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Articles 1 - 14 of 14
Full-Text Articles in Judges
Mirror, Mirror, On The Wall—Biased Impartiality, Appearances, And The Need For Recusal Reform, Zygmont A. Pines
Mirror, Mirror, On The Wall—Biased Impartiality, Appearances, And The Need For Recusal Reform, Zygmont A. Pines
Dickinson Law Review (2017-Present)
The article focuses on a troubling aspect of contemporary judicial morality.
Impartiality—and the appearance of impartiality—are the foundation of judicial decision-making, judicial morality, and the public’s trust in the rule of law. Recusal, in which a jurist voluntarily removes himself or herself from participating in a case, is a process that attempts to preserve and promote the substance and the appearance of judicial impartiality. Nevertheless, the traditional common law recusal process, prevalent in many of our state court systems, manifestly subverts basic legal and ethical norms.
Today’s recusal practice—whether rooted in unintentional hypocrisy, wishful thinking, or a pathological cognitive dissonance— …
Finding Law, Stephen E. Sachs
Finding Law, Stephen E. Sachs
Faculty Scholarship
That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.
This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …
On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen
On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen
Matthew Steilen
This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …
On The Place Of Judge-Made Law In A Government Of Laws, Matthew J. Steilen
On The Place Of Judge-Made Law In A Government Of Laws, Matthew J. Steilen
Journal Articles
This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …
The New Old Legal Realism, Tracey E. George, Mitu Gulati, Ann C. Mcginley
The New Old Legal Realism, Tracey E. George, Mitu Gulati, Ann C. Mcginley
Northwestern University Law Review
No abstract provided.
Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong
Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong
Faculty Articles
The primary focus of this Article is to analyze various process-oriented and structural issues relating to reasoned awards in international commercial arbitration so as to improve the practical and theoretical understanding of international awards. That discussion, which is found in Section IV, considers various factors from both the common law and civil law perspectives so as to take into account the blended nature of international commercial arbitration.
Of course, to be fully comprehensible, the detailed analysis in Section IV must first be put into context. Therefore, Section II describes the difficulties associated with defining a reasoned award in international commercial …
Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen
Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen
Book Chapters
If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …
The Supreme Common Law Court Of The United States, Jack M. Beermann
The Supreme Common Law Court Of The United States, Jack M. Beermann
Faculty Scholarship
The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …
What Appellate Judges Do, Rick Sims
What Appellate Judges Do, Rick Sims
The Journal of Appellate Practice and Process
No abstract provided.
Foreword Evidence Symposium: A Comparative Study Of Federal And New York Evidence Practice, Honorable Frank X. Altimari
Foreword Evidence Symposium: A Comparative Study Of Federal And New York Evidence Practice, Honorable Frank X. Altimari
Touro Law Review
No abstract provided.
An "Internal" Critique Of Justice Scalia's Theory Of Statutory Interpretation, William D. Popkin
An "Internal" Critique Of Justice Scalia's Theory Of Statutory Interpretation, William D. Popkin
Articles by Maurer Faculty
No abstract provided.
A Plea For Help: Pleading Problems In Section 1983 Municipal Liability Claims, Evan S. Schwartz
A Plea For Help: Pleading Problems In Section 1983 Municipal Liability Claims, Evan S. Schwartz
Touro Law Review
No abstract provided.
A Critical Approach To Section 1983 With Special Attention To Sources Of Law, Jack M. Beermann
A Critical Approach To Section 1983 With Special Attention To Sources Of Law, Jack M. Beermann
Faculty Scholarship
The Civil Rights Act of 18711 ("§ 1983") establishes a tort-like remedy for persons deprived of federally protected rights "under color of law."'2 While the statute's broad language provides a remedy for violations of federal constitutional and statutory rights, the statute itself provides little or no guidance regarding important subjects such as the measure of damages, the availability of punitive damages, the requirements for equitable relief, the statute of limitations, survival of claims, proper parties, and immunities from suit.3...
...The first part of this article examines the narrowly "legal" analysis of § 1983 in the cases …
Book Review. The American Doctrine Of Judicial Supremacy, 2nd Ed. By C. G. Haines, Frank Edward Horack Jr.
Book Review. The American Doctrine Of Judicial Supremacy, 2nd Ed. By C. G. Haines, Frank Edward Horack Jr.
Articles by Maurer Faculty
No abstract provided.