Law Commons^™

Learned Hand’S District Court Opinions, 1916-1917: A Macrostructural Analysis Employing Cognitive Psychology Principles, Jeffrey A. Van Detta

Jeffrey A. Van Detta

What makes a judge a good trial court writer? Should this be measured by the writing of the appeals court judges who review them? Does it even matter if trial court judges write well? These are important questions, especially with the growth of our state and federal trial court systems in the United States and Canada. Yet, they’ve not been directly posed, nor adequately answered, even by law professors who use judicial opinions daily as the grist for milling the laity into lawyers. The typical emphasis on appellate opinions as the exemplars of "good judicial writing” is misplaced. Appellate opinions …

Mr. Justice Blackstone: The Commentator On Common Pleas, Emily Kadens

EMILY KADENS

Although William Blackstone served longer as a judge on the English Court of Common Pleas than he had as the inaugural Vinerian Professor of English law at Oxford, his post-professorial legal life has been almost entirely ignored by scholars. Only one article, written almost fifty years ago and focused narrowly on legal doctrine, has offered any insight into Blackstone as a judge. And yet the subject is of great interest for two reasons. First, Blackstone was the first law professor to become a judge on an English common law court. Second, his judicial opinions provide an alternative, and arguably a …

Manipulating Court Doctrine For The Good Of The Common Law And Compulsory Arbitration, Richard L. Barnes

richard l barnes

No abstract provided.

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Judicial Reporting Of Lawyer Misconduct, Arthur F. Greenbaum

Arthur F Greenbaum

It has long been recognized that judges can and should play a central role in the lawyer disciplinary process by reporting substantial lawyer misconduct they observe to disciplinary authorities. Despite the nearly 20-year existence of a mandatory reporting rule in such instances, the conventional wisdom suggests that the rule often is not followed. While the 2007 revision of the ABA Model Code of Judicial Conduct provided a golden opportunity to address this problem, the process resulted in little more than a hortatory reaffirmation of the basic principle. There is a better path.

In this essay, I thoroughly analyze the costs …

Redefining Harm, Reimagining Remedies And Reclaiming Domestic Violence Law, Margaret Johnson

Margaret E Johnson

Women subjected to domestic violence are disserved by the civil domestic violence laws that should effectively address and redress their harms. The Civil Protective Order [CPO] laws should remedy all domestic abuse and not solely physical violence or criminal acts. All forms of abuse, including psychological, emotional, economic and physical abuse, cause severe emotional distress, physical harm, isolation, sustained fear, intimidation, poverty, degradation, humiliation, and coerced loss of autonomy. Moreover, all abuse is interrelated, because, as researchers have demonstrated, most domestic violence is the fundamental operation of systemic oppression through the exertion of power and control. Given the effectiveness of …

An Intellectual History Of Judicial Activism, Roger Craig Green

Roger Craig Green

This Article seeks to reclaim the _term_ judicial activism by exploring the _concept_ of judicial activism that underlies it. From newsrooms to confirmation hearings, judicial activism is a uniquely popular epithet condemning judicial misconduct. One goal of this Article is to dispel misperceptions about what judicial activism actually is. Popular examples include understandings of activism as (i) any exercise of judicial review, (ii) any result with which the observer disagrees, (iii) any decision purporting to enhance individual rights, or (iv) any opinion that fails to defer to actions of elected officials.

A second project is to explain in positive terms …

Judicial Independence And Nonpartisan Elections, Brandice Canes-Wrone, Tom S. Clark

Brandice Canes-Wrone

This Article argues against the conventional wisdom about nonpartisan judicial elections. In contrast to the claims of policy advocates and the scholarly literature, we suggest that nonpartisan elections do not necessarily encourage greater judicial independence than partisan elections do. Instead, nonpartisan elections create the incentive for judges to cater to public opinion, and this pressure will be particularly strong for the types of issues that attract attention from interest groups, the media, and voters. After developing this argument, we support it with new empirical evidence. Specifically, we examine patterns of judicial decisions on abortion-related cases heard by state courts of …

