defined as “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right”. Black’s Law Dictionary (1979), p. 1625.

The American Bar Association provides access to ADR resources. See https://​www.​americanbar.​org/​topics/​dispute/​.

Congress has placed a limitation on the availability of diversity jurisdiction by imposing a threshold requirement that the amount in controversy must exceed $75,000. 28 U.S.C. § 1332. The federal courts have imposed a second limitation in the requirement of “complete diversity” among all plaintiffs and all defendants. These requirements evidence voluntary limitations on federal court authority not demanded by Art. III, § 2.

Federal courts have exclusive subject matter jurisdiction over a limited number of specified areas of law, such as cases involving admiralty, antitrust, bankruptcy, federal crimes, intellectual property (patent and copyright), securities regulation, disputes between States, disputes involving ambassadors, and other cases specified by federal statute.

As noted by Jordan (2012), pp. 1771, 1772, n. 1, state courts are also called upon to decide cases based on the law of other states and even based on international law.

Data pertaining to the U.S. District Courts can be found at the official U.S. Courts website and associated links, beginning with https://​www.​uscourts.​gov/​about-federal-courts/​court-role-and-structure. For the U.S. District Courts, an informative site is https://​www.​uscourts.​gov/​sites/​default/​files/​u.​s.​_​federal_​courts_​circuit_​map_​1.​pdf. This site contains a map showing the geographic jurisdictional boundaries of the U.S. District Courts and the federal Circuit Courts of Appeals. It also contains a chart showing the number of District Courts in each state. Data for the number of judgeships authorized in each federal judicial district are found at https://​www.​uscourts.​gov/​sites/​default/​files/​districtauth.​pdf.

In the U.S., the term “civil cases” includes all non-criminal cases, including cases brought against the national government and the governments of the states. This terminology differs from the practice in many countries where administrative cases are designated as a separate category.

The home page of the U.S. Court of International Trade is https://​www.​cit.​uscourts.​gov.

The home page of the U.S. Court of Federal Claims is http://​www.​uscfc.​uscourts.​gov.

Data pertaining to the U.S. Circuit Courts can be found at the official U.S. Courts website and associated links, beginning with https://​www.​uscourts.​gov/​about-federal-courts/​court-role-and-structure/​about-us-courts-appeals. Data for the number of judgeships authorized for each Circuit are found at https://​www.​uscourts.​gov/​sites/​default/​files/​appealsauth.​pdf. The home page for the Court of Appeals for the Federal Circuit is https://​www.​cafc.​uscourts.​gov/​the-court/​court-jurisdiction.

The homepage of the U.S. Supreme Court is https://​www.​supremecourt.​gov.

Habeas corpus (Latin for “You have the body”) is the “name given to a variety of writs (…) having for their object [the bringing of] a party before a court or judge (…) The primary function of the writ is to [obtain a] release from unlawful imprisonment.” Black’s Law Dictionary (1979), p. 638. The reader will encounter the writ of habeas corpus again in the discussion of the place of international law in the American legal system.

National Center for State Courts, available at https://​www.​courtstatistics.​org/​csp-stat-nav-cards-first-row/​csp-stat-overview.

See https://​www.​uscourts.​gov/​statistics-reports/​federal-judicial-caseload-statistics-2020. See also Burnham (2016).

“Court Statistics Project,” National Center for State Courts, available at http://​www.​courtstatistics.​org/​.

Current interactive appellate court data is provided by the National Center for State Courts as part of its Court Statistics Project. “State Court Organization,” National Center for State Courts, https://​www.​ncsc.​org/​sco. The number of judges cited in the text comes from a previous version of the Court Statistics Project website, which is no longer available. The current website is in an ongoing phase of development, and a number of states have not yet provided data. For that reason, the data in the text provide a reasonable way to appreciate the number of judges at each court level in the states.

Ibid.

A Record of the Proceedings is a transcript of all proceedings that occur in a trial court. “The official collection of all the trial proceedings, exhibits, orders, and word-for-word testimony that took place at trial.” Black’s Law Dictionary (1979), p. 1145.

Although precise formulations of the standard of review that binds an appellate court when reviewing a finding of fact differ from one jurisdiction to another, it is generally accurate to say that even if the appellate court disagrees with a finding of fact made by a judge in a bench trial, the finding made at trial can be reversed only if it can be deemed “clearly erroneous.” For a finding of fact made at trial by a jury, the appellate court’s authority is even more limited since an appellate court can reverse the finding “only if there is a complete absence of any substantial credible evidence to support it.” Burnham (2016), p. 170.

The discretionary nature of acceptance of appeals by the U.S. Supreme Court and the factors that would affect the Court’s decision to accept or refuse to accept an appeal are stated in Rules of the Supreme Court of the United States, Rule 10, available at https://​www.​supremecourt.​gov/​ctrules/​2019RulesoftheCo​urt.​pdf.

See https://​www.​supremecourt.​gov/​about/​courtatwork.​aspx. The Supreme Court also disposes of approximately 100 cases each year without plenary review. For comprehensive and granular data on the decisions of the Supreme Court, including number of opinions written by each justice, the voting alignment of the justices, extent of unanimity (or lack of unanimity) in decisions, average length of opinions, etc., see https://​harvardlawreview​.​org/​wp-content/​uploads/​2021/​11/​135-Harv.​-L.​-Rev.​-491.​pdf.

Annual Report of the Indiana Supreme Court, 2020–2021, available at https://​www.​in.​gov/​courts/​supreme/​files/​2021report.​pdf.​; statistical data also provided by Indiana Supreme Court Justice (Retired) Steven David (on file with the author).

For an excellent and concise discussion of the fundamental principles and implementing mechanisms of the adversary system, see Burnham (2016), pp. 80–85. The discussion in this section and the section on the jury system utilizes Burnham’s analytical framework.

