Judges Commons^™

Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …

The War On Terrorism And The Constitution, Michael I. Meyerson

All Faculty Scholarship

Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …

Eustitia: Institutionalizing Justice In The European Union, Helen E. Hartnell

Publications

The European Union is installing new infrastructure upon which to build a "genuine European area of justice. This "European judicial area" constitutes a key component of the "area of freedom, security and justice" ("AFSJ"). The Amsterdam Treaty added the AFSJ as a dimension of the Union, in order to promote the free movement of persons. "EUstitia" is a neologism that aims to capture both pragmatic and aspirational aspects of this new European governance project. The term is used here to refer solely to the civil law component of the AFSJ. This article both examines EUstitia's key features, and explores the …

Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman

Faculty Scholarship

On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.⁵ When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. …

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Many people rely on mental shortcuts, or heuristics, to make complex decisions, but this sometimes leads to inaccurate inferences, or cognitive illusions. A recent study suggests such cognitive illusions influence judicial decision making.

Judges As Altruistic Hierarchs, Lynn A. Stout

Cornell Law Faculty Publications

No abstract provided.

Brief Of Conference Of Chief Justices As Amicus Curiae Supporting Respondents, Republican Party Of Minnesota V. Kelly, No. 01-521 (U.S. Feb. 19, 2002), ., Roy A. Schotland

U.S. Supreme Court Briefs

No abstract provided.

Getting Right With The Great Chief Justice, R. Kent Newmyer

Faculty Articles and Papers

No abstract provided.

Clarence Thomas: The First Ten Years Looking For Consistency, Mark Niles

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, 10 Wm. & Mary Bill Rts. J. 249 (2002), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

A Note On The Neutral Assignment Of Federal Appellate Judges, Carl W. Tobias

Law Faculty Publications

Response to J. Robert Brown, Jr. & Allison Herren Lee, Neutral Assignment of Judges at the Court of Appeals, 78 Tex. L. Rev. 1037 (2000).

Dear President Bush, Carl W. Tobias

Law Faculty Publications

Professor Tobias offers advice on judicial selection philosophy for the newly-elected President George W. Bush.

Carter's Groundbreaking Appointment Of Women To The Federal Branch: His Other Human Rights Record, Mary Clark

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Paradox Of Judicial Bypass Proceedings, Jamin B. Raskin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Judicial Selection And Political Culture, Jonathan L. Entin

Faculty Publications

This article proceeds in four stages. Part I examines the major rulings, relating to tort reform and school funding, that prompted the harsh and expensive Ohio campaign. Part II compares the process for appointing federal judges, particularly Supreme Court justices, which has also become notably contentious over the past three decades. Part III discusses the trend away from strict limitations on campaign speech by judicial candidates, which combined with the expansive protections afforded to independent expenditures in election campaigns will facilitate sharp rhetoric by those inclined in that direction. Finally, Part IV assesses the prospects for elevating the level of …

Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai

Faculty Scholarship

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …

Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles

Faculty Scholarship

Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as …

Dissenting Opinions: In The Georgia Supreme Court, R. Perry Sentell Jr.

Scholarly Works

Under our system of justice, each jurisdiction necessarily evolves its own distinct tradition of judicial dissent. That evolution's impetus, history, pattern, and results all converge in an informative profile--affording yet another means of studying a state's highest appellate court. A dissent profile of the Georgia Supreme Court thus offers an additional evaluative view of the state's most important judicial cathedral.

Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine

Articles

Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …

Is The Rehnquist Court An "Activist" Court? The Commerce Cause Cases, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called "judicial activism"? To answer this question, we must clarify the meaning of the term "judicial activism." With this meaning in hand, the author examines the Court's Commerce Clause cases. The answer he …

A Goldilocks Account Of Judicial Review?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong …

Antonin Scalia, Baruch Spinoza, And The Relationship Between Church And State, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

I begin with an outline of Spinoza's philosophy on church and state, followed by a demonstration that Scalia is headed in the same direction. I conclude by considering how Spinoza and Scalia might react to recent litigation in South Dakota involving an excommunication from a close-knit religious community, the Hutterite Church.

