1,720,956 research outputs found
The Federal Rules of Constitutional Procedure
Get PDFJudicial review has distinct purposes, difficulties, and modalities, but there are no guideposts as to how these features ought to be addressed in procedural terms. The reason is a deep-seated, but largely unarticulated, assumption that constitutional litigation is simply governed by the same rules as other civil litigation in the federal courts. Yet the premise is fundamentally false. This Article draws new attention to rules and practices that have historically regulated constitutional cases and set them apart from the typical way all other cases make their way through the judicial system. These procedures include, among other things, the requirement to convene a three-judge federal district court, direct and mandatory appeal to the Supreme Court, and certiorari before judgment in the courts of appeals. When these specialized rules for constitutional litigation are viewed together, as they should be, it becomes evident that they are part of an important but uncharted area of federal procedural law: constitutional procedure.
This Article elaborates on the implications of a unified discourse on the federal rules of constitutional procedure and challenges some broader themes and popular assumptions about the process of judicial review. First, the Article demonstrates that the American model of judicial review does not by definition reject the use of specialized constitutional tribunals. Second, the Article shows that judicial review in the federal court system is not necessarily diffused and decentralized. Third, and relatedly, the Article uncovers the fact that percolation—allowing issues to work their way through the hierarchy of the federal judiciary—has never been a dominant value in constitutional cases as it is in other types of federal litigation. Finally, and perhaps most significantly, the Article makes it clear that our system of judicial review has never been fully committed to a single procedural framework and that much of constitutional procedure is dynamic and ever-changing. Hence, we must not take for granted the current procedural setting, and we should give attention to the impact of procedural design choices—and those who make these choices—on the outcome of constitutional cases and the legitimacy of judicial review
Procedural Categories
No full textProcedural law is organized around the assumption that different categories of rules apply to different categories of cases. We internalize this idea at an early stage of our legal education and learn to treat the categories of civil, criminal, and administrative procedure as natural and sacrosanct. Unwittingly we imprison our theorizing, our rulemaking, and our practice within their strict bounds. Yet the premise is fundamentally false. The system of procedure is far from static, and the categories are not fixed or unchanging. The various sets of rules reflect nothing more than our latent--but vitally important-- beliefs about the proper way to channel disputes into court. Illuminating the evolving nature of these categories, this Article sets out to identify for the first time the ways in which we shape the forms of procedure through the choices we make. The interaction of two competing principles have long pulled procedure in opposite directions. One principle, transsubstantivity, pushes the design of rules toward a generic and content-indifferent form. The other principle, substance-specificity, points toward the need to tailor procedural rules to a specific type of litigation. The tension between these fundamental organizing principles reflects a tacit understanding that it is neither possible to adopt a general procedure for all types of cases nor adjust the system to address every nuance. It is their synthesis that brings us to distinct sets of rules that apply uniformly within but not beyond a certain class of proceedings. Given the changing attitudes about the correct balance between the two principles, over time new procedural categories are created while others are dissolved. These insights embolden us to rethink the present-day categories and determine whether they are in need of revision. Ultimately, this Article creates a common ground for discussion among proceduralists across separate fields and takes us a step forward toward a unified theory of procedure
The Federal Rules of Constitutional Procedure
No full textJudicial review has distinct purposes, difficulties, and modalities, but there are no guideposts as to how these features ought to be addressed in procedural terms. The reason is a deep-seated, but largely unarticulated, assumption that constitutional litigation is simply governed by the same rules as other civil litigation in the federal courts. Yet the premise is fundamentally false. This Article draws new attention to rules and practices that have historically regulated constitutional cases and set them apart from the typical way all other cases make their way through the judicial system. These procedures include, among other things, the requirement to convene a three-judge federal district court, direct and mandatory appeal to the Supreme Court, and certiorari before judgment in the courts of appeals. When these specialized rules for constitutional litigation are viewed together, as they should be, it becomes evident that they are part of an important but uncharted area of federal procedural law: constitutional procedure.
This Article elaborates on the implications of a unified discourse on the federal rules of constitutional procedure and challenges some broader themes and popular assumptions about the process of judicial review. First, the Article demonstrates that the American model of judicial review does not by definition reject the use of specialized constitutional tribunals. Second, the Article shows that judicial review in the federal court system is not necessarily diffused and decentralized. Third, and relatedly, the Article uncovers the fact that percolation—allowing issues to work their way through the hierarchy of the federal judiciary—has never been a dominant value in constitutional cases as it is in other types of federal litigation. Finally, and perhaps most significantly, the Article makes it clear that our system of judicial review has never been fully committed to a single procedural framework and that much of constitutional procedure is dynamic and ever-changing. Hence, we must not take for granted the current procedural setting, and we should give attention to the impact of procedural design choices—and those who make these choices—on the outcome of constitutional cases and the legitimacy of judicial review
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Get PDF“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Get PDFWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
The Supreme Court and the People: Communicating Decisions to the Public
Get PDFAlthough the individual Justices of the Supreme Court frequently speak to the public, the Court as an entity holds fast to the purportedly ancient principle that courts should speak only through their official written opinions—the meaning of which is for others to figure out. Over the years, the Court’s decisions have become more complex, prolix, and fractured, making it difficult and time-consuming for anyone outside the professional elites to determine what the Court has held. Even journalists, who attempt to explain the Court’s decisions to the public, struggle to make sense of the Justices’ opinions under the pressures generated by new demands for instant news. As a result, the Court’s interpretations of the Constitution remain shrouded in mystery and beyond the ken of many. The Court’s approach is hard to square with its own teaching on the importance of an informed public to a democratic government, let alone with the Court’s central obligation to expound the Constitution in a way that is intelligible to the people.
We therefore argue that the Court’s communication practices are both unjustified and self-defeating. The underlying principle—that courts speak only through their written opinions—has never been categorically true. The early Court did not deliver written opinions at all, and Justices from the time of John Marshall have offered out-of-court defenses of their decisions. Some Justices have indeed recognized that the Court suffers when it fails to help the media understand and disseminate its decisions. But the Court has insistently maintained its aloofness. It has shown little concern for the changing needs of the press, and it has steadfastly rejected any suggestion that it should make its work more accessible to the people. Meanwhile, the constitutional courts of other countries—including Canada, Germany, and Israel—have risen to the challenge. These courts have adopted innovative procedures, such as press “lock-ups” and plain language opinion summaries, to ensure that their decisions are more intelligible, and they have not suffered the loss of dignity or respect that the Supreme Court apparently fears. These trends reflect a growing understanding that the legitimacy of constitutional courts depends on their ability to make their decisions comprehensible to other participants in the political process—the executive, the legislature, and especially the people. Our Supreme Court is not immune from the realities to which other constitutional courts have responded, and, like them, it must find a way to make its decisions more easily reported and better understood
Dispelling the Myths Behind First-author Citation Counts
Get PDFWe conducted a full-scale evaluative citation analysis study of scholars in the XML research field to explore just how different from each other author rankings resulting from different citation counting methods actually are, and to demonstrate the capability of emerging data and tools on the Web in supporting more realistic citation counting methods. Our results contest some common arguments for the continued
use of first-author citation counts in the evaluation of scholars, such as high correlations between author rankings by first-author citation counts and other citation
counting methods, and high costs of using more realistic citation counting methods that are not well-supported by the ISI databases. It is argued that increasingly available digital full text research papers make it possible for citation analysis studies to go beyond what the ISI databases have directly supported and to employ more
sophisticated methods
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