Among many insightful conclusions is this, “the ostensible irrationalities and frustrating inefficiencies of the American legal system—and its virtues as well—flow from fundamental features of the American political system.” Kagan (2019), p. xi. The problem of preliminary theorizing can be linked to the psychology of decision-making, especially cognitive “short cuts” such as the availability heuristic (a tendency to form an opinion based on a limited amount of data, which is the case when a judge has heard only a small amount of evidence early in a trial), the anchoring heuristic (a tendency to hold fast to an initial impression rather than to admit an error of judgment), and the ordering heuristic (a tendency to emphasize new data that is consistent with the perceived trajectory of data previously received and to marginalize data that are inconsistent with that perceived trajectory). Each of these heuristics can lead a judge to engage in premature theorizing about the outcome of the case. The trial process itself, with alternating opening statements, alternating examination and cross-examination of witnesses, and alternating closing statements, is designed to counteract preliminary theorizing. See Burnham (2016), pp. 81–85.

The effectiveness of the adversary system as a truth-seeking process has critics as well as supporters. For selected criticisms of the adversary system and responses, see Burnham (2016), pp. 115–120. A skeptic of the “grip of the adversary system on the American legal mentality” is Posner (2016), p. 140, Posner notes the shortcomings with judicial passivity and concludes it is time to “bury the umpireal analogy.”

Article III, § 2 (right to a jury trial of “all Crimes”), Fifth Amendment (indictment by a grand jury), Sixth Amendment (right in criminal prosecutions to a “speedy and public trial by an impartial jury”), and Seventh Amendment (right to trial by jury in civil actions “at common law, where the value in controversy shall exceed twenty dollars.”). The 20-dollar amount remains unchanged since ratification of the first ten amendments in 1791.

In December of 2022, the Supreme Court considered the constitutionality of state laws that permit juries of fewer than 12 persons in cases where the defendant is accused of committing a serious crime. In Khorrami v. Arizona, 143 S. Ct. 22 (2022), Khorrami appealed his conviction by an eight-member jury. The Arizona Supreme Court denied Khorrami’s appeal, and he filed a writ of certiorari with the U.S. Supreme Court. Khorrami alleged that trial before a jury of 12 persons was guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution. A majority of the Supreme Court denied Khorrami’s writ. Justice Neil Gorsuch dissented from the denial. He would have held that the Constitution requires a 12-person jury and that a jury with fewer members “impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation’s courts.” Ibid. 23. Justice Gorsuch argues that a requirement of a 12-person jury in cases involving serious crimes is supported by an “original meaning” analysis of the Constitution, by many of the Supreme Court’s prior pronouncements, and by a functional analysis. On the latter, Justice Gorsuch cites studies that show smaller juries “are less likely to foster effective group deliberation” and are “less likely to include members of ‘minority groups,’ than 12-person juries,” which “deliberate longer, recall information better, and pay greater attention to dissenting voices.” Ibid. 26–27 Forty-four states require 12-person juries; 6 states permit smaller jury panels. A writ of certiorari is the means by which a party petitions the U.S. Supreme Court to accept an appeal. As noted in Sect. 2.5, the U.S. Supreme Court has discretion to accept or refuse to accept an appeal.

The qualification requirements to serve on a jury in the federal court system are listed at https://​www.​uscourts.​gov/​services-forms/​jury-service/​juror-qualifications. The listed requirements are quite basic. Juror qualifications in the states tend to resemble the federal model, but some states may add, delete, or rephrase qualifications. See, e.g., the qualifications for California, https://​www.​juryduty101.​com/​states/​california, and the qualifications for Cumberland County, Pennsylvania, https://​www.​ccpa.​net/​2395/​Qualifications-Exemption-from-Jury-Servi.

The jury system is also subject to several meaningful criticisms, including lack of competence to decide complex cases and overt and implicit biases. See Sherrod (2019), Hale (2016).

One of the features of English law carried over into American law, although with modification over time, is the distinction between suits “at law” and “in equity.” In the former, the plaintiff seeks money damages; in the latter, the plaintiff seeks a non-monetary remedy, often an order compelling the defendant to do something or to refrain from doing something. Although trial courts in the U.S. have the authority to award both forms of remedy, the distinction remains important as trial by jury is not available in suits in equity.

De Tocqueville, (reprint 1972), p. 282.

Ibid.

Ibid. p. 283.

Ibid. p. 284.

Ibid. p. 285.

For a concise discussion of the perceived benefits of a jury (e.g., diversity of life experiences, collective wisdom, civic participation, populist check on state power) and the stated criticisms (e.g., questionable competence in complex civil litigation, increased litigation cost, excessive size of jury awards), see Burnham (2016), pp. 85–91. For a study that rebuts the claim that juries are prone to awarding excessive amounts of money, see Vidmar (2003), p. 95.

Reliable empirical data about the frequency of jury nullification are not obtainable because jurors are under no obligation to provide a reason for their verdict, and a finding of “reasonable doubt” may have more than one motivation. In the absence of empirical data, we must rely on anecdotal evidence. The following is illustrative: “Even though most courts adamantly refuse to inform juries of their powers to reach an independent verdict, there clearly exists a large group of cases in which juries not infrequently reject the written law in favor of their own concepts of justice and equity. When the defendant has already suffered enough, when it would be unfair or against the public interest for the defendant to be convicted, when the jury disagrees with the law itself, when the prosecution or the arresting authorities have gone ‘too far’ in the single-minded quest to arrest and convict a particular defendant, when the punishments to be imposed are excessive or when the jury suspects that the charges have been brought for political reasons or to make an unfair example of the hapless defendant, the jury is likely to refuse to convict.” See Conrad (2013).