Myth, Reality Past And Present, And Judicial Elections, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Why do we have judicial elections? A democracy without elections for the legislature and executive (or, in parliamentary systems, for the executive as the leadership of the elected legislators), would be simply inconceivable. But no one would deny that eleven of our states, or many other nations, are democracies even though they do not elect judges. It might follow from that irrefutable, fundamental difference between elections for judges and for other offices, that judicial elections should not-or more to the point, need not-be conducted the same as other elections. Before we soar into debate, let us lay a foundation with …

Judicial Elections And Campaign Finance Reform, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In the judicial realm, the issue of campaign finance cuts across all states that use any form of election as part of their selection or retention system, whether the elections are partisan or non-partisan. The raising of money for campaigns is a task that has to be performed in all states that use any form of election. Like many other things that we have discussed today it seems to involve a sort of balancing act. The state certainly has a strong interest in protecting the integrity of its judiciary and encouraging the public perception of the judiciary as an institution …

Are Judges Motivated To Create "Good" Securities Fraud Doctrine?, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

‘How Do Judges Maximize? (The Same Way Everybody Else Does – Boundedly): Rules of Thumb in Securities Fraud Opinions’, by Stephen M. Bainbridge and G. Mitu Gulati, confronts the reader with a theory about judicial behavior in the face of complex, "unexciting" cases such as those involving securities fraud. The story is simple: few judges find any opportunity for personal satisfaction or enhanced reputation here, so they simply try to minimize cognitive effort, off-loading much of the work that has to be done to their clerks. The evidence that Bainbridge and Gulati offer is the creation of some ten or …

Judicial Campaign Conduct Committees, Roy A. Schotland, Barbara Reed

Georgetown Law Faculty Publications and Other Works

As the other papers presented at this Symposium make abundantly clear, the problems associated with inappropriate statements and conduct during judicial elections are unlikely to abate anytime soon. Bench and bar leaders across the country are being joined by a growing chorus of members of the media and the public in demands that something be done. As an initial step that requires relatively little yet holds great promise, the authors endorse the use of judicial campaign conduct committees as a means of long-term improvement.

Brandeis & Warren's 'The Right To Privacy And The Birth Of The Right To Privacy', Ben Bratman

Articles

Privacy law and conceptions of a right to privacy have, of course, evolved considerably since 1890 when future Supreme Court Justice Louis Brandeis and Boston attorney Samuel Warren penned their now ageless article, The Right to Privacy, 4 Harv. L. Rev. 193, in which they argued the law should recognize such a right and impose liability in tort for intrusions on it. But quite apart from any argument about how attenuated the link might be between Brandeis and Warren's specific proposals and the current state of privacy law, is it fair to say, as so many scholars and judges repeatedly …

Judge Procter Hug, Jr. And Good Judgment, Carl W. Tobias

Law Faculty Publications

Tribute to Judge Procter R. Hug, Jr. upon assuming Senior Status as a United Circuit Judge.

Judicial Mindfulness, Evan R. Seamone

Journal Articles

Like all human beings, judges are influenced by personal routines and behaviors that have become second nature to them or have somehow dropped below the radar of their conscious control. Professor Ellen Langer and others have labeled this general state "mindlessness." They have distinguished "mindful" thinking as a process that all people can employ to gain awareness of subconscious influences, and thus increase the validity of their decisions. In this Article, I establish a theory of "judicial mindfulness" that would guard against two types of "cold" bias when interpreting legal materials. The first harmful bias involves traumatic past events that …

Dissecting Axes Of Subordination: The Need For A Structural Analysis, Darren Lenard Hutchinson

UF Law Faculty Publications

Proceedings of a criminal trial in Dallas, Texas, demonstrate the vulnerability of LGBT individuals to judicial bias. Although the jury convicted the defendant of murdering two gay males, the judge explained his light sentence: "I put prostitutes and gays at about the same level, and I'd be hard put to give somebody life for killing a prostitute . . . had [the victims] not been out there trying to spread AIDS, they'd still be alive today . . . These two guys that got killed wouldn't have been killed if they hadn't been cruising the streets picking up teen-age boys …