Law Commons^™

Revisiting The Tense Relationship Between The U.S. Supreme Court, Administrative Procedure, And The National Environmental Policy Act, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article addresses the possibility, under the prevailing understanding of NEPA, that an agency might draft a comprehensive report containing information about potential environmental effects and alternate approaches to a proposed plan--and then wholly disregard all of this information in making its final decision. Although an agency may contend that it has “considered” the environmental consequences of alternative courses of action, what if these factors have no actual impact on its final decision? Hypothetically, an agency could simply “steamroll” toward its preferred decision, hurdling NEPA's procedural obstacles without genuinely considering potential environmental harms or the means to avoid them.

This …

The Dubitante Opinion, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

A dubitante (pronounced d[y]oo-bi-tan-tee) opinion indicates that “the judge doubted a legal point but was unwilling to state that it was wrong.” Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion--What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of …

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article tests a model of judicial decisionmaking that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. …

The Surge In Immigration Appeals And Its Impact On The Second Circuit Court Of Appeals, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In this report we (1) describe the BIA procedural reforms; (2) quantify the resulting increase in appeals from the BIA to the circuit courts of appeals with particular emphasis on the Second Circuit; (3) review the constitutional challenges to the BIA reforms, which have been uniformly rejected; (4) describe the administrative response of the Second Circuit to the BIA appeal surge; (5) assess the impact of the surge on the Second Circuit, and its other ramifications; and (6) offer our recommendations on how to deal with the surge going forward.

A Call For Change: Improving Judicial Selection Methods, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Empirical data show that, despite the significant electoral success of state court judges, elections still impact judicial decision making. Using the State of Wisconsin as an example, this Essay suggests that Wisconsin and other state legislatures, with the support of bar associations and academics, should revisit the historical underpinnings of judicial elections and consider both whether electing judges conforms with the historical goals of having an elected judiciary and whether the available empirical data support the belief that elected judges can be systematically consistent and independent in the decision making process.

Putting The Supreme Court Back In Place: Ideology, Yes; Agenda, No, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

This essay is about the permanent damage to the Supreme Court and to the country that may occur if the current approach to judicial appointments continues, and offers an approach to the nomination and confirmation of Supreme Court justices that will help put the Court back in its proper place - out of the eye of the elective political storm.

Voting And Electoral Politics In The Wisconsin Supreme Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article examines criminal cases decided by the Wisconsin Supreme Court over a fifteen-year period in an effort to discern whether judicial elections undercut judicial independence by affecting the ways justices vote. Wisconsin was chosen for this study because the state's mix of appointed and elected judges allows a researcher to control for different judicial selection systems. Specifically, this Article questions whether voting patterns may be affected by a justice's proximity to judicial elections, election margins, and whether a justice was appointed or elected in the initial term, since the governor may appoint a justice to fill a vacancy on …

Now You See It, Now You Don't: Depublication And Nonpublication Of Opinions Raise Motive Questions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The basis for these comments is a decision last year by the Eighth Circuit Court of Appeals in Anastasoff v. United States. The court held that an Eighth Circuit local rule, which authorized nonpublication of opinions and explicitly stated that unpublished opinions were to have no precedential effect, was unconstitutional. The panel, in an opinion by Judge Richard S. Arnold, reasoned that a court rule purporting to confer upon appellate judges an absolute power to decide which decisions would be binding and which would not be binding went well beyond the “judicial power” within the meaning of Article III of …

The Sound Of Silence: The Supreme Court And The Second Amendment - A Response To Professor Kopel, David S. Yassky

Elisabeth Haub School of Law Faculty Publications

Until now, the revisionists have based their argument entirely on claims about the intentions of those who framed and ratified the Second Amendment. Revisionists have heretofore conceded that the courts have rejected their approach; indeed, the basic structure of the revisionist argument has been: The Founders intended an individual right to firearm possession; the courts (abetted by the academy) have all but nullified the Amendment by treating it as a mere safeguard for militia; the courts should recognize their error and strike down gun control laws.

With his latest contribution, David Kopel seeks to open a second front in the …

Proving The Lie: Litigating Police Credibility, David N. Dorfman

Elisabeth Haub School of Law Faculty Publications

This essay proposes a wider scope for a somewhat timeworn discussion-specifically, that police mendacity and the need to deter this form of police misconduct go to the very heart of our criminal justice system and the need for trust in government and its processes, which search and seizure law and practice is only a small part. Being only a part of a much larger systemic societal problem, tinkering with search and seizure law and process alone will not heighten the police witness' respect for the oath.