Perhaps the first and most famous case of jury nullification in the U.S. is the case of John Peter Zenger in 1735 in New York. In the face of indisputable evidence that Zenger had published political attacks against the colonial governor, considered libelous at the time, a jury acquitted him of the charges. The verdict was characterized as an act to safeguard liberty, baffle tyranny, and expose arbitrary power. See Knight (1996), p. 105. Cases involving acquittals for possession of small amounts of marijuana and assisting the suicide of people with terminal illnesses are often considered examples of jury nullification. An argument has been made that the acquittal of O.J. Simpson for the murders of his ex-wife and her friend is an example of jury nullification prompted by a history of racial discrimination by police in Los Angeles.

Hensler (2017), p. 349, provides a comprehensive history of the dispute resolution movement in the U.S. and shows that the ADR movement has had some success in changing views about the best way to resolve legal disputes.

American Bar Association and by the American Arbitration Association: https://​www.​adr.​org/​aaa-panel.

The increased use of ADR despite these risks and despite studies that disempowered people achieve better results in litigation as opposed to ADR is considered in Delgado (2017), p. 611. On traits such as ethnicity and gender on outcomes in ADR, Carver (2017), p. 891, concludes that such traits are largely irrelevant today, while Bachar and Hensler (2017), p. 817, after identifying 228 qualitative efforts to test empirically the hypothesis that mediation and arbitration create systematic differences in outcomes by gender, ethnicity, and socio-economic stratum, say the data are inconclusive and the issue requires more investigation.

The American Arbitration Association boasts 6,994,899 “cases administered” since 1926 and 43,205 “cases resolved” between 1 January and 31 January 2022. See https://​www.​adr.​org/​.

Rundown of House of Representatives Oversight Activities, “Statistics and Historical Comparison,” available at https://​www.​govtrack.​us/​congress/​bills/​statistics.

See also “Detailed Guide to the United States Code Content and Features,” Office of the Law Revision Counsel, House of Representatives, available at https://​uscode.​house.​gov/​detailed_​guide.​xhtml. This number excludes indexes, tables, and similar items.

Gorsuch (2019), pp. 129–144 discusses competing theories about the use of legislative history as a tool of statutory interpretation, including the positions taken by those who favor textualism, purposivism, and consequentialism.

The delegation of power from the legislative branch to the executive branch occurs in a similar fashion in the governments of the states. The governors of the states also have the power to issue executive orders similar to the President. During the COVID pandemic, because the President lacks the power to issue general mandates on such matters as mask wearing, the governors of the states implemented such mandates, to greater or lesser degrees from state to state, by way of gubernatorial executive orders. Because the principles underlying executive orders are similar for the states and the national government, this section will refer only to the national level of government.

There are fifteen federal agencies: The Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Justice, Labor, State, Interior, Treasury, Transportation, and Veterans Affairs.

Crews (2017).

“Code of Federal Regulations,” U.S. Government Publishing Office, available at https://​www.​govinfo.​gov/​app/​collection/​cfr.

Crews Jr. (2017).

The Emancipation Proclamation is identified as Proclamation 95, a number assigned by the Department of State. The National Archives maintains an On-Line-Exhibit of the Proclamation in President Lincoln’s handwriting as well as a transcription at https://​www.​archives.​gov/​exhibits/​featured-documents/​emancipation-proclamation.

For a list of total executive orders issued by each President from George Washington through the first 1.2 years of the Biden Administration, see “Executive Orders,” The American Presidency Project (University of California Santa Barbara), available at https://​www.​presidency.​ucsb.​edu/​statistics/​data/​executive-orders.

Carmines and Fowler (2017), p. 369 contend that increasingly polarized politics and approximately equal strength of the political parties resulting in gridlock in Congress have contributed to a shift in the balance of power between the executive and legislative branches and have encouraged Presidents to act unilaterally via executive orders.

Driesen (2019), p. 489.

White (2018), p. 1569.

Driesen (2018), p. 2013.

It is also possible for the Supreme Court to overrule an interpretation of the Constitution made by that court in the past. Because such reversals are uncommon, they are especially noteworthy. The Supreme Court’s reversal on 24 June 2022 of Roe v. Wade, which in 1973 established a constitutional right to abortion, is a recent example. See Dobbs v. Jackson Women’s Health Organization, 2022 WL 2276808, available at https://​www.​supremecourt.​gov/​opinions/​21pdf/​19-1392_​6j37.​pdf.

The process for amending the national constitution is fertile ground for scholarly inquiry. Should constitutional change be structured to be corrective or elaborative or to “dismember” by repudiation the essential characteristics of constitutions? In other words, does a constitution exist to express enduring principles or to serve as a fundamental expression of political policy of the day? These are questions considered in Albert (2018) p. 1; how does the constitutional amendment process spur social improvement but also hold fast in the protection of fundamental institutions is a problem analyzed by Young (2018), p. 149; because the constitutional amendment process is a “dead end,” courts have “rescued” a polity that would otherwise be in perpetual thrall to principles of the eighteenth century but at the expense of the constitutional rule of law is the position of Kay (2019), p. 887. Kay (2018) p. 243 also identifies processes by which the Constitution is amended outside the formal procedure set forth in Article V and contends that use of these alternative processes must balance the goals of preventing the Constitution from becoming unsuited to modern society with the “steadying function” the Constitution provides by establishing basic rules that govern the operation of the state.

One example is the decision of the Florida Supreme Court in 1973 to shift from the long-standing tort concept of contributory negligence to the concept of comparative fault. Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). No legislation was involved in this paradigm shift in the law. See Burnham (2016), Appendix A. It is not uncommon, however, for a legislature to later codify a common law rule.

The theoretical bases for, and proper scope of, federal common law are explained in Nelson (2015), p. 1 and in Volokh (2017), p. 1391.

This rule arises from a famous decision of the U.S. Supreme Court, Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Many scholarly articles about federal common law use Erie as the starting point for analysis.

The certification process is set forth in Rule 10 of the Rules of the Supreme Court of the United States, https://​www.​supremecourt.​gov/​ctrules/​2019RulesoftheCo​urt.​pdf.

