Law Commons^™

Parading Ourselves: Freedom Of Speech At The Feast Of St. Patrick, Larry Yackle

Faculty Scholarship

Three things are true. First, American society is now absorbed in yet another great civil rights movement, this one on behalf of gay, lesbian, and ambisexual citizens, which will lead ineluctably to the elimination of legal burdens on the basis of sexual orientation.' Change will come slowly, with much backing and filling, and at an awful price measured in human pain. Intolerance for the homosexualities that exist among us, and the homosexual behavior in which many of us engage, will persist in quarters where the law cannot reach.2 Yet private homophobia, deprived of legal sanction, will ultimately be discredited and …

Motley Is Distinguished Jurist In Residence, Lauren K. Robel

Articles by Maurer Faculty

No abstract provided.

The Georgia Jury And Negligence: The View From The Trenches, R. Perry Sentell Jr.

Scholarly Works

This is the third part of a project devoted to analyzing the Georgia negligence jury. The project employed as its original point of departure the extensive Chicago Jury Study of the 1960s, directed by Chicago Law Professor Harry Kalven, Jr. That Study's immortality derives principally from its famous first premise: Meaningful evaluation of the jury system must originate from within the system itself. That premise propelled Professor Kalven through a massive national survey of trial judges. The judges' responses, under Kalven's insightful analysis, yielded an unprecedented profile of the American jury. In foundational fashion, those responses indelibly etched into legal …

The Tension Between Rules And Discretion In Family Law: A Report And Reflection, Carl E. Schneider

Articles

The history of law is many things. But one of them is the story of an unremitting struggle between rules and discretion. The tension between these two approaches to legal problems continues to pervade and perplex the law today. Perhaps nowhere is that tension more pronounced and more troubling than in family law. It is probably impossible to practice family law without wrestling with the imponderable choice between rules and discretion. Consider, for example, how many areas of family law are now being fought over in-just those terms. For decades we have lived with an abundantly discretionary way of resolving …

Thomas's Supreme Unfitness--A Letter To The Senate On Advise And Consent, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

Justice Blackmun, Federalism, And Separation Of Powers, Dan T. Coenen

Scholarly Works

On June 8, 1970, Harry A. Blackmun took his seat on the Supreme Court bench. Few then foresaw that, in the ensuing twenty-three terms of the Court, Justice Blackmun would make contributions to American law that rank no less than monumental. Justice Blackmun has become best known for his landmark opinion in Roe v. Wade and his increasingly pointed defense of libertarian and egalitarian values. During his long tenure on the Court, however, Justice Blackmun also quietly has shaped the law of constitutional federalism and separation of powers.

This reality first came to my attention in 1987, when I received …

The Myth Of The Impartial Judge, Jane C. Murphy

All Faculty Scholarship

No abstract provided.

The Ambiguity Of Legal Dreams: A Communitarian Defense Of Judicial Restraint, James A. Gardner

Journal Articles

No abstract provided.

Retirement Dinner: Chief U.S. Probation Officer Howard G. Munson, Roger J. Miner '56

Tributes & Testimonials

No abstract provided.

Rethinking Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

The inauguration of President Bill Clinton, who will appoint more than three hundred new federal judges, affords an auspicious occasion for rethinking the process of federal judicial selection. The current federal bench, two-thirds of whose members were appointed by Presidents Ronald Reagan and George Bush, reflects increased conservatism and is quite homogeneous in terms of race, gender, and political perspectives. For instance, President Reagan appointed a dramatically smaller, and President Bush named a substantially lower, percentage of African-Americans than did President Jimmy Carter. The Republican chief executives made these appointments although they had much larger, more experienced, pools of female …

The D.C. Circuit As A National Court, Carl W. Tobias

Law Faculty Publications

Every President since Franklin Delano Roosevelt has appointed lawyers from across the country to the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") and has been accused of ignoring the members of the D.C. Bar. The tradition of nationwide recruitment for appointment to the D.C. Circuit has served the District and the nation well, yielding some of the court's and America's finest judges.

The practice of seeking nominees nationally to fill vacancies on the D.C. Circuit recently faced a serious challenge. Many members of the D.C. Bar, who have long opposed this practice, developed a …

The Federal Administrative Judiciary: Establishing An Appropriate System Of Performance Evaluation For Alj's, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Grammarians At The Gate: The Rehnquist Court's Evolving Plain Meaning Approach To Bankruptcy Jurisprudence, Walter Effross

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Impeachment And Removal Of Tennessee Judge West Humphreys: John Bingham's Prologue To The Johnson Impeachment Trial, Richard Aynes

Akron Law Faculty Publications

At the beginning of the Civil War many individuals who held positions under the United States government submitted resignations which, in their minds, allowed them to assume positions with the so-called government of the Confederate States of America. One of the few individuals who did not do so, but nevertheless assumed a position under the Confederate States of America was U.S. District Judge West H. Humphreys. After the Confederacy was formed, he continued to hold court in the same courtroom but under the guise of a Confederate States Judge.

This presented two problems for President Lincoln and the Unionists. First, …

Progressive Free Speech And The Uneasy Case For Campus Hate Codes, Robert F. Nagel

Publications

No abstract provided.

