Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 55
Full-Text Articles in Judges
Racial Revisionism, Shaun Ossei-Owusu
Racial Revisionism, Shaun Ossei-Owusu
Michigan Law Review
A Review of The Enigma of Clarence Thomas. by Corey Robin.
In Defense Of (Circuit) Court-Packing, Xiao Wang
In Defense Of (Circuit) Court-Packing, Xiao Wang
Michigan Law Review Online
Proposals to pack the Supreme Court have gained steam recently. Presidential candidate Pete Buttigieg endorsed a court-packing plan at the start of his campaign, and several other candidates also indicated a willingness to consider such a plan, including Senators Elizabeth Warren and Amy Klobuchar. Legal scholars have similarly called upon Congress to increase the size of the Supreme Court, particularly following the heated confirmations of Justices Neil Gorsuch and Brett Kavanaugh. These suggestions for Court reform have only gotten more pronounced with the recent passing of Justice Ruth Bader Ginsburg, the subsequent nomination of Judge Amy Coney Barrett, and the …
The Passion Of John Paul Stevens, Linda Greenhouse
The Passion Of John Paul Stevens, Linda Greenhouse
Michigan Law Review
Review of John Paul Stevens' The Making of a Justice: Reflections on My First 94 Years.
Textualism For Realists, Ian Samuel
Textualism For Realists, Ian Samuel
Michigan Law Review
Review of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.
Both Sides Of The Rock: Justice Gorsuch And The Seminole Rock Deference Doctrine, Kevin O. Leske
Both Sides Of The Rock: Justice Gorsuch And The Seminole Rock Deference Doctrine, Kevin O. Leske
Michigan Journal of Environmental & Administrative Law
Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case.
Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the …
Why The Burger Court Mattered, David A. Strauss
Why The Burger Court Mattered, David A. Strauss
Michigan Law Review
A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.
Arguing With Friends, William Baude, Ryan D. Doerfler
Arguing With Friends, William Baude, Ryan D. Doerfler
Michigan Law Review
Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.
Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the …
Thin Rationality Review, Jacob Gersen, Adrian Vermeule
Thin Rationality Review, Jacob Gersen, Adrian Vermeule
Michigan Law Review
Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an …
The Good, The Bad, And The Ugly: Reflections Of A Counterclerk, Gil Seinfeld
The Good, The Bad, And The Ugly: Reflections Of A Counterclerk, Gil Seinfeld
Michigan Law Review First Impressions
Everyone has strong feelings about Justice Scalia. Lionized by the political right and demonized by the left, he has been among the most polarizing figures in American public life over the course of the last halfcentury. It is hardly surprising, then, that in the weeks since Justice Scalia’s death, the public discourse surrounding his legacy has exhibited something of a split personality. There have, of course, been plenty of appropriately respectful—even admiring—tributes from some of the Justice’s ideological adversaries; and here and there one of the Justice’s champions has acknowledged, with a hint of lament, the acerbic quality of some …
Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich
Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich
Michigan Journal of Environmental & Administrative Law
The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure …
Six Overrulings, Andrew Koppelman
Six Overrulings, Andrew Koppelman
Michigan Law Review
John Paul Stevens, who retired in 2010 at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books, gives high-profile interviews, wrote a memoir of the chief justices he has known, and has now written a second book. Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional …
Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts, Aaron P. Brecher
Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts, Aaron P. Brecher
Michigan Law Review
Uberfans of the federal judiciary owe a lot to David Dorsen. His illuminating biography of Judge Henry Friendly is a fitting tribute to the contributions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well, and most authors choose to focus on Supreme Court justices. But Henry Friendly, Greatest Judge of His Era is an excellent source of information on Friendly’s life and, far more important, his views on the law and his relationships with some of the most fascinating figures …
Justice Brennan: Legacy Of A Champion, Dawn Johnsen
Justice Brennan: Legacy Of A Champion, Dawn Johnsen
Michigan Law Review
During the 1980s, when the Court's approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices' values and views, and bemoaned the public's utter lack of attention to the Court and judicial appointments. President Ronald Reagan's Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the "critical" yet "often overlooked" "values and philosophies" of federal judges. Professor Laurence Tribe similarly introduced a historical analysis of the Court's vital role by describing Justices' "powerful, if often …
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla
Michigan Journal of Race and Law
Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard …
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
Michigan Law Review
Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Michigan Law Review
Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …
On Dworkin And Borkin, Tom Lininger
On Dworkin And Borkin, Tom Lininger
Michigan Law Review
This Essay will use Dworkin's and Davis's scholarship as a jumping-off point for a discussion of the Supreme Court nomination process. I argue that while Dworkin's and Davis's books, when read together, expose a significant problem with the current nomination process, a possible solution to this predicament may lie in a change to the judicial code of ethics and the procedural rules for confirmation of judges. My analysis will proceed in four steps. Part I will address Dworkin's arguments. Part II will evaluate the analysis and evidence in Davis's book. Part III will consider an additional variable to which neither …
Brown And Lawrence (And Goodridge), Michael J. Klarman
