Law Commons^™

Promises And Pitfalls In Un Regulation Of Judicial Independence, Martha Kiela

Northwestern Journal of Human Rights

This article investigates the current mechanisms and power of the UN to ensure judicial independence in the UN Member States. First, it surveys the UN bodies which play a role in creating international regulations for judicial independence and monitoring Member States’ compliance with them. Second, it analyzes the responses of these bodies to challenges to judicial independence by conducting case studies of Venezuela and Poland, and how these actions compare to those of other international organizations and tribunals. The central questions it seeks to answer are which mechanisms of review and enforcement have so far been the most effective in …

Depoliticizing The Supreme Court: How To Rein In Those Answerable To No One?, Dana Ortiz-Tulla ,Esq

Journal of Race, Gender, and Ethnicity

This Note will discuss some of the Commission’s findings and other interesting suggestions to determine whether it is possible to rein in the modern-day Court. Part I will explain the inherently political nature of the Supreme Court. Part II will briefly present how the Supreme Court acquired its power. Part III will discuss several prominent proposals for Supreme Court reform. Finally, Part IV will examine whether any recommendations may depoliticize the Court.

The Court And The Constitution, Lori A. Ringhand

Scholarly Works

Americans do not want the Supreme Court to be just another political institution. This is apparent in the lukewarm response to even modest proposals to change the structure of the Court, such as limiting the terms of its justices or changing its size. The partisan overlay of this reaction is obvious, but the purpose of this Essay is to highlight an additional barrier to change: the dominance of originalist rhetoric in American constitutional discourse. The rhetoric of originalism has successfully tapped into many Americans’ deeply held expectations about the role of the Court and the Constitution as a unique and …

A Theory Of Constitutional Norms, Ashraf Ahmed

Faculty Scholarship

The political convulsions of the past decade have fueled acute interest in constitutional norms or “conventions.” Despite intense scholarly attention, existing accounts are incomplete and do not answer at least one or more of three major questions: (1) What must all constitutional norms do? (2) What makes them conventional? (3) And why are they constitutional?

This Article advances an original theory of constitutional norms that answers these questions. First, it defines them and explains their general character: they are normative, contingent, and arbitrary practices that implement constitutional text and principle. Most scholars have foregone examining how norms are conventional or …

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Packing And Unpacking State Courts, Marin K. Levy

Faculty Scholarship

When it comes to court packing, questions of “should” and “can” are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and Congress simply cannot do. Even though the Constitution’s text does not directly prohibit expanding or contracting the size of courts for political gain, many have argued that there is a longstanding norm against doing so, stemming from a commitment to judicial independence and separation of powers. And so (the argument goes), even though the political branches might otherwise be tempted to add or subtract seats to change the Court’s ideological makeup, …

The Judge's Ethical Duty To Report Misconduct By Other Judges And Lawyers And Its Effect On Judicial Independence, Leslie W. Abramson

Leslie W. Abramson

This Article discusses the judge's ethical duty to report misconduct by other judges and lawyers and the effect of this duty on judicial independence. It examines the judicial duty to disclose, compares it to a lawyer's ethical duty to disclose, and surveys several issues of interpretationand application of the judicial ethical requirement including when the duty to report arises, what misconduct should or must be reported, and what actions or disciplinary measure are appropriate for the judge to pursue. In addition, it discusses exceptions to the duty to disclose andproposes modification of the existing ethical standard.

Considering Reconsidering Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

In Reconsidering Judicial Independence, Professor Stephen Burbank revisits the nature of the relationship between judicial independence and judicial accountability—a relationship that he has elucidated over the course of an illustrious career. As Burbank emphasizes, the continuing success of this dichotomy depends on preserving a balance between its halves. But forces generations in the making have led to a new assault on the independence of the judiciary in the age of Trump, which has put the future of the independence–accountability balance in doubt. The age-old rule-of-law paradigm, which posits that independent judges put aside their personal biases and follow the law, …

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 …

The Death Of Judicial Independence In Turkey: A Lesson For Others, Edwin L. Felter Jr., Oyku Didem Aydin

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Chicago-Kent Law Review

Chief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it. To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For one, …

Courts Under Pressure: Judicial Independence And Rule Of Law In The Trump Era, Johanna Kalb

Articles

No abstract provided.

The Origins (And Fragility) Of Judicial Independence, Tara L. Grove

Vanderbilt Law Review

We hold certain truths of the federal judiciary to be self-evident. Article III judges are entitled to life tenure and salary protections, and cannot be removed outside the impeachment process.' Political actors must comply with federal court orders. And "packing" the Supreme Court is wrong. These assumptions are so deeply ingrained in our public consciousness that it rarely occurs to anyone to question them. But a closer look reveals that these "truths" are neither self- evident nor necessary implications of our constitutional text, structure, and history. Instead, these rules of our federal judiciary have emerged over time through the rough …

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Mutua

Makau Mutua

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.

Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an …

Tailored Judicial Selection, Dmitry Bam

Faculty Publications

American states have experimented with different methods of judicial selection for two centuries, creating uniquely American models of selection, like judicial elections, rarely used throughout the rest of the world. But despite the wide range of selection methods in existence throughout the nation, neither the American people nor legal scholars have given much thought to tailoring the selection method to particular levels of the judiciary. To the contrary, the most common approach to judicial selection in the United States is what I call a unilocular, “a judge is a judge,” approach. For most of our nation’s history, all judges within …

Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger

Benjamin L. Berger

This chapter questions the interpretation of religious ­ signs and symbols— and the interpretive possibilities that emerge when we demand more from one another in thinking about such symbols— by ­ examining the question of judges and religious dress in the particular context of the judge’s role as wielding the coercive force of the state through the exercise of criminal punishment. I advance the argument that recent debates have proceeded on a misleadingly simplistic approach to understanding the meaning of signs of religious belonging and identity in this setting and that, with this, we miss an opportunity for a deeper …

Some Thoughts Raised By Magna Carta: The Popular Re-Election Of Judges, William Hamilton Bryson

Law Faculty Publications

This essay, first presented at the Magna Carta anniversary symposium of the Baronial Order of Magna Charta on April 16, 2015, at The Cosmos Club, in Washington, D.C., takes as its inspiration the spirit of the rule of law, as laid down in the Magna Carta. Specifically, the author argues that the popular election and reelection of judges undermines the rule of law, and democracy in general, by exposing judges to the manipulations of financial corruption, political intimidation, and the often irrational shifts in popular opinion. To correct this problem, the author calls for amendment of the thirty-nine state constitutions …

The Broken-Hearted Lover: Erwin Chemerinsky's Romantic Longings For A Mythical Court, Gerald N. Rosenberg

Vanderbilt Law Review

Erwin Chemerinsky is broken hearted. "Almost forty years ago," he writes, "I decided to go to law school because I believed that law was the most powerful tool for social change and that the Supreme Court was the primary institution in society that existed to stop discrimination and to protect people's rights.' Smitten by the Court, Chemerinsky was blind to its historical role as a protector of privilege, and its structural limitations as an agent of progressive social change. Placing the Court on a pedestal, he abstracted it from the culture and the society in which it operates. For decades …

The Irrepressible Myth Of Klein, Howard M. Wasserman

Howard M Wasserman

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …

Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger

Articles & Book Chapters

This chapter questions the interpretation of religious ­ signs and symbols— and the interpretive possibilities that emerge when we demand more from one another in thinking about such symbols— by ­ examining the question of judges and religious dress in the particular context of the judge’s role as wielding the coercive force of the state through the exercise of criminal punishment. I advance the argument that recent debates have proceeded on a misleadingly simplistic approach to understanding the meaning of signs of religious belonging and identity in this setting and that, with this, we miss an opportunity for a deeper …

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin H. Belsky

ConLawNOW

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the “triple whammy” of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Praise Defenders, Not Just Prosecutors, Stephen E. Henderson

Stephen E Henderson

Justice At War: Military Tribunals And Article Iii, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Chief Justice Harry L. Carrico And The Ideal Of Judicial Independence, Rodney A. Smolla

Rod Smolla

Not available.

Public Financing For Non-Partisan Judicial Campaigns: Protecting Judicial Independence While Ensuring Judicial Impartiality, Phyllis Williams Kotey

Akron Law Review

The selection of state court judges in the United States has been the subject of vigorous debate. The controversy continues to build as some scholars contend that only the appointment of judges ensures the independence of the judiciary by insulating the judge from retaliation for unpopular decisions. Yet volumes of evidence unfold each day to reveal a judiciary under attack for making legal albeit unpopular decisions. While the cloak of a lifetime appointment with no effective method of removal does little to instill confidence in the impartiality of the judiciary, an election riddled with partisan rhetoric or one-sided attacks is …

Lawyers' Professional Independence: Overrated Or Undervalued?, Bruce A. Green

Akron Law Review

This article grows out of a presentation on November 9, 2012, as part of the Distinguished Lecture Series of the Akron Law Joseph G. Miller and William C. Becker Center for Professional Responsibility. This article begins with some reflections on the principal meanings of professional independence, as that term is conventionally employed. Part II discusses the bar’s collective independence to regulate its members. Part III discusses individual lawyers’ independence in the context of professional representations, including independence from clients, on one hand, and independence from third parties, on the other. Part IV then suggests that there is a meaning of …

Why The Judicial Elections Debate Matters Less Than You Think: Retention As The Cornerstone Of Independence And Accountability, Layne S. Keele

Akron Law Review

This Article attempts to reframe the age-old judicial election arguments into a discussion about the importance of the retention decision, in order to draw out the areas of true disagreement in the judicial independence/judicial accountability debate. I argue that the core difficulties in balancing the desire for judicial independence with the desire for judicial accountability stem primarily from the judicial retention decision, regardless of whether retention is obtained by some form of reelection or through a form of reappointment. I then propose a two-term system for putting judges on state high courts, in which (1) high court judges sit for …

Chief Justice Maureen O'Connor: A Legacy Of Judicial Independence, Pierce J. Reed

Akron Law Review

An introduction to a special edition of the Akron Law Review, which celebrates the work of Chief Justice Maureen O'Connor during her first decade as a member of the Supreme Court of Ohio.