Do Briefs Matter?

I suspect many lawyers have had the experience of briefing and arguing a case before an appellate court, and then receiving an opinion back from the court that seems like it was written for another case, with the court simply not engaging with the parties’ major arguments.  Although anecdotes along these lines abound, no rigorous studies are available to show us how common such judicial nonresponsiveness is.

Part of the problem is that researchers would have to read a large volume of briefs and opinions, and then painstakingly sort out exactly which arguments were addressed and how thoroughly.  Not only would the work be tedious and time-consuming, but it would also be subject to reliability concerns in light of the subjectivity in deciding whether and how satisfactorily a court has responded to an argument.

Chad Oldfather, Joseph Bockhorst, and Brian Dimmer ’09 think they have a solution to these difficulties: automated research that uses computers to compare a large number of briefs and opinions quickly and objectively.  They describe their project in a new paper on SSRN entitled “Judicial Inaction in Action? Toward a Measure of Judicial Responsiveness.”  

Continue ReadingDo Briefs Matter?

The Beginning of the End for Life Without Parole?

That question is the title of a new paper I’ve just uploaded to SSRN. Here is the abstract:

This essay introduces a new issue of the Federal Sentencing Reporter that is devoted to different aspects of the sentence of life without parole. An important question raised by many of the articles is whether LWOP, after two decades of explosive growth, is entering a period of decline. For instance, the Supreme Court declared LWOP unconstitutional for most juvenile offenders in May 2010, possibly inaugurating an era of more meaningful constitutional limitations on very long sentences. Additionally, many cash-strapped states have been developing new early-release programs in order to reduce corrections budgets, some of which hold out hope even for LWOP inmates. This essay considers the likelihood that these and other recent developments will contribute to a decline in LWOP. In the end, none of the developments portend dramatic changes, at least regarding LWOP for adult offenders, although it is possible that LWOP will undergo a period of slow, long-term decline, much as has occurred with the death penalty. After laying out this perspective, the essay then considers whether the United States ought to welcome such a period of decline.

Continue ReadingThe Beginning of the End for Life Without Parole?

A New Approach to Interpreting the Wisconsin Constitution?

In the most recent edition of the Yale Law Journal, Professor Abbe Gluck observes a phenomenon unique to state supreme courts: precedents that bind courts’ interpretive methods. At the U.S. Supreme Court, justices constantly argue about the proper method for interpreting contractual, regulatory, statutory, and constitutional texts. Prof. Gluck observes that in some state courts, including Wisconsin, a single case definitely sets the method by which future judges will interpret legal texts.

The Wisconsin case she refers to is, of course, State ex rel. Kalal v. Dane County Circuit Court (2004), which set a method by which the court would interpret statutes. That method focuses first on the text of the statute, and circumscribes the use of legislative history and other secondary sources.

Another Wisconsin case Prof. Gluck could mention is Buse v. Smith (1976), decided nearly thirty years before Kalal. 

Continue ReadingA New Approach to Interpreting the Wisconsin Constitution?