Brown And Lawrence (And Goodridge), Michael J. Klarman
Michigan Law Review
One year shy of the fiftieth anniversary of Brown v. Board of Education, the Justices issued another equality ruling that is likely to become a historical landmark. In Lawrence v. Texas, the Court invalidated a state law that criminalized same-sex sodomy. This article contrasts these historic rulings along several dimensions, with the aim of shedding light on how Supreme Court Justices decide cases and how Court decisions influence social reform movements. Part I juxtaposes Brown and Lawrence to illustrate how judicial decisionmaking often involves an uneasy reconciliation of traditional legal sources with broader social and political mores and …
Through The Lens Of Diversity: The Fight For Judicial Elections After Republic Party Of Minnesota V. White, Sherrilyn A. Ifill
Through The Lens Of Diversity: The Fight For Judicial Elections After Republic Party Of Minnesota V. White, Sherrilyn A. Ifill
Michigan Journal of Race and Law
This Article is directed at the ongoing discussion taking place in many states and among members of the bench and bar about whether states that elect judges should switch to appointment in light of White. The author argues that states should resist what he regards as the Court's heavy-handed dicta denouncing judicial elections in White. Rather than accede to the pressure to shift from an elective to an appointive system-pressure that is being felt in several states- the author contends that states should regard the White decision as an opportunity to engage in a thorough and far-reaching review …
Does A Diverse Judiciary Attain A Rule Of Law That Is Inclusive?: What Grutter V. Bollinger Has To Say About Diversity On The Bench, Sylvia R. Lazos Vargas
Does A Diverse Judiciary Attain A Rule Of Law That Is Inclusive?: What Grutter V. Bollinger Has To Say About Diversity On The Bench, Sylvia R. Lazos Vargas
Michigan Journal of Race and Law
This Article concludes that political dialogue engendered by controversial minority judicial nominations, like those of Miguel Estrada and Janice Rogers Brown, could be an avenue to educating the polity as to why it is important to achieve greater minority representation on the bench. The pluralistic process-based model of judging advocates that a critical mass of diverse judges be achieved, not that the minority judges be liberal rather than conservative, communitarian rather than individualist, or Democrat rather than Republican. The goal is that there be a critical mass of minority judges on benches that make decisions as a group, like circuit …
Textualism, The Unknown Ideal?, William N. Eskridge Jr.
Textualism, The Unknown Ideal?, William N. Eskridge Jr.
Michigan Law Review
In May 1997, the New York Knickerbockers basketball team was poised to reach the finals of its division in the National Basketball Association (NBA). The Knicks led the rival Miami Heat by three games to two and needed one more victory to win the best-of seven semifinal playoff series. Game six would be in New York; with their star center, Patrick Ewing, playing well, victory seemed assured for the Knicks. A fracas during game five changed the odds. During a fight under the basket between Knicks and Heat players, Ewing left the bench and paced in the middle of the …
Pragmatism And Parity In Appointments, Yxta Maya Murray
Pragmatism And Parity In Appointments, Yxta Maya Murray
Michigan Journal of Gender & Law
This review uses Carter's two foci as a springboard for analyzing the Article II, Section II appointment process. First, Carter's discussion of indecency in modern appointments may be a valuable theoretical insight into the process instead of a mere sociological observation. "Indecency" in appointments, or what is known as "borking" in Carter parlance, may also be a symptom of race and gender bias in the administration of the Article II, Section II power. To ameliorate the effects of this bias, I suggest the incorporation of pragmatism (a thread of philosophical and legal thought) and parity concepts into the existing appointments …
Justice Lewis F. Powell And The Jurisprudence Of Centrism, Mark Tushnet
Justice Lewis F. Powell And The Jurisprudence Of Centrism, Mark Tushnet
Michigan Law Review
A Review of Justice Lewis F. Powell, Jr by John C. Jeffries, Jr.
Hugo Black Among Friends, Dennis J. Hutchinson
Hugo Black Among Friends, Dennis J. Hutchinson
Michigan Law Review
A Review of Hugo Black: A Biography by Roger K. Newman
Justice Oliver Wendell Holmes: Law And The Inner Self, Michael A. Carrier
Justice Oliver Wendell Holmes: Law And The Inner Self, Michael A. Carrier
Michigan Law Review
A Review of Justice Oliver Wendell Holmes: Law and the Inner Self by G. Edward White
Reply: Self-Incrimination And The Constitution: A Brief Rejoinder To Professor Kamisar, Akhil Reed Amar, Renée B. Lettow
Reply: Self-Incrimination And The Constitution: A Brief Rejoinder To Professor Kamisar, Akhil Reed Amar, Renée B. Lettow
Michigan Law Review
A Reply to Yale Kamisar's Response to the "Fifth Amendment Principles: The Self-Incrimination Clause"
Fifth Amendment First Principles: The Self-Incrimination Clause, Akhil Reed Amar, Renée B. Lettow
Fifth Amendment First Principles: The Self-Incrimination Clause, Akhil Reed Amar, Renée B. Lettow
Michigan Law Review
In Part I of this article, we examine the global puzzle of the Self-Incrimination Clause and the local confusion or perversion lurking behind virtually every key word and phrase in the clause as now construed. In Part II we elaborate our reading of the clause and show how it clears up the local problems and solves the overall puzzle.
A Biography Of The Second Justice Harlan, Louis R. Cohen
A Biography Of The Second Justice Harlan, Louis R. Cohen
Michigan Law Review
A Review of John Marshall: Great Dissenter of the Warren Court by Tinsley E. Yarbrough
Abe Fortas: A Biography, Michael F. Colosi
Abe Fortas: A Biography, Michael F. Colosi
Michigan Law Review
A Review of Abe Fortas: A Biography by Laura Kalman
The Parable As Legal Scholarship, G. Edward White
The Parable As Legal Scholarship, G. Edward White
Michigan Law Review
A Review of Two Jewish Justices: Outcasts in the Promised Land by Robert Burt