Judges Commons^™

How Are You Holding Up? The State Of Judges' Well-Being: A Report On The 2019 National Judicial, Terry Maroney, David X. Swenson, Joan Bibelhausen, David Marc

Vanderbilt Law School Faculty Publications

Judges have always faced significant stressors, including the burden of consequential decision-making, exposure to disturbing evidence, and isolation. While every judicial assignment has its own mix of concerns, challenge is a constant. Recurrent experiences of serious stressors place judges at risk of burn-out, secondary trauma, poor mental and physical health, and substance use disorders.

Historically, such issues have been addressed primarily in the context of judicial fitness - that is, only when individual judges were suffering to the degree that they could no longer competently perform their duties would the system respond, and then usually for the purpose of discipline …

To Preserve, Release, And Litigate: Dimensions Of Executive Branch Transparency, Tracey E. George

Vanderbilt Law School Faculty Publications

The Trump campaign and presidency were marked by multiple controversies centered on transparencyor the lack thereof. Prior to his election, then‐candidate Donald Trump broke with presidentialcampaign norms by refusing to release his tax returns. Attempts by Democratic‐controlled Housecommittees and Democratic New York state officials to access President Trump's tax records werecontested by Trump at every stage. The resulting court battles lasted throughout his presidency andeventually reached the U.S. Supreme Court.The Trump White House also broke with the Obamaadministration's practice of releasing White House visitor logs, removing from public view the record ofwho visited the White House and when (Kennedy,2017). At …

The Ghost Of John Hart Ely, Ryan D. Doerfler, Samuel Moyn

Vanderbilt Law Review

The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no …

What’S The Deference? Interpreting The U.S. Sentencing Guidelines After Kisor, Liam Murphy

Vanderbilt Law Review

For more than three decades, the U.S. Sentencing Guidelines have constrained the punishment doled out by federal judges, limiting discretion that was once nearly unlimited and bringing standardization to the penological decisionmaking process. For twice as long, the Supreme Court has constrained judges in a different way—by requiring that administrative agencies receive deference when they interpret the meaning of their own regulations. At the convergence of these two domains sits “commentary,” or interpretive notes the U.S. Sentencing Commission appends to the otherwise congressionally approved Guidelines. In Stinson v. United States, the Court made clear that commentary should be reviewed and …

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James Blumstein

Vanderbilt Law School Faculty Publications

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But …

Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset

Vanderbilt Law Review

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we have misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not …

Judicial Temperament Explained, Terry Maroney

Vanderbilt Law School Faculty Publications

Why do we care about judicial temperament? The basic logic is that temperament is an underlying factor that produces behaviors, some desired and some not. The behaviors most often cited as evidence of a good temperament — displays of courtesy, patience, level-headedness, and caring — are desirable because they advance procedural justice. They make litigants, attorneys, and the public feel heard and understood, foster respect for the courts, and — when displayed to fellow judges — advance collegiality. In contrast, the behaviors most often cited as evidence of a poor temperament — outsized or misplaced anger displays, discourtesy, impatience, and …

The Future Of Supreme Court Reform, Ganesh Sitaraman, Daniel Epps

Vanderbilt Law School Faculty Publications

For a brief moment in the fall of 2020, structural reform of the Supreme Court seemed like a tangible possibility. After the death of Justice Ruth Bader Ginsburg in September, some prominent Democratic politicians and liberal commentators warmed to the idea of expanding the Court to respond to Republicans’ rush to confirm a nominee before the election, despite their refusal four years prior to confirm Judge Merrick Garland on the ground that it was an election year. Though Democratic candidate Joe Biden won the Presidency in November, Democrats lost seats in the House and have a majority in the Senate …

Many Minds, Many Mdl Judges, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

My focus here is on a cost that has been surprisingly neglected by scholars but may be the greatest cost of them all: the accurate adjudication of legal claims and defenses. I suspect it is intuitive to most of us that asking one person to decide something instead of inviting many other people to weigh in probably reduces the quality of the resulting decision. There is a literature that formalizes this intuition called "many-minds" scholarship. It proceeds from a famous mathematics proof known as the Condorcet Jury Theorem. Although some people have questioned the applicability of many-minds theories to legal …

