Law Commons^™

A Public Calling: Lessons From The Lives Of Judges Of Color In Pennsylvania, Phoebe A. Haddon

Phoebe A. Haddon

This paper discusses how Judge Clifford Scott Green, Judge William Marutani, and Judge Juanita Kidd Stout spent their lives as leaders in the law to illustrate the ideal of a "public calling."

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

Daniel Kanstroom

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Diane Hoffmann

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Dora And William Donner Were Busy People, Richard H. Maloy

Richard Maloy

No abstract provided.

Checking The Staats: How Long Is Too Long To Give Adequate Public Notice In Broadening Reissue Patent Applications?, David M. Longo

David M. Longo

No abstract provided.

Originalism And The Aristotelian Tradition: Virtue’S Home In Originalism, Lee Strang

Lee J Strang

A concept fundamental to philosophy—virtue—is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it takes on board virtue ethics’ insights.

Originalism must articulate virtue’s role in …

Does Three Do The Trick In The Ninth? The Liberal Ninth Circuit – Myth Or Fact: How The Three Judge Panel, And A System Of Published And Unpublished Opinions Interact With Political Appointments In The Ninth Circuit, Rachel N. Agress

Rachel N. Agress

This article examines the persistent view that the Ninth Circuit is “overly liberal,” and attempts to evaluate this outlook in light of data collected regarding two variables. The first variable is the composition of individual political orientations of judges on the Ninth Circuit as compared to the political composition of other circuit courts. To achieve this comparison, this paper looks at political appointments and classified judges as “liberal” or “conservative,” based on political appointment by a Democratic or Republican president. Further, this article delineates the current percentage of “liberal” versus “conservative” judges in each circuit, comparing the average circuit court …

Cognitive Illiberalism And Debiasing Strategies, Paul Secunda

Paul M. Secunda

Legal realist scholars of a generation ago posited that judicial perception of facts reflect previously-held values and assumptions rather than record evidence. Yet crucially those scholars did not describe the psychological mechanism by which judges’ values come to shape facts. Understanding the psychological mechanism, culturally-motivated cognition, is a necessary first step to counteract the impact of cognitive illiberalism. Cognitive illiberalism results from the manner in which legal decisionmakers explain their decisions, and how those explanations are processed by “losers” in the politico-legal wars of our society. The phenomenon of cognitive illiberalism delegitimizes legal decisions and causes societal discontent with the …

Judicial Misconduct In Criminal Cases: It’S Not Just The Counsel Who May Be Ineffective And Unprofessional, Richard Klein

Richard Daniel Klein

No abstract provided.

What’S More Important Than Wise Judges? Wise Voters, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Niqab In The Courtroom: Protecting Free Exercise Of Religion In A Post-Smith World, Adam Schwartzbaum

Adam Schwartzbaum

The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, …

Processing Civil Rights Summary Judgment And Consumer Discrimination Claims, Deseriee A. Kennedy

Deseriee A. Kennedy

No abstract provided.

Judging Indian Law: What Factors Influence Individual Justice’S Votes On Indian Law In The Modern Era, Grant Christensen

Grant Christensen

Abstract: Scholars of the Supreme Court often use a justice’s political ideology to predict their ultimate vote on Constitutional questions. While this approach may serve scholars well when questions involve hot button civil liberties issues that are the focus of confirmation hearings, ideology is in actuality a poor predictor of judicial behavior in other areas of law. This paper looks at one of the more complex – Federal Indian Law – and uses both descriptive statistics and more advanced quantitative analysis to go beyond the pure ideology and explain why individual Justices vote the way they do. Using the Fisher …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order to …

Opening Pandora’S Box: An Empirical Exploration Of Judicial Settlement, Peter Robinson

Peter R. Robinson

The article is an empirical study of, among other things, what judges do when they are facilitating a settlement and they believe the outcome is substantially different from what they believe would be the usual range of outcomes at trial. The topic is important because many authors have expressed concern about the blurring of the judicial roles of settlement facilitator and decision maker. it documents that judges are largely unconcerned, which raises many policy questions.

Another piece of good news is that this is the fourth in a series of law review articles and is empirically based. A literature review …

Psychological Realism In Labor And Employment Law, Paul Secunda

Paul M. Secunda

Facts matter, especially in labor and employment law cases. But not in the way that labor scholars of a generation ago understood. Those scholars correctly posited that judicial perception of facts reflected previously-held values and assumptions rather than record evidence. Yet crucially, those scholars did not describe the psychological mechanism by which judges’ values came to shape facts in labor and employment law cases. Understanding the psychological mechanism by which judicial values shape legal decisions is a necessary first step to set up a framework to counteract the impact of cognitive illiberalism, a form of cognitive bias that impacts society …

The Supreme Court Rules For The Reporting Of Opinions: A Critique, William M. Richman, William L. Reynolds

William L. Reynolds

No abstract provided.

Judging, Expertise, And The Rule Of Law, Chad M. Oldfather

Chad M Oldfather

Though we live in an era of hyper-specialization, the judiciary has for the most part remained the domain of generalists. Specialized courts exist, however, and commentators regularly claim that further judicial specialization is desirable or inevitable. Yet recent years have witnessed the beginning of a backlash against the increasing division of intellectual labor, such that it is appropriate to question the merits of judicial specialization. This article engages the existing literature on judicial specialization in two ways. First, by demonstrating that the question of judicial specialization is considerably more complex and contingent than is typically depicted. We must, for example, …

Judicial Recess Appointments In The Modern Era: Majority Preferences For An Anti Majoritarian Institution, Robert M. Howard

Robert M Howard

The purpose of the recess appointment clause is clear – it allows the executive to keep the operations of government running even when the Senate is not in session and unable to confirm presidential appointees. We want to determine why this practice, common several decades ago, virtually disappeared in the 1960s and why it reappeared in the form of three controversial appointments to the Circuit Courts of Appeals—one by outgoing President Clinton in 2000 and two by President Bush in the congressional session preceding his reelection in 2004. We analyze every vacancy on the federal Courts of Appeals in the …

Judging In A Vacuum, Or, Once More, Without Feeling: How Justice Scalia’S Jurisprudential Approach Repeats Errors Made In Plessy V. Ferguson, Chris Edelson

Chris Edelson

Justice Antonin Scalia recently declared that the 14th Amendment’s Equal Protection Clause simply does not apply to discrimination based on sex or sexual orientation. Though Justice Scalia’s statement is not exactly news, as he had previously suggested as much in dissenting opinions in Romer v. Evans and United States v. Virginia, it does provide an opportunity to consider how he arrived at these conclusions. Justice Scalia argues that he is simply applying the original meaning of the Equal Protection Clause, deferring to tradition and the will of the people until and unless democratic action provides new instructions. This article argues …

Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds

William L. Reynolds

No abstract provided.

Choosing Justices, Paul D. Carrington

Paul D. Carrington

Attention is directed to the absence of intellectual, social, and religious diversity in the present membership of the Supreme Court and advocates the appointment of Justices culturally different from the present group.

Justice Stevens' Jurisprudence Of Respect, Nancy S. Marder

Nancy S. Marder

No abstract provided.