See, for example, Rule 6-8 of the Supreme Court and Court of Appeals of Arkansas: “The Supreme Court may, in its discretion, answer questions of law certified to it by order of a federal court of the United States,” available https://​opinions.​arcourts.​gov/​ark/​cr/​en/​item/​1871.

The sources of law in the U.S. are discussed below in the section on Legal Method.

Perceptions of and views toward “judicial activism” vary widely. Green and Roiphe (2018–2019), p. 365 say “Judicial activism has no fixed meaning (…) beyond the predominant understanding that judicial activism is bad—a transgression of the judge’s role.” In addition, they argue that when “judicial activism” is considered in terms of a judge’s active use of discretion in engagement with a case instead of bias, activism is a good thing, perhaps especially for judges in trial courts; Grimes (2019), p. 37, notes that the term “judicial activism” is used whenever a judge votes in a way one dislikes. In other words, a judge rules “properly” when a ruling is favorable and engages in “activism” when a ruling is unfavorable to the person expressing judgment. Substantively, Grimes argues that structural reforms for the Supreme Court are necessary to correct ideological activism, including changes to control the Court’s docket and changes in the appointment process for Supreme Court Justices to permit regular turnover on the Court; Balkin (2019), p. 215 notes the intersection of personal interest and judicial ruling at different times by liberals and conservatives; Bolick (2019), p. 1 contends that rather than too much judicial activism, there is too little, especially in protecting individual rights from government transgression. For an analysis of the level of judicial activism appropriate for (newer) teleological constitutions versus the level appropriate for (older) structural constitutions, see Farinacci-Fernos (2018), p. 36.

Hessick (2018), p. 1, specially on pp. 4–5.

Ibid. p. 3 (Hessick supports deference to agency interpretations and proposes a solution to the constitutional objections by restructuring Chevron from an interpretation doctrine that limits judicial review to a remedial doctrine that restricts what courts can do about interpretations made by agencies); see also, Kagan (2018), p. 37 (noting that inconsistency in the Supreme Court’s application of the Chevron doctrine signals lurking problems and doubts about it); Dotan (2019), p. 761 (proposing the difference between “disagreement deference” and “avoidance deference” as key for understanding developments in administrative law). Gorsuch (2019), pp. 75–83 offers a vigorous rejection of a presumption of deference.

142 S. Ct. 2587 (2022). The case was decided by a vote of 6 to 3. Chief Justice Roberts authored the majority opinion. Justice Gorsuch wrote a concurring opinion, which Justice Alito joined. Justice Kagan wrote a dissenting opinion, which Justices Breyer and Sotomayor joined.

Ibid. 2608.

Ibid. 2616.

Ibid.

The Supreme Court Sabotages Efforts to Protect Public Health and Safety, New York Times, 1 July 2022, nytimes.​com/​2022/​07/​01/​opinion/​supreme-court-epa-ruling.​html. President Biden called the West Virginia decision “devastating” and part of a campaign “to strip away our right to breathe clean air.” Presidential Statement on Supreme Court Ruling on West Virginia v. EPA, 2022, Daily Comp. Pres. Docs., 2022 DCPD No. 202200577 (30 June 2022).

Jonathan Tobin, SCOTUS Deals Blow to Unaccountable, Unelected Administrative State, Newsweek, 5 July 2022, https://​www.​newsweek.​com/​scotus-deals-blow-unaccountable-unelected-administrative-state-opinion-1721246.

The New York Times opinion alleges that the ruling “threatens the ability of federal agencies to issue rules of any kind, including regulations that ensure the safety of food, medicines and other consumer products, that protect workers from injuries and that prevent financial panics.” New York Times, (n. 107).

Presidential Statement, (n. 106).

This number includes only the most recent editions. Prior editions are listed on the following ALI website. For a complete list of published volumes of Restatements of Law, see https://​www.​ali.​org/​media/​filer_​public/​60/​9d/​609dd7fb-b950-4571-a102-35cde6b170a0/​2021-restatement-and-principles-checklist.​pdf. The ALI homepage is https://​www.​ali.​org/​.

Weschler (1969), pp. 147 and 156.

Ibid.

The mission and projects of the Uniform Law Commission can be found at its homepage: https://​www.​uniformlaws.​org/​home.

See https://​www.​uniformlaws.​org/​acts/​overview.

Campos (2017), p. 377 cites an empirical study for the statement that “American law school professors are now publishing about 8000 law review articles per year.” The cited study is Harrison and Mashburn (2015), pp. 45 and 84.

See Drobak (2017), p. 21 (noting the contributions of both doctrinal and theoretical scholarship); Tiscione (2016), p. 385 (discussing the recursive relationship between theory and experience).

Judge Edwards is noted for commentary such as, “[S]ome of the worst effects of the problems that I see in legal education [are]: faculty hiring that is tilted in favor of ‘impractical’ scholars; inattention to written work, clinical training, and ethics; an increasing number of law teachers who hold the profession in disdain; a proliferation of legal scholarship that does not aim to serve the profession; and a growing inattention to the needs of the disadvantaged.” Quoted in Collins (2016), p. 637.

See, Piety (2017), p. 801.

Posner (1996). Within a discussion of the jurisprudential theories of H.L.A. Hart and Ronald Dworkin, Posner writes that he “ha[s] nothing against philosophical speculation. But one would like it to have some pay-off; something ought to turn on the answer to the question “What is law” if the question is to be worth asking by people who could use their time in other socially valuable ways. Nothing does turn on it. I go further: the central task of analytical jurisprudence is, or at least ought to be, not to answer the question “What is law” but to show that it should not be asked, because it only confuses matters.” Ibid. p. 3 (emphasis in the original).

See Posner (2016). Caustic criticisms of American academic legal scholarship can be found throughout this book. See, e.g., p. 33 (Academic “‘scholarship’ would strike most judges as frivolous, even narcissistic”) and p. 44 (“[A]t present, increasingly, academic legal scholarship, especially that practiced in the elite law journals, is inaccessible to outsiders, including I fear most judges.”).

