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Articles 1 - 12 of 12
Full-Text Articles in Judges
Judicial Selection In Congress' Lame Duck Session, Carl W. Tobias
Judicial Selection In Congress' Lame Duck Session, Carl W. Tobias
Law Faculty Publications
This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.
God, Civic Virtue, And The American Way: Reconstructing Engel, Corinna Barrett Lain
God, Civic Virtue, And The American Way: Reconstructing Engel, Corinna Barrett Lain
Law Faculty Publications
If ever a decision embodied the heroic, counter majoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer-Engel v. Vitale. Engel provoked more outrage, more congres- sionalattemptsto overturnit, andmoreattackson theJusticesthanperhapsany other decision in Supreme Court history. Indeed, Engel's counter majoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case.Itdoesnot. Usingprimary source materials, this Article reconstructs the story of Engel, then explores the implicationsof this reconstructednarrative. Engel is not the countermajoritarian case it seems, but recognizing that allows us to see Engel …
Filling The Federal Appellate Court Vacancies, Carl W. Tobias
Filling The Federal Appellate Court Vacancies, Carl W. Tobias
Law Faculty Publications
Multiple observers have criticized President Barack Obama’s discharge of his Article II constitutional responsibility to nominate and confirm federal judges. Senators have blamed the administration for slowly making nominations, liberals have contended that the executive appointed myriad candidates who are not sufficiently centrist, and conservatives have alleged that President Obama proffered many nominees who could become liberal judicial activists. Despite the sharp criticisms, the President has actually realized much success when nominating and confirming well qualified moderate jurists. President Obama has named more judges than Presidents George W. Bush and Bill Clinton had at this juncture in their tenure, while …
Filling The D.C. Circuit Vacancies, Carl W. Tobias
Filling The D.C. Circuit Vacancies, Carl W. Tobias
Law Faculty Publications
This Article's initial section posits a D.C. Circuit snapshot. Part II surveys all three prospects' confirmations. Part III assesses consequences of, and extracts lessons from, the specific processes recounted. Part IV proffers suggestions for improvement.
Marriage Equality Comes To Virginia, Carl W. Tobias
Marriage Equality Comes To Virginia, Carl W. Tobias
Law Faculty Publications
Part I of this article chronicles marriage equality's rise and development nationally. It ascertains that challenges, which fos- tered the invalidation of marriage prohibitions that essentially govern nearly all jurisdictions, including Virginia, have triggered some controversy. Part II scrutinizes Judge Wright Allen's resolu- tion of the Virginia litigation and the United States Court of Ap- peals for the Fourth Circuit determination, which affirmed her ruling. This portion finds that the district jurist comprehensively assessed the relevant legal and factual issues when striking down the proscription while the Fourth Circuit appropriately upheld her opinion. Part III then derives lessons from the …
Addressing Three Problems In Commentary On Catholics At The Supreme Court By Reference To Three Decades Of Catholic Bishops' Amicus Briefs, Kevin C. Walsh
Addressing Three Problems In Commentary On Catholics At The Supreme Court By Reference To Three Decades Of Catholic Bishops' Amicus Briefs, Kevin C. Walsh
Law Faculty Publications
Much commentary about Catholic Justices serving on the Supreme Court suffers from three related shortcomings: (1) episodic, one-case-at-a-time commentary; (2) asymmetric causal attributions resulting from inattention to cases in which Catholic Justices vote for outcomes opposite those advocated by the Catholic Bishops' Conference; and (3) inattention to broader jurisprudential and ideological factors. This article uses an overlooked resource to identify and counteract these shortcomings. It assesses the votes of the Justices-Catholic and non-Catholic alike-in the full set of cases from the Rehnquist Court and the Roberts Court (through June 2014) in which the United States Conference of Catholic Bishops filed …
Marriage Equality Comes To Wisconsin, Carl W. Tobias
Marriage Equality Comes To Wisconsin, Carl W. Tobias
Law Faculty Publications
Marriage equality has swept America. Numerous federal judges, including Western District of Wisconsin Judge Barbara Crabb, have invalidated state proscriptions on same-sex marriage. This paper scrutinizes U.S. litigation, Crabb’s opinion, Seventh Circuit affirmance, and Supreme Court resolution. Finding that Wisconsin shows how to efficaciously institute full marriage equality, even as other states have not, the piece affords future suggestions.