Browsing by Author "Cooper, Jeffrey O."
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Item Citability and the Nature of Precedent in the Court of Appeals: a Response to Dean Robel(2002) Cooper, Jeffrey O.In Part I of this essay, I briefly consider the historical arguments for and against the appellate courts' power to issue non-precedential opinions, focusing on Judge Arnold's now-vacated opinion in Anastasoff and Judge Kozinski's opinion in Hart. I conclude that, while Judge Arnold goes too far in arguing that current non-citation rules violate Article III's conception of the "judicial power," Judge Kozinski's argument that the courts of appeals are entirely free to designate some of their opinions as non-precedential equally seems to push the boundaries of judicial propriety, if not of constitutional principle. In Part II, I consider Dean Robel's argument that the no-citation rules in the federal and state courts of appeals should be abolished. While I agree with Dean Robel's contention that unpublished opinions should be freely citable, I take issue with her implicit assertion, following the spirit if not the letter of Anastasoff, that these opinions should be treated as binding precedent. Finally, in Part III I note that, while the limits on availability and citability of unpublished opinions in the federal courts stand as obstacles to a productive and proper use of unpublished opinions, the rules in the state courts present even greater problems. I end by suggesting that state governments should rethink the rules that limit the availability and citability of unpublished opinions emanating from the state intermediate courts of appeals.Item The Continuing Complexity of Indiana Rule of Evidence 404(b)(2002) Cooper, Jeffrey O.Of the numerous provisions in the Indiana Rules of Evidence, few have proved as complicated in application as Rule 404(b). The rule-which provides generally that evidence of crimes, wrongs, or acts other than the conduct that is the subject of the particular case is not admissible as proof of the actor's character, but is admissible for other purposes'-has produced challenging cases in each of the years since the Indiana Rules of Evidence went into effect in 1994. This past year was no exception, as decisions of the Indiana Supreme Court and the Indiana Court of Appeals confronted the numerous problems of application raised by the rule.2 Because the rule remains the subject of confusion eight years after the adoption of the Indiana Rules of Evidence, and more than twenty-five years after the adoption of a parallel provision in the Federal Rules of Evidence, this Article will focus not on the full range of issues addressed by the courts under the Indiana Rules of Evidence during the survey period, but rather will focus on the past year's Rule 404(b) cases.Item In Defense of Less Precedential Opinions: a Reply to Chief Judge Martin(1999) Cooper, Jeffrey O.Many commentators, including Chief Judge Boyce F. Martin, Jr., argue that unpublished opinions serve as a necessary tool for federal appellate courts to manage their caseload and to avoid confusion in the creation of legal doctrine. Moreover, Chief Judge Martin and others assert that, for this tool to operate effectively, citations to unpublished opinions must be strictly prohibited. The authors agree that unpublished opinions can play a vital role in the operations of the federal courts of appeals. The authors urge, however, that this role should be reconceived in light of the unique institutional structure of the federal courts of appeals. The authors observe that the federal appeals courts must render a decision on every case brought before them, and that, because the Supreme Court rarely grants certiorari, the decisions of the federal court of appeals will usually be final. In addition, most cases are decided by a three- judge panel that is designated to speak for the entire court-the decision of this three-judge panel is considered binding upon all judges in the circuit for all future cases. The interaction of these unique institutional factors places the courts in a difficult position when new or unsettled legal issues are raised The authors argue that, in these circumstances, unpublished opinions can play an important role in the development of legal doctrine, allowing appellate judges to engage in an intra-court dialogue before reaching a firm resolution of difficult legal issues. For unpublished opinions to play this role, however, practitioners must be allowed to cite to them.Item Interpreting the Americans with Disabilities Act: The Trials of Textualism and the Practical Limits of Practical Reason(2000) Cooper, Jeffrey O.With the expanding number of federal statutes, the theory and practice of statutory interpretation have received renewed scholarly attention in the past decade Much of the attention has focused on two competing theories of statutory interpretation: textualism, most commonly associated with the jurisprudence ofJustice Antonin Scalia, and practical reasoning typically associated with the work of Professors William Eskridge, Daniel Farber, and Philip