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Abstract:
Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges - father, babysitter, grandma (a liberal jurist, of course), etc. - who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to demonstrate the following: * We all regularly use the basic tools and modes of statutory interpretation; * When we interpret pronouncements in real life, we resort to a mix of textualist, literalist, purposivist, legal process, precedent, and other techniques and sources; * Although the various tools seem perfectly reasonable individually, in the aggregate, they can lead to ridiculous results; * Even when we agree that the ultimate results are ridiculous, it is sometimes hard to pinpoint exactly where the error occurred; * The legislature can sometimes clean up after bad judicial opinions, but it often takes a long time.

Abstract:
We analyze thirty jury selections in the District of Connecticut for evidence that juries are relatively undereducated compared to the venires from which they are chosen. Contrary to popular lay and scholarly belief, neither judges nor attorneys appear to systematically excuse or exclude relatively well-educated potential jurors.

We conclude that juries are not relatively undereducated compared to venires. Further, the mean education level of juries in our sample is actually higher than the mean of members of society (as represented by U.S. Census data for the State of Connecticut).

Finally, we conclude that (1) further studies should be performed in jurisdictions with different selection procedures; and (2) it is unnecessary for courts to adopt radical proposals designed to ensure that juries are not undereducated relative to venires (or to society as a whole). This study reinforces our belief that any policy analysis should include empirical study and attention to practical literature, both of which have been missing in the scholarly debate over education levels of juries.

Juries, jurors, education, empirics, empirical

Abstract:
In recent years, scholars have engaged the issue of systematic unpublication of judicial opinions in the appellate courts and the problems its poses for judicial accountability and transparency. And not just scholars.

Interestingly, amid all of the talk about unpublication on the appellate courts, the practice of unpublication in the district courts has gone essentially unnoticed.

In this Article, I address the issue of unpublication in the district courts from a normative perspective for the first time. I argue that unpublication in the district court context raises an even broader set of concerns than unpublication in the appellate context. My argument rests on two fundamental points. First, district courts play a unique institutional role in our system of adjudication, one that gives district judges exceptional power to make and shape the law. Indeed, from the perspective of a realist, district judges have even greater control over the law than do their appellate counterparts, and yet they often operate free from appellate oversight and public scrutiny. Second, in contrast to the appellate context, where even unpublished opinions are usually available for public review, in the district court context, unpublished opinions effectively disappear from the public's view. Thus, district courts, the central location of lawmaking in our system, are rendered opaque, and our district judges unaccountable.

The consequences of this opacity and unaccountability are serious. From the perspective of the legal academic, unpublication erects serious epistemological barriers; we cannot accurately describe, let alone assess, the law as it really is. This, in turn, has led to an unduly formalistic and distorted account of the law and of the district courts for ourselves and our students. But the epistemological problems are not merely the concern of those of us who study and critique judicial behavior for a living; there is a deep and fundamental problem with a system that creates a body of law and norms that are unknowable to the people they govern. And, from a practical standpoint, unpublication by district courts deprives district and appellate judges, attorneys, and those who are governed by district courts, of information about the law, distorting its development. Additionally, it subtly encourages judges to treat some cases with less care than with others, and allows them to make unprincipled rulings.

courts, district courts, judges, district judges, unpublication, non-publication, unpublished, opinions, transparency, privatization

Abstract:
This Book Review reviews Symeon Symeonides's recent book, The American Choice-of-Law Revolution: Past, Present and Future. I conclude that the book is required reading in the field and that it pushes the law in the right direction in significant ways. However, I suggest that it falls short in its effort to tell the full story of the Revolution, for two reasons. First, the data set is limited to published opinions. Second, we cannot evaluate the Revolution simply by looking at judicial opinions. I argue that scholarship and practice in Conflicts must reengage with one another, and offer a framework for further research.

choice of law, conflicts, symeonides, book review, unpublished opinions

Abstract:
States have adopted several different regimes of recognition for same-sex couples. Five states allow same-sex couples to marry; several others recognize marriage-like partnerships (usually called civil unions or domestic partnerships), which provide all or nearly all of the substantive rights and responsibilities associated with marriage; still others offer marriage-lite partnerships (sometimes called domestic partnerships or reciprocal rights arrangements), which provide a small subset of the rights and responsibilities associated with marriage; and, of course, others offer no recognition at all.

What happens when these regimes of recognition collide? For example, what happens when a couple marries in Massachusetts and then moves to a marriage-like state, like California. Will, and should, California recognize the Massachusetts marriage as a marriage under California law, or should it refuse to recognize it entirely, or should it automatically convert the relationship to California’s marriage-like alternative?

Concerning these issues, which I call the Marriage/Marriage-Like/Marriage-Lite conflicts, the law is deeply unsettled. Further, until now, scholars have focused nearly exclusively on conflicts that arise between states that recognize same-sex marriage and those that offer them no recognition at all, ignoring the Marriage/Marriage-Like/Marriage-Lite conflicts; and the approaches they have offered do not translate to this new context. This Article fills this lacuna and offers a framework for resolving the Marriage/Marriage-Like/Marriage-Lite conflicts.

Same-sex marriage, interstate recognition