See Chemerinsky and Fisk (1999), p. 667. Although the article’s scope is broad, it includes a response to Judge Edwards’ claims; also, Rubin (1988), p. 1835, analyzing and exemplifying theoretical scholarship.

See Petherbridge and Schwartz (2012), p. 995. Other citations to articles on both sides of the argument can be found in Posner (2016), pp. 26–29, nn. 21–27.

See Sunde (this volume).

Llewellyn (first published 1930, republished in 1996), p. 72.

Llewellyn (1950), pp. 395 and 401 (Canon Number Two).

An example of an analysis of “public values” in statutory interpretation theory is Eskridge (1989), p. 1007.

For a detailed discussion of Professor Llewellyn’s analysis of judicial approach to precedent, see the section on Application of Common Law below.

These four sources of law are listed together because they are treated as having the same level of authoritativeness. The authoritative equivalence of federal statutes and international treaties may be surprising to many readers. The importance of that equivalence is discussed in detail below in the section on Internationalization.

For an example of an expansive view of the federal government’s power under the Commerce Clause, see Wickard v. Filburn, 317 U.S. 111 (1942) (U.S. Supreme Court concluded that Congress could apply national quotas to wheat grown on a farmer’s own land for his own consumption, because the total of such local production and consumption could possibly affect the overall national goal of stabilizing prices). For an example of a more restricted view, see United States v. Lopez, 514 U.S. 549 (1995) (U.S. Supreme Court declined to expand the Commerce Clause and thereby effectively convert “congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”).

Obergefell v. Hodges, 576 U.S. 644 (2015). Also accessible at https://​www.​supremecourt.​gov/​opinions/​14pdf/​14-556_​3204.​pdf.

Statutory interpretation tools are analyzed by former Supreme Court Justice Antonin Scalia and Bryan A. Garner in Scalia and Garner (2012).

Llewellyn (1996), pp. 401–406. Llewellyn lists 28 canons of statutory interpretation and a corresponding 28 conflicting canons.

Ibid.

Ibid. p. 89.

The statute governing limited liability companies in Kansas is a representative example. The first sentence of this act, K.S.A. 2019, 17-76,1334, states: “The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this act.”

Leiter (2015), p. 1975 concludes that “[w]hat the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which the really rely, and it is central to Legal Realism to reform the law to make actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely.” (emphasis in the original); another contribution of Legal Realism is that “it stands for the conception of law as an ongoing institution distinguished by the difficult accommodation of three constitutive yet irresolvable tensions: power and reason, science and craft, and tradition and progress.” Dagan (2015) p. 1889, 1890. Additionally, “Realists insist that the main roles of doctrinal categories are to consolidate people’s expectations and to express law’s ideals with respect to distinct types of human interaction.” Ibid. p. 1891.

Delgado and Stefancic (2015), p. 304.

Lon L. Fuller connects the theory of legal realism with the dialectic of certainty and flexibility (see the section on the Ideal of Justice) by stating, “Legal certainty for the layman is not predictability of judicial decision, it is congruence between legal rules and the ways of life.” See Fuller (1934), p. 432 (emphasis in the original).

Posner (2016), p. 83.

Holmes (first published 1881, original 1963), p. 5.

Llewellyn (1996), p. 72.

Ibid. p. 73.

Ibid. p. 74.

Ibid. p. 180 (emphasis in the original).

Ibid. pp. 74–75 (emphasis in the original).

Pound (first published 1921, reprint 1963), p 2.

Llewellyn (1996), p. 82.

Knight (1996), p. 1.

De Tocqueville (1972), p. 278.

Ibid. p. 279.

Arlidge (2017), pp. 3–4.

Of the 45 people who have been elected President, 26 (57%) were lawyers. See Norman Gross, America’s Lawyer-Presidents: From the Law Office to the Oval Office (Northwestern University Press Gross 2004); “Joe Biden: The President,” The White House, available at https://​www.​whitehouse.​gov/​administration/​president-biden/​. Although there have been 46 presidencies, 45 persons have occupied the office since President Grover Cleveland served two non-consecutive terms.

In the 117th Congress (2021–2022), 173 Members of the U.S. House of Representatives (39.77%) have law degrees. The presence of lawyers is even more pronounced in the U.S. Senate as 57 of the 100 Senators (57%) have law degrees. See “Membership of the 117th Congress: A Profile,” Congressional Research Service, available at https://​crsreports.​congress.​gov/​product/​pdf/​R/​R46705.

ABA Model Rule of Professional Responsibility 6.1, available https://​www.​americanbar.​org/​groups/​professional_​responsibility/​publications/​model_​rules_​of_​professional_​conduct/​rule_​6_​1_​voluntary_​pro_​bono_​publico_​service/​. Following the ABA’s lead, states have enacted similar rules that encourage pro bono service. See Rule 6.1 of the Rules of Professional Conduct of New York available at https://​www.​nycourts.​gov/​ad3/​AGC/​Forms/​Rules/​Rules%20​of%20​Professional%20​Conduct%20​22NYCRR%20​Part%20​1200.​pdf. Indiana professional responsibility rules include a mandatory reporting requirement for pro bono work as part of the annual attorney registration process. Indiana Rules of Professional Responsibility, Rule 6.1, available at https://​www.​in.​gov/​judiciary/​rules/​prof_​conduct/​index.​html#_​Toc461714698.

https://​www.​aals.​org/​aals-newsroom/​2019-aals-law-student-pro-bono-hours-survey-report/​. As part of its role as regulator of legal education, the ABA encourages law schools to “promote opportunities for law student pro bono service that incorporate the priorities established in Model Rule 6.1.” See ABA Interpretation 303-3, available at https://​www.​americanbar.​org/​content/​dam/​aba/​administrative/​legal_​education_​and_​admissions_​to_​the_​bar/​standards/​2020-2021/​2020-21-aba-standards-and-rules-chapter3.​pdf. At the Indiana University McKinney School of Law (the author’s law school), students in the 2018–19 academic year contributed over 20,000 hours of pro bono service to legal, civic, and charitable organizations. Supporting statistics on file with the Office of the Dean, Indiana University McKinney School of Law.