Synopsis Of The Report Of The Second Circuit Task Force On Gender, Racial And Ethnic Fairness In The Courts, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

The recent Report of the Second Circuit Task Force on Gender, Racial, and Ethnic Fairness in the Courts (‘Taskforce‘) observes “some biased conduct toward parties and witnesses based on gender or race or ethnicity has occurred on the part of both judges and lawyers.” “Biased conduct toward lawyers based on gender or race or ethnicity, has occurred to a greater degree.” The Report concludes that such conduct is unacceptable and admonishes all participants in the Second Circuit courts to guard against it. The purpose of this Perspective is to review several sections of the Report. The Perspective is written from …

An Open Courtroom: Should Cameras Be Permitted In New York State Courts?, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

On June 30, 1997, the State of New York became one of the nation's few states which does not permit audio-visual coverage of court proceedings. There are several potent arguments in the determination of whether cameras should be permitted in courtroom proceedings. This article will briefly summarize the history of the use of cameras in New York State courts, and then, set out the arguments for and against their use in the state's judicial system. The article is prompted by the book entitled “An Open Courtroom: Cameras in New York Courts” which was published in 1997 by the New York …

Supervisory Power Of The New York Courts, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article discusses the role of supervisory power in the judicial culture of New York. In order to place supervisory power in a context, Part II outlines the emergence and decline of supervisory power in the federal system. Part III then traces the origin of supervisory power in New York to Cardozo's dictum in Lemon. Part IV explains how supervisory power is an aspect of the much broader inherent judicial power, which finds expression in the familiar common law decision-making process. Part V discusses three principal areas in which supervisory power has been exercised by New York courts since Cardozo: …

The Family Court: An Historical Survey, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

The New York Family Court this year celebrates its twenty-fifth anniversary. Hailed as an "experimental" tribunal, designed to resolve society's most intractable problems, including family dissolution, delinquency and child neglect, the court has been perceived as a radical development which altered the then existing legal rules governing family affairs. The Family Court Act indeed incorporates several creative provisions. But the court's foundations were built upon solid jurisprudential underpinnings, principles which had evolved over the course of the preceding century. Establishment of the court was neither radical nor experimental; in reality, Family Court represents the latest increment in the development of …

The Prosecutor's Obligation To Grant Defense Witness Immunity, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The author enumerates the three most common situations in which the courts have required the prosecutor to offer immunity to defense witnesses: (1) to safeguard the defendant's right to essential exculpatory testimony; (2) where the use of the prosecutor's powers to grant immunity causes such distortion in the fact-finding process as to require granting immunity to defense witnesses; and (3) where immunity is required to remedy prosecutory misconduct such as the intimidation of witnesses. The use of the "missing witness" instruction to avoid reaching the constitutional issue is also discussed.

The Burger Court And Prosecutorial Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Professor Gershman critically examines a series of recent Supreme Court decisions dealing with prosecutorial misconduct. In each case, the Court reversed the lower court and reinstated the conviction.

There are a broad range of issues involved; from suppression of evidence to trial misconduct. As a former prosecutor in New York City, the author is forced to conclude that, "Prosecutorial misconduct occurs because it works and because sanctions for misbehavior are virtually nonexistent."

Personal Jurisdiction In Federal Question Suits: Toward A Unified And Rational Theory For Personal Jurisdiction Over Non-Domiciliary And Alien Defendants, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

No coherent or cohesive procedure or theory has emerged either in regard to the entire question of personal jurisdiction in federal courts or in regard to federal question cases. The cases and courts are in disarray, both as to when a federal standard should apply to the question of amenability to service of process and as to what a federal standard might require. The purpose of this article is to examine the problem in the context of the various types of cases in which it might arise and to prescribe some consistent, sensible scheme of personal jurisdiction in federal question …

Review Of The Court Years, 1939-1975, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Remittitur Practice In The Federal Courts, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

The first section of this Note examines and evaluates the mechanics of remittitur procedure in the federal courts. The second section focuses on the major unresolved issue of remittitur procedure: whether a plaintiff who elects to remit is entitled to appellate review of the remittitur order. The final section of the Note evaluate remitting-plaintiff appeal procedures and suggest some ways in which federal remittitur procedure might be made more efficient and more responsive to policy objectives.