Law Commons^™

Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …

The War On Terrorism And The Constitution, Michael I. Meyerson

All Faculty Scholarship

Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …

Eustitia: Institutionalizing Justice In The European Union, Helen E. Hartnell

Publications

The European Union is installing new infrastructure upon which to build a "genuine European area of justice. This "European judicial area" constitutes a key component of the "area of freedom, security and justice" ("AFSJ"). The Amsterdam Treaty added the AFSJ as a dimension of the Union, in order to promote the free movement of persons. "EUstitia" is a neologism that aims to capture both pragmatic and aspirational aspects of this new European governance project. The term is used here to refer solely to the civil law component of the AFSJ. This article both examines EUstitia's key features, and explores the …

Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman

Faculty Scholarship

On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.⁵ When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. …

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Many people rely on mental shortcuts, or heuristics, to make complex decisions, but this sometimes leads to inaccurate inferences, or cognitive illusions. A recent study suggests such cognitive illusions influence judicial decision making.

Judges As Altruistic Hierarchs, Lynn A. Stout

Cornell Law Faculty Publications

No abstract provided.

Brief Of Conference Of Chief Justices As Amicus Curiae Supporting Respondents, Republican Party Of Minnesota V. Kelly, No. 01-521 (U.S. Feb. 19, 2002), ., Roy A. Schotland

U.S. Supreme Court Briefs

No abstract provided.

Getting Right With The Great Chief Justice, R. Kent Newmyer

Faculty Articles and Papers

No abstract provided.

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, 10 Wm. & Mary Bill Rts. J. 249 (2002), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

Dear President Bush, Carl W. Tobias

Law Faculty Publications

Professor Tobias offers advice on judicial selection philosophy for the newly-elected President George W. Bush.

Judicial Mindfulness, Evan R. Seamone

Journal Articles

Like all human beings, judges are influenced by personal routines and behaviors that have become second nature to them or have somehow dropped below the radar of their conscious control. Professor Ellen Langer and others have labeled this general state "mindlessness." They have distinguished "mindful" thinking as a process that all people can employ to gain awareness of subconscious influences, and thus increase the validity of their decisions. In this Article, I establish a theory of "judicial mindfulness" that would guard against two types of "cold" bias when interpreting legal materials. The first harmful bias involves traumatic past events that …

Promoting Judicial Acceptance And Use Of Limited Guardianship, Lawrence A. Frolik

Articles

Guardianship comes within the special province of judges. In the great majority of guardianship hearings, there is no jury. The presiding judge is the sole arbiter of whether the alleged incapacitated person meets the legal standard of mental incapacity and whether that person would benefit from the appointment of a guardian. If a guardian is appointed, the judge determines the type and extent of the powers granted to the guardian. Of course, the judge is not simply free to follow his or her own instincts or desires, for the judge is bound to determine the facts carefully and apply the …

Choosing The Judges Who Choose The President, John C. Nagle

Journal Articles

The stakes for the selection of judges have never been so high. Federal and state court judges have ruled on such divisive issues as education funding, exclusionary zoning, capital punishment, same-sex marriages, school prayer, affirmative action, partial birth abortion, and legislative redistricting.

The selection of those who possess such awesome powers is bound to be contested. But the mode of choosing judges is a secondary question. The debate concerning the selection of judges is fueled by a broader debate about the appropriate role of judges.

The procedures for choosing those judges are caught up in this larger substantive debate, and …

Judicial Selection And Political Culture, Jonathan L. Entin

Faculty Publications

This article proceeds in four stages. Part I examines the major rulings, relating to tort reform and school funding, that prompted the harsh and expensive Ohio campaign. Part II compares the process for appointing federal judges, particularly Supreme Court justices, which has also become notably contentious over the past three decades. Part III discusses the trend away from strict limitations on campaign speech by judicial candidates, which combined with the expansive protections afforded to independent expenditures in election campaigns will facilitate sharp rhetoric by those inclined in that direction. Finally, Part IV assesses the prospects for elevating the level of …