See https://​www.​americanbar.​org/​groups/​legal_​education/​resources/​aba_​approved_​law_​schools/​.

See the Law School Admission Council website: https://​www.​lsac.​org/​choosing-law-school/​find-law-school/​non-aba-approved-law-schools. This number includes two law schools seeking accreditation.

https://www/americanbar.​org/​content/​dam/​aba/​administrative/​legal_​education_​and_​admissions_​to_​the_​bar/​statistics/​2021/​2021-509-enrollment-summary-report.​pdf. The term “J.D. program” refers to the course of study that leads to the Doctor of Jurisprudence degree in American law schools. The J.D. is the degree that enables a graduate to sit for a bar exam and upon passing engage in the practice of law. The J.D. degree is the first degree in law in the U.S. legal education system and for the great majority of law graduates is the only law-related degree they will obtain. The J.D. is a graduate level degree, since all J.D. students must have earned a bachelor’s degree at the undergraduate level. There is no undergraduate degree in law in the U.S., nor is there any required course of study leading to admission to law school. One hundred sixty-four U.S. law schools also offer the LL.M. (Legum Master) degree. To obtain an LL.M. degree, an American student must first obtain the J.D. degree. Few American students seek an LL.M. degree, since it is not seen as contributing to the skills used by practicing lawyers. Most students who obtain an LL.M. degree in the U.S. are foreign nationals. Such students must have a first degree in law, which for students from most countries that means an LL.B. degree. Fifty U.S. law schools also offer the S.J.D. (Doctor of Juridical Science) degree. The S.J.D. degree is the terminal degree in law in the U.S. and is directed at people who aspire to a career in legal academia. The S.J.D. may be seen as analogous to the Ph.D. degree. Historically, the Ph.D. degree in law has not been offered in the U.S. However, a small number of U.S. law schools now confer a Ph.D. degree in law. An LL.M. degree is generally a prerequisite for the S.J.D. degree. Students in S.J.D. programs in U.S. law schools include both Americans and foreign nationals. A fourth degree offered by a growing number of U.S. law schools is the M.J. (Master of Jurisprudence) degree. The M.J. program is designed for non-lawyers who are typically already engaged in a non-legal career. Completion of the M.J. program does not enable the graduate to sit for a bar exam. Instead, the program is intended to enable a graduate to appreciate the impact of law on the graduate’s non-legal employment. For complete data on post-J.D. degrees offered by U.S. law schools, see “LL.M. and Post-J.D. Degrees by School,” The American Bar Association, available at https://​www.​americanbar.​org/​groups/​legal_​education/​resources/​llm-degrees_​post_​j_​d_​non_​j_​d/​programs_​by_​category/​.

Standard 509 Information Reports, American Bar Association, https://​www.​abarequireddiscl​osures.​org/​Disclosure509.​aspx. For this report, the ABA considers “full-time” to include, in addition to full-time professors, law school administrators who also teach a law course.

“Law School Rankings,” Washington and Lee School of Law, available at https://​managementtools4​.​wlu.​edu/​LawJournals/​.

Ibid.

Although student-managed law reviews play an important role in legal scholarship and have defenders, there is also criticism. A critical engagement with the student-management model is Friedman (2018), p. 1267.

The following description of the student-edited law journal at the University of Washington Law School is illustrative: “Student scholarship through participation on law journal editorial boards is an important academic opportunity for law students. All journals are student-run, and each publishes articles by law professors and legal practitioners from across the country and around the world. Exceptional law student articles are also published in each journal. Being part of a law journal staff is an excellent way for law students to critically engage in current legal issues and to collaborate closely with other students to study the nuances of contemporary legal scholarship. The experience enhances writing, editing and citation-checking skills.” See https://​www.​law.​uw.​edu/​academics/​student-journals.

The ABA’s” states: “There is no single path that will prepare you for a legal education.” See https://​www.​americanbar.​org/​groups/​legal_​education/​resources/​pre_​law/​.

“Best Part-time Law Programs,” U.S. News & World Report, available at https://​www.​usnews.​com/​best-graduate-schools/​top-law-schools/​part-time-law-rankings.

Scholarship about the Socratic Method is as varied as are the means of its implementation. See Gersen (2017), p. 2320, a reflection on connections and contradictions between inherited pedagogical traditions, the desires and needs of students in a diverse law school, and aspirations for law graduates in a changing world; Abrams (2015), p. 562, appearing in a volume dedicated to innovations in legal teaching and to identifying unique dimensions of the Socratic Method that could be better leveraged to strengthen other reforms and innovations. For a comparative analysis that may be of special interest to readers of this handbook, see Ryan et al. (2013), p. 289, reporting on a case study of adapting Socratic Method to teach critical-thinking skills underemphasized in Chinese universities and group competency skills underemphasized in U.S. law schools.

“What is the Socratic Method that Law Schools Use?,” U.S. News & World Report, 4 April 2019, available at https://​www.​usnews.​com/​education/​best-graduate-schools/​top-law-schools/​articles/​2019-04-04/​what-is-the-socratic-method-and-why-do-law-schools-use-it.

Ibid.

Garrett, “Becoming Lawyers: The Role of the Socratic Method in Modern Law Schools,” available at https://​www.​law.​uchicago.​edu/​socratic-method.