Fickey, among others. The two theories offer radically diferent visions of the interpretive process. Textualism posits interpretation as a formalistic process in which consultation of the statutory text and a narrowly defined set of additional sources will yield deterministic results. Practical reasoning in contrast, views interpretation as a dynamic process in which the judge tests possible interpretations against a variety of possible sources. This Article evaluates textualism and practical reasoning through the lens of the employment provisions of the Americans with Disabilities Act, which in expansive language bars discrimination against individuals with disabilities. The Article concludes that textualism fails to provide the needed tools to deal sensibly with a broadly worded statute like the Americans with Disabilities Act. And while practical reasoning seems a more promising approach, it fails to take account of the role ofprecedent, as the focus shifis from the statutory text itself to prior judicial interpretations of the statutory language. In light of this, the Article suggests that some rethinking of the role of precedent in statutory cases may be warranted.Item Judicial Opinions and Sentencing Guidelines(1995) Cooper, Jeffrey O.Rather than characterizing a collective judicial view, this article attempts to discern some trends in the comments and criticisms of the guidelines that have appeared in trial and appellate opinions. Part I addresses the early reaction to the guidelines, as many district judges, accustomed to wide latitude, bridled under newly imposed restraints on their discretion, while the courts of appeals sought to find their footing in the new system. Part II examines the more recent commentary. It finds that cases that have provoked the strongest commentary have been those in which the guidelines fell farthest short of the goal of similar sentences for similar offenses under similar circumstances. Although these cases have presented a variety of issues, they involve a common perception that, in the name of sentencing uniformity, the guidelines have grouped disparate conduct, or conduct proved with varying degrees of certainty, and, through the application of rigid rules, required them to be treated identically.Item New Directions in Tort Law - 1995 Monsanto Lecture Valparaiso University School of Law(1996) Calabresi, Guido; Cooper, Jeffrey O.There are four different levels to recent developments in the law of torts: what's happening in practice, what's happening in Congress, what's happening with the Restatements at the American Law Institute, and, more fundamentally, what are the practical and theoretical effects of an important change in the basic approach that has been gaining form in torts over the last thirty years. After a preliminary nod to the first three, we will focus on this last one, which involves the emergence of splitting rules and the ways in which the trend toward splitting has manifested itself in various tort doctrines.Item Passive Virtues and Casual Vices in the Federal Courts of Appeals(2000) Cooper, Jeffrey O.; Berman, Douglas A.Item Recent Developments in Indiana Evidence Law 1997-1998(1999) Cooper, Jeffrey O.It is now more than five years since the Indiana Rules of Evidence (the "Rules") went into effect on January 1, 1994. In that time, the Indiana courts have occasionally struggled to adjust to the changes in Indiana's evidence law wrought by the Rules. This past year saw a number of significant decisions under the Rules. Some of those decisions, however, raised as many questions as they answered. This Article analyzes the major developments in Indiana evidence law during the period between October 1, 1997 and September 30, 1998. The organization of the Article parallels the structure of the Indiana Rules of Evidence.Item Recent Developments Under the Indiana Rules of Evidence(1997) Cooper, Jeffrey O.This past year was the third year for the Indiana courts under the new regime of the Indiana Rules of Evidence, which took effect on January 1, 1994. Paralleling the two-decades-old Federal Rules of Evidence and similar rules adopted by many states, the Rules have effected a major dislocation of Indiana's prior approach to evidence questions. The courts have thus had to re-evaluate the rationales for their common-law decisions as part of the process of determining the extent of the changes made by the Rules. The cases that came before the courts during the time period covered by this survey required the courts to adopt new approaches to issues spanning the spectrum of evidence law. Although the adaptation to the new Rules can be expected to continue over the coming years, the Indiana courts have already begun to chart an independent path in their interpretations of the text of the Rules, departing in some significant ways from the approaches taken by the federal courts and by other state courts using analogous evidence rules. This Article surveys the major developments in Indiana evidence caselaw during the past year, organized according to the corresponding Articles in the Indiana Rules of Evidence.