Law Commons^™

Rethinking Antebellum Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …

Do Judges Understand Technology? How Attorneys And Advocates View Judicial Responsibility In Cyberstalking And Cyberharassment Cases, Kateryna Kaplun

International Journal on Responsibility

As new technologies emerge and are increasingly used to commit interpersonal cybercrimes like cyberstalking and cyberharassment, the legal system lags in assisting victims in obtaining justice in these types of experiences. This qualitative research study explores how attorney and advocate interviewees from Illinois, New Jersey, and New York view judges’ responsibility to the law in cyberstalking and cyberharassment cases. This study finds three themes: judges’ lack of understanding of technology and its harms, discretion, and law on the books versus law in action as important factors and frameworks that contribute to why judges do not consider the importance of technology …

Law Library Blog (September 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Jobs For Justice(S): Corruption In The Supreme Court Of India, Madhav S. Aney, Shubhankar Dam, Giovanni Ko

Research Collection School Of Economics

We investigate whether judicial decisions are affected by career concerns of judges by analyzing two questions: Do judges respond to incentives to pander by ruling in favor of the government in the hope of receiving jobs after retiring from the Supreme Court? Does the government reward judges who rule in its favor with prestigious jobs? We construct a data set of Supreme Court of India cases involving the government for 1999–2014. We find that incentives to pander have a causal effect on judicial decision-making, and they are jointly determined by the importance of the case and whether the judge retires …

Taking Stock Of Chapter 11, David A. Skeel Jr.

All Faculty Scholarship

In this Essay, written for a symposium honoring Sam Gerdano, I offer an assessment of current Chapter 11 theory and practice. The most distinctive feature of current Chapter 11 practice is the extent to which the parties now enter into intercreditor agreements, restructuring support agreements and other actual contracts governing their rights and responsibilities. One question raised by the dramatic shift in bankruptcy practice is whether the leading normative theory of bankruptcy, the Creditors’ Bargain Theory, is now obsolete, as some scholars have suggested. The Creditors’ Bargain Theory explains bankruptcy as a solution to coordination problems that might lead to …

Gender And Judicial Decision-Making, Alexandra Just

Undergraduate Theses

This study employs a unique two-tiered approach, involving both quantitative and qualitative methodology to analyze the influences – specifically, a judge’s gender – on the judicial decision-making process. First, a quantitative bivariate regression analysis was conducted to determine whether a Federal District Court judge’s gender had a statistically significant influence on the ideological direction of case outcomes (which is either liberal, meaning the decision was in favor of the petitioner, or conservative, meaning the decision was against the petitioner). Data was analyzed using the statistical program SPSS and was pulled from the 2016 Carp-Manning database, which contains over 110,000 federal …

Reentry Court Judges: The Key To The Court, Christopher Salvatore, Venezia Michalsen, Caitlin Taylor

Department of Justice Studies Faculty Scholarship and Creative Works

Over the last few decades, treatment-oriented court judges have moved away from being neutral arbitrators in an adversarial court process to treatment facilitators. In the problem-solving court model, judges are part of a more therapeutic treatment process with program participants and a courtroom workgroup. The shift from the use of the traditional criminal justice process toward the use of more treatment-oriented models for some populations highlights the need to systematically document key elements of treatment court models. In particular, it is important to clearly document the role of Reentry Court Judges because they are a key component of the Reentry …

Mandatory Domestic Violence Education For Wa State Judges Legislation, Allison Sykes

MSW Capstones

This proposal is a request for legislation that all Washington State judges receive mandatory domestic violence education. There is a need for Washington State judges to receive domestic violence education to prevent biases and misconceptions from influencing their court decisions. The goal of this legislation is to increase safety for victims and increase judges’ ability to make informed judicial decisions in cases of domestic violence. Education has been identified through research and interviews to be the most significant intervention to reduce domestic violence. Judges who are educated about domestic violence make judicial decisions that are more supportive of victims. To …

Law Library Blog (October 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Notoriously Ruthless: The Idolization Of Justice Ruth Bader Ginsburg, Lucille Moran

Political Science Honors Projects

It is now a fixture of mainstream commentary in the United States that Supreme Court Justice Ruth Bader Ginsburg has become a popular idol on the political left. Yet, while Justice Ginsburg’s image and story has reached an unprecedented level of valorization and even commercialization, scholars have yet to give sustained attention to the phenomenon and to contextualize it: why has this idolization emerged within this context, and what is its impact? This paper situates her portrayal in the cultural imagination as the product of two political forces, namely partisanship and identity politics. Considering parallel scholarly discourses of reputation, celebrity, …

Law Library Blog (July 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …

The Stability Paradox Of Special Immigrant Juvenile Status Backlogs: Unstable Policy Implementation For A Stability-Aimed Visa, Lanna Seline Sanchez

Pomona Senior Theses

As of May 2016, the U.S. State Department officially declared a priority date for all green cards for applicants from El Salvador, Guatemala, and Honduras that capped the number of visas granted to individuals from these three countries to just 10,000 per year. This inherently created a two to three-year backlog for Special Immigrant Juvenile Status applicants from these countries as well, meaning that SIJS petitioners will remain undocumented for periods of up to six years until their petition is adjudicated by USCIS and their priority date arrives. I research whether the increasingly difficult path to obtaining permanent residency through …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

All Faculty Scholarship

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files

St. Mary's Journal on Legal Malpractice & Ethics

Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.

Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …

What Makes A Good Judge?, Brian M. Barry

Reports

This article overviews research demonstrating the factors beyond the law that can affect judicial decision-making.

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …

Arguing With Friends, William Baude, Ryan D. Doerfler

All Faculty Scholarship

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive …

Doctrinal Reasoning As A Disruptive Practice, Jessie Allen

Articles

Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

Reforming Recusal Rules: Reassessing The Presumption Of Judicial Impartiality In Light Of The Realities Of Judging And Changing The Substance Of Disqualification Standards To Eliminate Cognitive Errors, Melinda A. Marbes

St. Mary's Journal on Legal Malpractice & Ethics

In recent years, high profile disqualification disputes have caught the attention of the public. In each instance there has been an outcry when a presiding jurist was asked to recuse but declined. Unfortunately, even if the jurist explains his refusal to recuse, the reasons given often are unsatisfying and do little to quell suspicions of bias. Instead, litigants, the press, and the public question whether the jurist actually is unbiased and doubt the impartiality of the judiciary as a whole. This negative reaction to refusals to recuse is caused, at least in part, by politically charged circumstances that cause further …

Law Library Blog (October 2017): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

The Retirement Strategy Of Supreme Court Justices: An Economic Approach, Kayla M. Joyce

Honors Scholar Theses

Previous research has identified strategic behavior in the nomination, confirmation, and retirement processes of the Supreme Court, each independently. This paper analyzes the interaction between the justices, the president, and the Senate in these processes. I constructed a game theoretic model to consider the nomination and approval process of Supreme Court justices and the change in dynamics that might result from an impending election. I hypothesize that sitting justices take into account the party affiliations of the president and the Senate when they are deciding whether it is the optimal time to retire to achieve their own strategic objectives. The …

Blackstone, Expositor And Censor Of Law Both Made And Found, Jessie Allen

Book Chapters

Jeremy Bentham famously insisted on the separation of law as it is and law as it should be, and criticized his contemporary William Blackstone for mixing up the two. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover preexisting legal meaning. Bentham’s critique of judicial phoniness persists to this day in claims that judges are “politicians in robes” who pick the outcome they desire and rationalize it with doctrinal sophistry. Such skeptical attacks are usually met with attempts to defend doctrinal interpretation as a partial or occasional limit on …

Gender, Race, And Intersectionality On The Federal Appellate Bench., Todd Collins, Laura Moyer

Laura Moyer

While theoretical justifications predict that a judge’s gender and race may influence judicial decisions, empirical support for these arguments has been mixed. However, recent increases in judicial diversity necessitate a reexamination of these earlier studies. Rather than examining individual judges on a single characteristic, such as gender or race alone, this research note argues that the intersection of individual characteristics may provide an alternative approach for evaluating the effects of diversity on the federal appellate bench. The results of cohort models examining the joint effects of race and gender suggest that minority female judges are more likely to support criminal …

An Interdisciplinary Approach To Domestic Violence In The Legal System: The Importance Of Victim Advocates, Joanna Chalifoux

Honors Theses

Domestic violence is an aspect of the legal system where there typically is a lack of communication among the institutions involved. Therefore, the benefit of an interdisciplinary approach to domestic violence in the legal system is assessed by emphasizing the importance of the presence of victim advocates in the courtroom. In this dissertation, the issue will be evaluated through a feminist point of view— with the belief that domestic violence is a gendered phenomenon in which the majority of the perpetrators are male and the victims are female. In order to research this, several judges, lawyers, and victim advocates who …

Replacing Scalia, Donald Roth

Faculty Work Comprehensive List

"Scalia was an advocate of 'principled pluralism,' the idea that we should have a society where we not only share a common cause, but we freely and vigorously express and defend our differing views."

Posting about the appointment of a new Supreme Court Justice­­­­­­­­ from In All Things - an online hub committed to the claim that the life, death, and resurrection of Jesus Christ has implications for the entire world.

http://inallthings.org/replacing-scalia/

The Long Shadow Of Bush V. Gore: Judicial Partisanship In Election Cases, Michael S. Kang, Joanna M. Shepherd

Faculty Articles

Bush v. Gore decided a presidential election and is the most dramatic election case in our lifetime, but cases like it are decided every year at the state level. Ordinary state courts regularly decide questions of election rules and administration that effectively determine electoral outcomes hanging immediately in the balance. Election cases like Bush v. Gore embody a fundamental worry with judicial intervention into the political process: outcome-driven, partisan judicial decisionmaking. The Article investigates whether judges decide cases, particularly politically sensitive ones, based on their partisan loyalties more than the legal merits of the cases. It presents a novel method …

Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul

Political Science Honors Projects

The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.

The Rise Of Judicial Governance In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay

Faculty Scholarship

No abstract provided.