Statistical Precedent: Allocating Judicial Attention, Ryan W. Copus

Vanderbilt Law Review

The U.S. Courts of Appeals were once admired for their wealth of judicial attention and for their generosity in distributing it. At least by legend, almost all cases were afforded what William Richman and William Reynolds have termed the “Learned Hand Treatment.” Guided by Judge Learned Hand’s commandment that “[t]hou shalt not ration justice,” a panel of three judges would read the briefs, hear oral argument, deliberate at length, and prepare multiple drafts of an opinion. Once finished, the judges would publish their opinion, binding themselves and their colleagues in accordance with the common-law tradition. The final opinion would be …

Judging Judicial Appointment Procedures, S. I. Strong

Vanderbilt Journal of Transnational Law

Over the last several years, judicial appointment procedures in the United States have become increasingly intractable. Members of both parties are seen to engage in political gamesmanship, calling the legitimacy of the appointment process into question and decreasing public confidence in both the legislature and the judiciary. Questions are even beginning to arise about whether and to what extent the United States is complying with the rule of law.

Although numerous solutions have been proposed, one alternative has not yet been considered: international law. As paradoxical as it may seem, the best and perhaps only feasible solution to quintessentially domestic …

Standing, Still? The Evolution Of The Doctrine Of Standing In The American And Israeli Judiciaries: A Comparative Perspective, Joshua Hoyt

Vanderbilt Journal of Transnational Law

The doctrine of standing plays an important role in limiting the classes of cases or controversies that are appropriate for judicial resolution; considered with other justiciability doctrines, judicial standing necessarily reflects the broader role of the court in society. Though the American judiciary had rather generous standing policies in place at the time of the founding, with the rise of the administrative state in the aftermath of the New Deal, progressive justices saw fit to restrict judicial standing as a means of insulating regulatory programs from industry challenge. In contradistinction, the young Israeli society has some of the most accessible …

(What We Talk About When We Talk About) Judicial Temperament, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judicial temperament is simultaneously the thing we think all judges must have and the thing that no one can quite put a finger on. Extant accounts are scattered and thin, and either present a laundry list of desirable judicial qualities without articulating what (if anything) unifies the list or treat temperament as a fundamentally mysterious quality that a judge either does or does not have. Resting so much—selection, evaluation, discipline, even removal—on such an indeterminate concept is intellectually and practically intolerable. Polarized debates over Justice Kavanaugh’s fitness to sit on the Supreme Court made clear just how badly we need …

Empirically Investigating Judicial Emotion, Terry A. Maroney

Vanderbilt Law School Faculty Publications

The empirical study of judicial emotion has enormous but largely untapped potential to illuminate a previously underexplored aspect of judging, its processes, outputs, and impacts. After defining judicial emotion, this article proposes a theoretical taxonomy of approaches to its empirical exploration. It then presents and analyses extant examples of such research, with a focus on how the questions they ask fit within the taxonomy and the methods they use to answer those questions. It concludes by identifying areas for growth in the disciplined, data-based exploration of the many facets of judicial emotion.

Proposed Reforms To Texas Judicial Selection: Panelist Remarks, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

I am going to set the stage by providing a little background about the various methods that States around the country use to select their judges. I am also going to remind us of many of the considerations that we like to think about when we are deciding which of these methods is best. And I am going to push upon you a new consideration that is sometimes not thought about in these discussions as well as share some data regarding this last consideration. But let’s start with some background about the selection methods.

There are basically four different ways …

Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati

Vanderbilt Law Review

Given that there is significant variation across the states in terms of whether death examination offices are run by trained professionals or local politicians, we should, in theory, be able to empirically test the question of whether professionals or politicians do a better job of adjudicating death. It turns out that, although there are strong opinions about what the answer surely is, there has been little in the way of serious empirical work addressing this question. Our Article takes a first cut at looking at how one might do that analysis.