Public Funds And The Regulation Of Judicial Campaigns, Richard Briffault

Faculty Scholarship

Recent discussions of judicial election campaigns have been marked by two themes: (i) the growing costs of such campaigns, with concerns over the roles of large contributions and independent spending, the burden of fundraising for candidates, and the implications of campaign finance practices for judicial decision-making; and (ii) the changing nature of campaigning, as elections that were once “low-key affairs, conducted with civility and dignity,” have become increasingly politicized, marked by heated charges and sharp criticisms of the records and decisions of sitting judges. The two developments are surely intertwined, with the more bitter and hard-fought campaigns funded by rapidly …

A Note On The Neutral Assignment Of Federal Appellate Judges, Carl W. Tobias

Law Faculty Publications

Response to J. Robert Brown, Jr. & Allison Herren Lee, Neutral Assignment of Judges at the Court of Appeals, 78 Tex. L. Rev. 1037 (2000).

Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine

Articles

Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …

The Inside Scoop: What Federal Judges Really Think About The Way Lawyers Write, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

A recent survey indicates that what troubles federal judges most is not what lawyers say but what they fail to say when writing briefs. Although lawyers do a good job articulating legal issues and citing controlling, relevant legal authority, they are not doing enough with the law itself. Only fifty-six percent of the judges surveyed said that lawyers “always” or “usually” make their client’s best arguments. Fifty-eight percent of the judges rated the quality of the legal analysis as just “good,” as opposed to “excellent” or “very good.” The problem seems to be that briefs lack rigorous analysis, and the …

Republican Party Of Minnesota V. White: Should Judges Be More Like Politicians?, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Republican Party of Minnesota v. White shows how unrealistic five justices can be about what happens in judicial election campaigns, and also - ironically - about how much judges differ from legislators and others who run for office. This reality was captured concisely by Robert Hirshon, immediate past president of the American Bar Association (ABA) in his statement following the Court's ruling: "This is a bad decision. It will open a Pandora's Box.... " The decision will change judicial election campaigns in such a way that the quality of the pool of candidates for the …

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

The institutional legitmacy of the judiciary depends on the quality of the judgments that judges make. Even the most talented and dedicated judges surely make occasional mistakes, but the public expects judges to avoid making systematic errors that favor particular parties or writing opinions that embed these mistakes into the substantive law. Psychological research on human judgment, however, suggests that this expectation might be unrealistic.

The Paradox Of Judicial Bypass Proceedings, Jamin B. Raskin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Clarence Thomas: The First Ten Years Looking For Consistency, Mark Niles

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Changing The Face Of The Law: How Women's Advocacy Groups Put Women On The Federal Judicial Appointments Agenda, Mary Clark

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Carter's Groundbreaking Appointment Of Women To The Federal Branch: His Other Human Rights Record, Mary Clark

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Clarence Thomas After Ten Years: Some Reflections, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai

Faculty Scholarship

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …

Beyond Interpretation, Pierre Schlag

Publications

No abstract provided.

Dissenting Opinions: In The Georgia Supreme Court, R. Perry Sentell Jr.

Scholarly Works

Under our system of justice, each jurisdiction necessarily evolves its own distinct tradition of judicial dissent. That evolution's impetus, history, pattern, and results all converge in an informative profile--affording yet another means of studying a state's highest appellate court. A dissent profile of the Georgia Supreme Court thus offers an additional evaluative view of the state's most important judicial cathedral.

Taking Lessons From The Left?: Judicial Activism On The Right, Stephen F. Smith

Journal Articles

The topic I would like to address in this essay is the subject of conservative judicial activism. Dismayed at the boldness of the Rehnquist Court's conservative majority in areas such as affirmative action and race-based redistricting, federalism, takings law, and my own field of constitutional criminal procedure, critics have accused the Court of being "activist." These attacks have become almost ubiquitous now, to the point that it is increasingly difficult to find any area of the Rehnquist Court's jurisprudence that has not been condemned as activist. Perhaps this is not surprising; the term "activism" packs a powerful rhetorical punch, especially …

Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level, Frank O. Bowman, Michael Heise

Cornell Law Faculty Publications

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.

Our first article, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa Law Review 1043 (May 2001) ( "Rebellion I" ), examined national sentencing data in an effort to determine whether the decline in federal drug sentences is real (rather than a statistical anomaly), and to identify and analyze possible causes of the decline. We …