Keeping The Covenant On The Federal Courts, Carl W. Tobias

Law Faculty Publications

When Governor Clinton was campaigning for the presidency, he contended that the federal court appointments of President Ronald Reagan and President George Bush significantly reduced the diversity that President Jimmy Carter had strongly promoted. Candidate Clinton pledged, if elected President, to rectify that situation. Since the election, Bill Clinton has fulfilled his promise by naming to the judiciary outstanding attorneys who reflect the diverse composition of American society. Now that President Clinton has completed his initial year of service, it is important to analyze the Clinton Administration's record of choosing judges to ascertain precisely how the President has kept his …

President Clinton's Covenant And The Federal Courts, Carl W. Tobias

Law Faculty Publications

President Bill Clinton has eloquently invoked the concept of a new covenant with the American people. Claiming that the populace elected him with a mandate for change, the President has appointed individuals to high-level positions, particularly in the Cabinet, who have made the new government look like America. In no branch of the federal government are these ideas more apposite than the Third Branch.

Thurgood Marshall: The Lawyer As Judge, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

When Thurgood Marshall took the Oath in 1967, it was the twilight of one of the Court's most brilliant periods: the Warren Court's revolution of criminal and racial justice. He was a part of that alliance for two Terms. When a new Court, and new alliances, moved the Court into the dark shadows, he and his closest colleague, William Brennan, Jr., held staunchly to their vision of the Court's historic function “to be watchful for the constitutional rights of the citizen, and against any stealthy encroachment thereon.” He remained faithful to that vision to the end when, as a lone …

Judicial Vacancies And Delay In The Federal Courts: An Empirical Evaluation, In Symposium, The Civil Justice Reform Act, A. Kimberley Dayton

Faculty Scholarship

This Article examines the relationship between federal district court judicial vacancies --whether caused by the executive branch's failure to timely nominate judges, Congress's failure to confirm presidential nominees, or some other reason -- and delays in processing the civil caseload. The hypotheses tested are several configurations of the hypothesis “judicial vacancies cause delay.” The statistical method of analysis of covariance is used to test this hypothesis and thereby evaluate the degree to which delays, defined by reference to certain case management statistics, are correlated to vacancy rates in individual federal district courts, and within the federal system as a whole. …

Praetorianism & Common Law In Post-Colonial Settings: Judicial Responses To Constitutional Breakdowns In Pakistan, Tayyab Mahmud

Faculty Articles

The successive constitutional crises that confronted the Pakistani courts were not of their own making. But the doctrinally inconsistent, judicially inappropriate, and politically timid responses fashioned by these courts ultimately undermined constitutional governance. When confronted with the question of the validity and scope of extra constitutional power, the courts vacillated between Hans Kelsen's theory of revolutionary validity, Hugo Grotius's theory of implied mandate, and an expansive construction of the doctrine of state necessity. A more principled and realistic response would have been to declare the validity of extra constitutional regimes a nonjusticiable political question. Besides ensuring doctrinal consistency, a refusal …

Social Restraint Or Implicit Collusion?: Toward A Game Theoretic Analysis Of Stare Decisis, Erin O'Hara O'Connor

Scholarly Publications

No abstract provided.

Disagreement And Interpretation, Robert F. Nagel

Publications

No abstract provided.

Some Worries About Sentencing Guidelines, William T. Pizzi

Publications

No abstract provided.

Informal Methods Of Judicial Discipline, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Reassessing The Sophisticated Policyholder Defense In Insurance Coverage Litigation, Jeffrey W. Stempel

Scholarly Works

Insurance law often is ironically regarded as both consistent and confusing. However, the 1980s saw significant flowering in the development of an insurance coverage interpretation doctrine that, although seriously flawed in its present form, offers the as yet untapped potential of substantial improvement in judicial construction of commercial insurance policies through seemingly inconsistent treatment of insurance coverage disputes.

During the past two decades, in response to the prodding of lawyers representing insurers, courts have increasingly noted that not all insurance policyholders are equal. Some have more money and bargaining clout than others. Some have more sophistication and understanding about the …

Confirming The Constitution: The Role Of The Senate Judiciary Committee, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Advocacy And Scholarship, Paul F. Campos

Publications

The apex of American legal thought is embodied in two types of writings: the federal appellate opinion and the law review article. In this Article, the author criticizes the whole enterprise of doctrinal constitutional law scholarship, using a recent U.S. Supreme Court case and a Harvard Law Review article as quintessential examples of the dominant genre. In a rhetorical tour de force, the author argues that most of modern constitutional scholarship is really advocacy in the guise of scholarship. Such an approach to legal scholarship may have some merit as a strategic move towards a political end; however, it has …

Three Mistakes About Interpretation, Paul Campos

Publications

No abstract provided.

Understanding Prosecutorial Discretion In The United States: The Limits Of Comparative Criminal Procedure As An Instrument Of Reform, William T. Pizzi

Publications

No abstract provided.

Adverse Publicity As A Means Of Reducing Judicial Decision-Making Delay: Periodic Disclosure Of Pending Motions, Bench Trials And Cases Under The Civil Justice Reform Act, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.