Public Perceptions Of Gender Bias In The Decisions Of Female State Court Judges, Michael P. Fix, Gbemende E. Johnson

Vanderbilt Law Review

How are women on the bench, and their decisions, perceived by the public? Many scholars find that gender influences the voting behavior of judges and the assessment of judges by state judicial systems and the American Bar Association. However, few scholars have examined how judge gender affects the way in which the public responds to judicial outcomes. Does the public perceive the decisions of female state court judges as being "biased" by their gender identity, particularly in cases involving reproductive rights/family law? Also, does the public view female judges on state courts as more likely to rely on ideology when …

Measuring Justice In State Courts: The Demographics Of The State Judiciary, Tracey E. George, Albert H. Yoon

Vanderbilt Law Review

For most individuals and organizations, state courts--especially state trial courts-are the "law" for all effective purposes. State courts are America's courts. But, we know surprisingly little about state court judges despite their central and powerful role in lawmaking and dispute resolution. This lack of information is especially significant because judges' backgrounds have important implications for the work of courts. The characteristics of those who sit in judgment affect the internal workings of courts as well as the external perception of those courts and judges. The background of judges will influence how they make decisions and can impact the public's acceptance …

Introduction: The Effects Of Selection Method On Public Officials, Clayton J. Masterman

Vanderbilt Law Review

State and local governments have long struggled to design optimal mechanisms for selecting public officials. Centuries of experimentation have left us with several techniques: election (partisan or otherwise), political appointment, or selection by some kind of technocratic commission. Despite our extensive experience with these systems, no consensus has emerged as to which system is best under what circumstances. Several questions remain unclear: What effect does selection method have on the quality of services that public officials provide? Does selection method systematically affect the ideological composition of officials? If so, does that effect matter? And what determines whether a jurisdiction adopts …

Introduction: The Power Of New Data And Technology, Laura E. Dolbow

Vanderbilt Law Review

Modern technology has revolutionized the law. Computers drastically expanded the scope and speed of access to legal information. Unlike the days when lawyers had to climb ladders in the stacks to find specific statutes or cases in printed reporters, Westlaw brings up thousands of resources at the touch of a fingertip. Beyond transforming legal research, new data and technology have transformed the law in two other powerful ways: they have made the law more accessible to nonlawyers, and they have made it possible for lawyers to gather information about how the law is being executed. The articles in this Section …

The Effects Of Trial Judge Gender And Public Opinion On Criminal Sentencing Decisions, Christina L. Boyd, Michael J. Nelson

Vanderbilt Law Review

We explore the effects of a trial judge's gender in criminal sentencing decisions by addressing two unsettled questions. First, do female and male trial judges sentence criminal offenders differently from one another? While numerous qualitative and quantitative scholars have examined this question, the results lack consistency. Second, are female trial judges' sentencing practices differentially affected by public opinion compared to male judges' behavior? Little research exists on this second question, but existing theory on how females and males make decisions and operate as judges is informative. To provide new empirical insight into these questions, we rely on two sources of …

Judicial Laterals, Jonathan R. Nash

Vanderbilt Law Review

Lawyers already in practice at one law firm often move to another law firm. This type of move is referred to as "lateraling." A lawyer might choose to lateral for many of the reasons we often think people in general take new positions: better job security, better pay, better benefits, greater prestige, more interesting work, better future job prospects, more leisure time, and/or more predictable hours.' In contrast to lawyers in private practice, we do not commonly associate judges with lateraling. But the fact is that, just as some judges are reassigned or promoted within a judicial system (for example, …

Judicial Politics And Decisionmaking: A New Approach, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Vanderbilt Law Review

In twenty-five different experiments conducted on over 2,200 judges, we assessed whether judges' political ideology influences their resolution of hypothetical cases. Generally, we found that the political ideology of the judge matters, but only very little. Across a range of bankruptcy, criminal, and civil cases, we found that the aggregate effect of political ideology is either nonexistent or amounts to roughly one quarter of a standard deviation. Overall, the results of our experiments suggest that judges are not "politicians in robes."

