Judges Commons^™

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with …

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

James T Gathii

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …

The Future Of Federal Law Clerk Hiring, Aaron L. Nielson

Aaron L. Nielson

The market for federal law clerks has been upended. Beginning in 2003, the Federal Judges Law Clerk Hiring Plan was implemented to regulate clerkship hiring. According to the Plan, a judge could not interview or hire a potential law clerk before the beginning of the applicant’s third year of law school. The Plan, however, never worked well, constantly got worse, and has now officially collapsed. Across the country, clerkship hiring once again regularly occurs during the second year of law school. This Article addresses the rise and inevitable fall of the Plan. In particular, it submits that the Plan never …

The Color Of Perspective: Affirmative Action And The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt Ii

Cecil J. Hunt II

This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspective in constitutional race cases. Specifically, it looks at the Court's use of the rhetoric of White innocence in the context of the Court's concern with protecting "innocent" Whites …

Predicting Danger In Immigration Courts, Emily Ryo

Emily Ryo

Procedural Due Process Claims, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Detained: A Study Of Immigration Bond Hearings, Emily Ryo

Emily Ryo

Praise Defenders, Not Just Prosecutors, Stephen E. Henderson

Stephen E Henderson

Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz

Daniel M Katz

No abstract provided.

We, The Judges: The Legalized Subject And Narratives Of Adjudication In Reality Television, 81 Umkc L. Rev. 1 (2012), Cynthia D. Bond

Cynthia D. Bond

At first a cultural oddity, reality television is now a cultural commonplace. These quasi-documentaries proliferate on a wide range of network and cable channels, proving adaptable to any audience demographic. Across a variety of types of "reality" offerings, narratives of adjudication replete with "judges," "juries," and "verdicts"-abound. Do these judgment formations simply reflect the often competitive structure or subtext of reality TV? Or is there a deeper, more constitutive connection between reality TV as a genre and narratives of law and adjudication? This article looks beyond the many "judge shows" popular on reality TV (e.g., Judge Judy') to examine the …

Special Feature: The Future Of Lay Adjudication In Korea And Japan, Hiroshi Fukurai, Valerie P. Hans

Valerie P. Hans

Three years after Korea introduced the jury system for the first time in its history, and two years following the Japanese introduction of a mixed court in which citizen and professional judges decide serious criminal cases, the Second East Asian Law and Society Conference was held on September 30th and October 1st, 2011 in the vibrant city of Seoul, South Korea. This Special Issue of the Yonsei Law Journal offers an opportunity to present work on some of the key issues that were discussed and debated at this remarkable conference. In particular, the special issue offers new research on the …

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Michael Heise

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

The Deceptive Nature Of Rules, Larry Alexander, Emily Sherwin

Emily L Sherwin

No abstract provided.

A Positive Psychological Theory Of Judging In Hindsight, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Jeffrey J. Rachlinski

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Sheri Lynn Johnson

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen

James L. Kainen

During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the …

“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo

Michael L Perlin

Abstract:

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Embodying Law In The Garden: An Autoethnographic Account Of An Office Of Law, Matilda Arvidsson

Dr Matilda Arvidsson

Based on an autoethnographical study of the office of the tingsnotarie this article questions the relation between the ethical self and the act of taking up a judicial office, employing the question of how I can live with (my) law. While the office and the ethical self are kept apart, often by recourse to persona, I make a case for the attendance to the self in examinations of ethical responsibility when pursuing an office of law. I propose that the garden, and in particular the practices and notions of (en)closure, (loss of) direction, cultivation, (dis)order, authorship and care-for-the-other which are …

Decorating The Structure: The Art Of Making Human Law, Brian M. Mccall

Brian M McCall

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

“Onde Está A Felicidade?", Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Poderemos ser felizes? Passamos a maior parte do tempo a trabalhar, no emprego ou em casa, e em Portugal até dormimos cada vez menos. A aproximação à felicidade parece cada vez mais depender de como nos sentirmos no trabalho. E face à dura realidade, poderemos sonhar que todos sejam felizes no trabalho, ou tal será uma quimera?

“Onde Está A Felicidade?", Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Poderemos ser felizes? Passamos a maior parte do tempo a trabalhar, no emprego ou em casa, e em Portugal até dormimos cada vez menos. A aproximação à felicidade parece cada vez mais depender de como nos sentirmos no trabalho. E face à dura realidade, poderemos sonhar que todos sejam felizes no trabalho, ou tal será uma quimera?

“Onde Está A Felicidade", Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Poderemos ser felizes? Passamos a maior parte do tempo a trabalhar, no emprego ou em casa, e em Portugal até dormimos cada vez menos. A aproximação à felicidade parece cada vez mais depender de como nos sentirmos no trabalho. E face à dura realidade, poderemos sonhar que todos sejam felizes no trabalho, ou tal será uma quimera?

Crime Virtuoso, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Neste artigo discute-se o que há de profundo e o que há de circunstancial na mania das fotocópias de livros e os problemas conexos da educação e da edição.

A Home With Dignity: Domestic Violence And Property Rights, Margaret Johnson

Margaret E Johnson

This Article argues that the legal system should do more to address intimate partner violence and each party’s need for a home for several reasons. First, domestic violence is a leading cause of homelessness and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides that continuing to share a home with the person who abused her receives little or no system support, despite the evidence that this decision could most effectively reduce the violence. The legal system’s current failings result from its …

Para Uma Desconstrução Social E Política, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Feira de vaidades, sociedade de enganos, mundo de aparências, a pólis em tempo de crise profunda mostra rostos que não são a sua alma, se é que ainda a tem (e não a vendeu já: por exemplo ao diabo). É preciso olhar raio X para ver através das cortinas de fumo quando, na comunidade política, por um lado se quer parecer o que se não é, ou meramente se pretende demostrar o que se pensa, sem se ter já qualquer veleidade de alterar o que está aí. Quando as consciências morais - ou quem a tal aspire - se limitam …

Vencer A Crise. Ética, Psicologia E Partidos, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Crise e medidas de liofilização e compressão ensurdecem toda a comunicação social. Há contudo que analisar as raízes psicológicas da crise e da crise sobre a crise, e urgentemente regenerar os partidos, sob pena de sempre se ter "mais do mesmo". Ou então muito diferente, porque a obstinação de uns levará à obstinação de outros. E se a II República não mostrar que vale a pena, poderá vir (o diabo não nos oiça) uma anti-república que se chamará IV (porque contará também o Estado Novo) a tentar resolver tudo à força.

Not Only ‘Who Decides’: The Rhetoric Of Conflicts Over Judicial Appointments, Fernando Muñoz

Fernando Muñoz

This article looks at the conflicts surrounding the appointment of constitutional judges, focusing not so much on the characteristics of particular candidates but on the debates that they give rise to. Who are the actors in these conflicts? What arguments do they employ? What are their agendas? What is at stake in these disputes?