The Indiana University McKinney School of Law is home to nine live-client clinics: the appellate clinic, the child advocacy law clinic, the civil law practice clinic, the criminal defense clinic, the disability law clinic, the health and human rights clinic, the immigration law clinic, the re-entry and community help clinic, and the wrongful conviction clinic. In each of these clinics, students perform meaningful work on behalf of real clients. For example, using DNA evidence, the wrongful conviction clinic in 2001, 2016, 2017, and 2020 obtained the release of five persons wrongfully incarcerated for crimes they did not commit.

Texas Higher Education Coordinating Board, Recognition of Accrediting Agencies, https://​www.​highered.​texas.​gov/​institutional-resources-programs/​private-postsecondary-institutions/​recognition-of-accrediting-agencies/​#:​~:​text=​Accreditation%20​is%20​the%20​recognition%20​that,achieve%20​credentials%20​for%20​professional%20​practice.

The ABA Standards of Rules and Procedures for Approval of Law Schools is available at http://​www.​americanbar.​org/​groups/​legal_​education/​resources/​standards. Although the ABA is the direct regulator of law schools in the U.S., the federal government exerts influence through the Department of Education’s power to “certify” bodies that regulate education. For more information on this indirect influence see https://​www.​americanbar.​org/​content/​dam/​aba/​publications/​misc/​legal_​eduction/​2016_​accreditation_​brochure_​final.​authcheckdam.​pdf.

The ABA’s Standards for the “Program of Legal Education” establish competency in “professional skills needed for competent and ethical participation as a member of the legal profession” as one of four educational objectives expected from ABA accredited law schools. Means for obtaining this objective include experiential courses, law clinics, field placements, and pro bono legal services. The professional skills objective is found in ABA Standards 301–304 and in accompanying Interpretations.

ABA Model Rules of Professional Conduct 505(b) states: “A lawyer who is not admitted to practice in [a] jurisdiction shall not (…) establish an office or other systematic and continuous presence in [the] jurisdiction for the practice of law; or hold out to the public or otherwise represent that the lawyer is admitted to practice in [the] jurisdiction.” “Jurisdiction” in the rule means a state. Rule 505 has been adopted by all of the states, see https://​www.​americanbar.​org/​groups/​professional_​responsibility/​publications/​model_​rules_​of_​professional_​conduct/​model_​rules_​of_​professional_​conduct_​table_​of_​contents/​.

Admission to the bar of this type is called admission on motion. The National Conference of Bar Examiners publishes a chart summarizing the availability of, and conditions required for, admission on motion in the states. See https://​reports.​ncbex.​org/​comp-guide/​charts/​chart-15/​.

For background information about the evolution of bar examination procedures in the U.S., including examination of state-specific laws, see Melli (1990), p. 3.

National Conference of Bar Examiners, available at http://​www.​ncbx.​org/​exams/​ube/​.

For a collection of essays on the purported benefits of the UBE, see “Essays on a Uniform Bar Examination,” (2009) Vol. 78 No. 1 The Bar Examiner p. 6.

See http://​www.​ncbex.​org/​exams/​ube/​.

Ibid. The National Conference of Bar Examiners lists 11 different policies concerning the UBE that states continue to establish on an independent basis.

“Report of the NYSBA Task Force on the New York Bar Examination” 5 March 2020, pp. 1 and 60, https:​nysba.​org/​app/​uploads/​2020/​03/​Report-of-the-Task-Force-on-the-New-York-Bar-Examination.​pdf. In addition to criticizing the UBE for failing to evaluate whether a person is knowledgeable about New York law, the Task Force alleges that the UBE contains a number of process defects. The Task Force issued a third report. This Report reasserts the process failings and the “law of nowhere” objections. See pp. 7, 12 and 122–23. The Task Force recommends that New York adopt its own bar examination and abandon the UBE. https://​nysba.​org/​app/​uploads/​2021/​03/​Task-Force-on-the-New-York-Bar-Examination-FINAL-approved-June-12-2021.​pdf. The New York State Bar House of Delegates on 12 June 2021 “overwhelmingly approved” the Task Force’s recommendation to voted overwhelmingly to replace the UBE with a bar examination developed by New York. See https://​news.​bloomberglaw.​com/​business-and-practice/​n-y-should-withdraw-from-uniform-bar-exam-state-bar-group-says.

“Response by the NCBE to the NYSBA Task Force Report,” National Conference of Bar Examiners, 9 July 2020, p. 5. https://​www.​ncbex.​org/​pdfviewer/​?​file=​%2Fdmsdocument%2F275.

This statement is true of all “Article III” judges in the federal system. Article III judges are judges appointed to the U.S. District Courts, the Circuit Courts of Appeals, and the U.S. Supreme Court. They are so-called because these judicial positions are authorized by Article III of the Constitution. Other federal judges, including federal magistrate judges and federal bankruptcy judges are called Article I judges because these positions are legislatively created. Article I judges are appointed by Article III judges; they are not subject to the Presidential nomination and Senate confirmation process. Article I judges also do not have lifetime appointment; instead, they are appointed for a term of eight years. All discussion of federal judges in this chapter refers to Article III judges only.

The nomination of Robert Bork in 1987 and the Senate’s vote to deny confirmation is cited as an example of politicization. The confirmation hearing for Justice Brett Kavanaugh in 2018 shows the height (or depth) of politicization. A simple internet search will produce scores of links to heated assertions of persons supporting or decrying his nomination and confirmation. The antics involved in that confirmation process prompted the Public Broadcasting System to ask: “Is the new hyper-partisan Supreme Court confirmation process ‘the new normal’?” See https://​www.​pbs.​org/​newhour/​nation/​is-the-hyper-partisan-supreme-court-confirmation-process-the-new-normal.