The Ideological Consequences Of Selection: A Nationwide Study Of The Methods Of Selecting Judges, Brian T. Fitzpatrick

Vanderbilt Law Review

How best to select judges has been the subject of great debate ever since the founding of the United States. Over the course of American history, four basic methods of selection have been tried (with some variations among them): appointment by elected officials, partisan election, nonpartisan election, and selection by a technocratic commission.' The first three methods will be familiar to most readers: gubernatorial or legislative appointment of judges, contested elections with party affiliation on the ballot, and contested elections without party affiliation on the ballot. But readers may be less familiar with the last method: many states today use …

I Dissent: The Federal Circuit's "Great Dissenter," Her Influence On The Patent Dialogue, And Why It Matters, Daryl Lim

Vanderbilt Journal of Entertainment & Technology Law

This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation's principal patent court from empirical, doctrinal, and policy perspectives. It offers several insights into how the Federal Circuit reaches consensus and when it does not, serving as a window into its inner workings, a reference to academics, judges, and attorneys alike. More broadly, this Article provides a template to study the "legal dialogue" of other judges at the Federal Circuit, those in other Circuits, as well as those in other areas of the law. …

The Ideological Consequences Of Selection: A Nationwide Study Of The Methods Of Selecting Judges, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

One topic that has gone largely unexplored in the long debate over how best to select judges is whether there are any ideological consequences to employing one selection method versus another. The goal of this study is to assess whether certain methods of selection have resulted in judiciaries that skew to the left or right compared with the public at large in those states. In particular, I examine the ideological preferences of state appellate judges in all 50 states over a 20-year period (1990-2010) as measured by their relative affiliation with the Republican or Democratic Party through campaign contributions, voter …

Judicial Politics And Decisionmaking: A New Approach, Chris Guthrie, Andrew J. Wistrich, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

In twenty-five different experiments conducted on over 2,200 judges, we assessed whether judges' political ideology influences their resolution of hypothetical cases. Generally, we found that the political ideology of the judge matters, but only very little. Across a range of bankruptcy, criminal, and civil cases, we found that the aggregate effect of political ideology is either nonexistent or amounts to roughly onequarter of a standard deviation. Overall, the results of our experiments suggest that judges are not "politicians in robes."

Justice Scalia And Class Actions, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

I have been asked to write an essay on Justice Scalia's class action jurisprudence and although I suspect many readers will find this surprising because the Justice is so often linked to constitutional law, I actually think that his class action jurisprudence may be where his opinions leave some of the biggest marks. To be as blunt about it as the Justice himself would have been: for better or for worse, I am not sure any other Justice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did.

The Justice …

The Management Of Staff By Federal Court Of Appeals Judges, Mitu Gulati, Richard A. Posner

Vanderbilt Law Review

Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have externs as well (law students working part time without pay). These staffs are essential, given judicial workloads and judges'limitations. Yet not much is known about how the judges manage their staffs. Each judge knows, of course, but judges rarely exchange information about staff management. Nor is there, to our knowledge, a literature that attempts to compare and evaluate the varieties of staff management techniques employed by federal court of appeals judges. This Essay aims to fill that gap. It is based …

Parsing The Behavioral And Brain Mechanisms Of Third-Party Punishment, Owen D. Jones, Matthew Ginther, Richard J. Bonnie, Morris B. Hoffman, Francis X. Shen, Kenneth W. Simons, Rene Marois

Vanderbilt Law School Faculty Publications

The evolved capacity for third-party punishment is considered crucial to the emergence and maintenance of elaborate human social organization and is central to the modern provision of fairness and justice within society. Although it is well established that the mental state of the offender and the severity of the harm he caused are the two primary predictors of punishment decisions, the precise cognitive and brain mechanisms by which these distinct components are evaluated and integrated into a punishment decision are poorly understood.

Using a brain-scanning technique known as functional magnetic resonance imaging (fMRI), we implemented a novel experimental design to …