Social Cognition 'At Work:' Schema Theory And Lesbian And Gay Identity In Title Vii, Todd Brower

todd brower

Lesbians and gay men are frequent subjects for modern news, politics, and court opinions. From marriage for same-sex couples to Congressional hearings on the military’s “Don’t ask, don’t tell” regulation, decision-makers are setting policy based on their ideas about how gay people are and how they fit into society. But what are those perceptions and how do they interact with law? We ordinarily think of lesbians and gay men as predominantly childless, urban residents of cities like San Francisco, New York, Chicago, or Los Angeles or as inhabitants of the Northeastern or Pacific Coast states. However, data from the 2000 …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

The Reagan Administration And The Rehnquist Court's New Federalism: Understanding The Role Of The Federalist Society, Amanda L. Hollis-Brusky

Amanda Hollis-Brusky

This article takes to task and complicates the narrative advanced by Professor Dawn Johnsen in her 2003 Indiana Law Review Article, “Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change.” Using evidence drawn from an in-depth examination of the speeches and writings of actors associated with both the early Federalists and the Reagan Administration, archival documents from the Ronald Reagan Presidential Library, as well as data gathered from personal interviews, this study presents a richer, more nuanced, and more complete narrative of the impact of the Reagan Revolution on the New Federalism. In sum, it …

Gender And The Chinese Legal Profession In Historical Perspective: From Heaven And Earth To Rule Of Woman?, Mary Szto

Mary Szto

This article first discusses the current phenomenon of women judges and male lawyers in China. Many women have joined the ranks of the Chinese judiciary because this is considered a stable job conducive to caring for one’s family, as opposed to being a lawyer, which requires business travel and heavy client entertaining. I then trace this phenomenon to ancient views of Heaven, earth, gender and law in China. In this yin/yang framework, men had primary responsibility for providing sustenance for both this life and the life to come and women were relegated to the “inner chambers”. Also, law was secondary …

State Actors Beating Children: A Call For Judicial Relief, Deana Ann Pollard Sacks

Deana A Pollard

Controversy over public school corporal punishment is at an all-time high. On August 20, 2008, the Human Rights Watch/ACLU brought public attention to the issue by releasing its report on corporal punishment of children in American public schools. Lawsuits challenging this state action on constitutional grounds continue to be filed, as advocates seeking to ban school paddling refuse to accept that beating students is constitutionally permissible, despite their repeated losses in the federal courts, and the Supreme Court’s refusal to consider the issue again on June 23, 2008. Ignoring the uproar, nearly half of the United States continue to employ …

An Intellectual History Of Judicial Activism, Craig Green

Roger Craig Green

This Article seeks to transform how readers view judicial activism. From newsrooms to confirmation hearings, judicial activism is a uniquely potent and popular epithet condemning judicial misconduct. By contrast, most legal scholars either eschew activism-talk as too vague, or they adopt unsound definitions of the term as (i) any exercise of judicial review or (ii) any unfavorable result. These trends have segregated normative debates over judicial activity, with solidly unfortunate results.

This Article reclaims the term judicial activism by exploring the concept of judicial activism that underlies it. One goal of this Article is to dispel widespread misperceptions about judicial …

Mining For Gold: The Constitutional Court Of South Africa's Experience With Comparative Constitutional Law, Ursula Bentele

Ursula Bentele

MINING FOR GOLD: THE CONSTITUTIONAL COURT OF SOUTH AFRICA’S EXPERIENCE WITH COMPARATIVE CONSTITUTIONAL LAW

Ursula Bentele

Abstract

Despite a long history of referring to foreign law in its opinions, the Supreme Court’s recent citations to such sources have caused heated controversy. Critics warn of threats to sovereignty as well as serious flaws in the way judges use outside authority. Largely missing from this debate is any probing examination of the actual practice of engaging with foreign authorities. This article attempts to fill the empirical void by analyzing closely one court that has used foreign law extensively: the Constitutional Court of …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

“Mr. Presidential Candidate: Whom Would You Nominate?”, Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Reconceptualizing Competence: An Appeal, Mae C. Quinn

Mae C. Quinn

This article builds on contemporary critiques of the justice system’s treatment of the mentally impaired, examining an important issue that until now has gone wholly unaddressed -- the effect of defendant impairment on the criminal appeals process. It argues that conventional wisdom stressing the importance of defendant competence during criminal trials but ignoring the incompetence of defendants during direct appeals makes little sense. Such an approach to defendant capacity not only fails to account for the realities of criminal practice, but works to undermine the fairness and efficacy of the American appellate process. Thus this paper calls for reconceptualization of …