Aspects of the Supreme Court that have been identified as problematic and suggestions for reforms are considered in the following articles: Chemerinsky (2020), Whittington (2021), p. 363, Braver (2020), p. 2747, Doerfler and Moyn (2021), p. 1703; Epps and Sitaraman have authored a trilogy of articles about reforms designed to “save” the Supreme Court: (2019), p. 148; (2021a), p. 821; and (2021b). The Congressional Research Service has issued reports on reform of the number of justices on the court, “Court Packing: Legislative Control over the Size of the Supreme Court” CRS Report Legal Sidebar Dec. 14, 2020, and on reform of the length of a justice’s tenure on the court, “Proposals to Modify Supreme Court Justices’ Tenure: Legal Considerations” CRS Report March 24, 2021. Lastly, on April 9, 2021, President Biden by Executive Order 14023 created the Presidential Commission on the Supreme Court of the United States, https://​www.​govinfo.​gov/​content/​pkg/​DCPD-202100302/​pdf/​DCPD-202100302.​pdf. On December 7, 2021, The Commission issued its Final Report, https://​www.​whitehouse.​gov/​wp-content/​uploads/​2021/​12/​SCOTUS-Report-Final-12.​8.​21-1.​pdf. Early reviews and reactions to the Final Report include: https://​www.​abajournal.​com/​news/​article/​in-final-report-scotus-commission-takes-no-position-on-term-limits-or-expanding-the-supreme-court; https://​www.​yalejreg.​com/​nc/​the-presidential-commission-on-the-supreme-court/​; https://​www.​scotusblog.​com/​2021/​12/​presidential-court-commission-approves-final-report-identifying-disagreement-on-expansion/​; and https://​www.​npr.​org/​2021/​12/​06/​1061959400/​bidens-supreme-court-commission-releases-draft-report.

“Impeachment of Federal Judges,” The Federal Judicial Center, available at http://​www.​fjc.​gov/​history/​judges/​impeachments-federal-judges.

For example, at least four different methods are used to select trial court judges in the state courts of Indiana: partisan election, non-partisan election, merit selection (also called assisted gubernatorial selection), and a hybrid process. These four methods contain even further differentiations, such as procedures for filling a vacancy on the bench. Summary of Judicial Selection Methods in Indiana, Memorandum from Indiana Supreme Court Justice (Retired) Frank Sullivan, Jr., on file with the author. This situation exemplifies the diversity of judicial selection processes in the state court systems. See State of Indiana, Judicial Branch website, https://​www.​in.​gov/​courts/​selection/​. State of Indiana, Judicial Branch website: https://​www.​in.​gov/​judiciary/​5245.​htm.

National Center for State Courts Library eCollection website, https://​ncsc.​contentdm.​oclc.​org/​digital/​collection/​judicial/​id/​527/​rec/​1.

“Judicial Selection: An Interactive Map,” Brennan Center for Justice, https://​www.​brennancenter.​org/​judicial-selection-map. Fourteen other states use non-partisan election to select judges; ten states select judges by gubernatorial appointment; seven states select judges by partisan election; four states use a hybrid approach; and two states select judges by legislative appointment. These data are for appointment methods for state supreme court justices. Data for appointment methods for state intermediate appellate judges and for state trial court judges are available at the above website.

LL.M. programs in American law targeted at foreign national students are offered at 101 U.S. law schools. LLM Guide, available at https://​llm-guide.​com/​search/​result?​specs=​86&​page=​1. See also, American Bar Association (n. 149).

Agreement on Trade-Related Aspects of Intellectual Property Rights, 1869 UNTS 299: 33 ILM 1197 (1994).

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 UNTS 38: 21 UST 2517: 7 ILM 1046 (1968).

Restatement (Third) of Foreign Relations Law of the United States § 102 (American Law Institute 1987).

Ibid. 700.

Burnham (2016), p. 696.

Ibid. p. 698.

Before delving into the facts, analysis, and outcome of the Medellín case, it is appropriate to identify at least a few academic treatments of the larger issues involved with the place of international treaties in U.S. law, such as Hathaway et al. (2012), p. 51 (identifies three ways other than direct enforcement that the three branches of the federal government can strengthen enforcement of international law); Coyle (2015), p. 433 (advocating, in view of judicial retreat from international law, that the Congress and the President enact domestic statutes that incorporate international law rules); Parrish (2017), p. 209 (noting recent decisions by U.S. courts that belie the conventional narrative that the judiciary in the U.S. has disengaged from the broader world and instead signal an increasing receptiveness of a role for domestic courts that is consistent with foundational principles of international law; and Roberts (2011). p. 59 (noting that the increasing importance of domestic judicial opinions on the development and enforcement of international law, which creates a basis for a study of international comparative law).

Ibid.

Art. 36(1)(b), 21 U.S.T. at 101.

Medellín, 552 U.S. at 501. “Miranda rights” are the rights of a person detained by the police to be informed, prior to any police interrogation, that the person has the right to remain silent, the right to be informed that anything the person says can and will be used against the person in court, the right to an attorney, and if the person cannot afford to pay an attorney, the right to have one appointed at no charge. The U.S. Supreme Court established these rights, and the corresponding duties of police, in Miranda v. Arizona, 484 U.S. 436 (1966). The basis of the rights is the due process clause found in the Fifth and Fourteenth Amendments of the U.S. Constitution.

Medellín v. Cockrell, 2003 WL 25321243 (S.D. Texas 2003). Habeas corpus is defined in note 41.

2004 I.C.J. 12 (Judgment of 31 March).

Ibid. 502.

Ibid.

Ibid. 498–99.

Ibid. 509–11.

Ibid. 522.

Ibid. 523–24.

Ibid. 524.

Ibid.

Ibid. 525.

Ibid. 523.

Ibid.

Ibid. 519.

Ibid. 539 (Breyer, J., dissenting).

Breyer (2015), p. 215.

Ibid. Scholarly analysis of the Medellín decision is sparse. Two sources from the UK are Story (2021) and a review by Sandra Babcock of John Quigley, Foreigners on America’s Death Row: The Legal Combat over Access to Consul (Cambridge, 2018), see Babcock (2019).

Breyer (2015), p. 233.

Ibid. 235.

Ibid.