It Takes Three, Baby: The Lack Of Standard, Legal Definitions Of “Best Interest Of The Child” And The Right To Contract For Lesbian Potential Parents, Harvey L. Fiser, Paula K. Garrett

Harvey L. Fiser

In order to consider the plausibility of contracts regarding AI, this article will first review various options and legal ramifications for choices regarding AI and then focus on the effect of inconsistent application of the Uniform Parentage Act among states that have chosen to adopt any legislation. This legal conundrum creates major obstacles for lesbian couples in procreation and in legal protection for children and often denies lesbian Americans the right to equal enforcement of contracts. This article will then consider how the current standard of “best interest of the child” is being used in the absence of the UPA …

Justice Kennedy's Gendered World, David S. Cohen

South Carolina Law Review

No abstract provided.

Book Review Of "How Judges Think" By Richard Posner, Charles D. Kelso, R. Randall Kelso

charles D. Kelso

This book review summarizes Judge Posner's presentation of how judges think and adds an evaluation.

Education For Judicial Aspirants, Keith Fisher

Keith R. Fisher

Introductory judicial education (IJE) is an avenue for improving both appointive and elective systems of judicial selection. The impetus for considering this topic can be traced back to a lingering unease with judicial selection and the ongoing (though now somewhat stagnant) debate over merit selection. Moreover, changes in the nature of law practice and the judicial role over the past several decades have rendered the gap between the two activities increasingly large. IJE is an effort to maximize the chances that judicial selection, by any process, will result in a judiciary composed of competent individuals who are not only philosophically …

The Demise Of The Law-Finding Jury In America And The Birth Of American Legal Science: History And Its Challenge For Contemporary Society, Jonathan R. Lahn

Jonathan R Lahn

Today we take for granted the division of labor in the courtroom whereby judges have the exclusive authority to determine the law applicable to a given case, while juries decide questions of fact. Yet this strict separation of powers did not become a fact of American legal life until the mid-19th Century, and was not recognized by the United States Supreme Court as a constitutional principle until the 1890s. Legal historians, while certainly aware of the tradition of the law-finding jury in early American legal practice, have thus far failed to fully explore its significance as a reflection of early …

Billy Budd, Joseph Story, And Racial Liberals Frying Fish--A Polemical Essay, Peter Linzer

Peter Linzer

Please see cover letter.

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

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

Faculty Scholarship

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 …

The Problematic Nature Of Contractionist Statutory Interpretations, Brian G. Slocum

Brian G. Slocum

The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging …

Public Access And Media Rules For Administrative Adjudicators In High Profile Hearings, Chris Mcneil

Christopher B. McNeil, J.D., Ph.D.

This article offers a brief overview of the legal issues relevant to creating media access policies for administrative agencies. It also provides a model policy for use by executive-branch adjudicators in anticipation of high profile agency evidentiary hearings.

Chasing Queers: The Radicalism Of Conservative Legal Attacks On Lesbians And Gay Men, William B. Turner

William B Turner

This paper describes seven cases, mostly from state courts, that are unremarkable except that they reveal a pattern of attack by conservative activists, including law firms, on the rights of lesbians and gay men. In attacking the rights of lesbians and gay men, these conservatives also frequently assert special rights for themselves. Five of these cases involve standing or intervention, with conservatives asserting patently insupportable (except in one case) claims to standing for the purpose of depriving lesbians and gay men of benefits. Two involve full faith and credit. With one exception, these are all state cases that would otherwise …

Federal Courts As Constitutional Laboratories: The Rat's Point Of View, Maureen N. Armour

Maureen N Armour

This article examines the operation of the lower federal courts as constitutional laboratories where problems related to implementing the Supreme Court's problematic constitutional decisions are routinely addressed. By using the methodology of a detailed case study of Eighth Amendment litigation the author provides critical insights into the workings of the federal trial courts and three judge appellate panels and insights into the applied phenomenology of ajudicative discretion, the moving force of this judicial laboratory. The article also examines the problematic nature of the Supreme Court's constitutional decisions, their textual openness, doctrinal malleability,and prudential "errors," and how this effects the institutional …