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Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin Jan 2019

Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin

Washington University Global Studies Law Review

Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions ...


Judging Well, Francis J. Mootz Iii Jan 2019

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory, Miriam Galston Jan 2019

Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory, Miriam Galston

Washington University Jurisprudence Review

Much has been written about Obergefell v. Hodges, holding that

same-sex marriage is protected by the Fourteenth Amendment. Virtually

all commentators view the decision as an example of an increasingly

polarized Supreme Court.

This article challenges that characterization by analyzing Kennedy’s

majority opinion and Roberts’ dissent in Obergefell in light of the legal

theories of H. L. A. Hart and Lon Fuller. The article argues that, from a

legal theory perspective, Kennedy and Roberts exhibit numerous, often

surprising commonalities. In addition, Kennedy’s arguments seem to

accurately reflect the methodology he explicitly endorses. Roberts, in

contrast, seems to exaggerate ...


Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham Jan 2018

Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham

Washington University Jurisprudence Review

This essay mounts an immanent critique of Dworkin’s defense of judicial review. Taking Dworkin’s methodology of constructive interpretation as my starting point, I argue that when analyzing the role that political institutions play in democracy, Dworkin fails to take his own method far enough. In particular, he limits his constructive interpretation of democracy to the practice of voting, overlooking the distinctive democratic values implicit within the institutions and practices of legislation by representative assembly. Ironically, given his well-known critique of majoritarian democracy, this failure leads Dworkin to adopt majoritarianism as a starting point when assessing particular institutions. A ...


Confirming Supreme Court Justices In A Presidential Election Year, Carl Tobias Jan 2017

Confirming Supreme Court Justices In A Presidential Election Year, Carl Tobias

Washington University Law Review

Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post. Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service, and pledged to nominate a replacement “in due time,” contending that eleven months remained in his administration for confirming a worthy successor. Obama admonished that the President had a constitutional duty to nominate a superlative aspirant to the vacancy, which must ...


A Tribute To Judge Barry S. Schermer: Judge, Teacher, Friend & The Lessons Learned, Sandra F. Louis Jan 2017

A Tribute To Judge Barry S. Schermer: Judge, Teacher, Friend & The Lessons Learned, Sandra F. Louis

Washington University Journal of Law & Policy

This Article recounts the many lessons shared by those who have studied and worked under Judge Barry Schermer. Louis revisits her time as a former clerk and the recent anecdotes shared at a symposium in honor of Judge Schermer’s thirty years of services as a bankruptcy judge, summarizing the professional skills they all learned. The author also includes the practical lessons she learned under Judge Schermer, with subjects including travel, food, and enjoying the process.


Prisoners And Pleading, Richard H. Frankel, Alistair E. Newbern Jan 2017

Prisoners And Pleading, Richard H. Frankel, Alistair E. Newbern

Washington University Law Review

Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than 92 percent of those actions were filed pro se. Pro se prisoners frequently use—and in many districts are required to use— standardized complaint forms provided by the federal judiciary. These standard forms were created in the 1970s at the recommendation of a committee of federal judges seeking to more effectively manage prisoner litigation and reduce its burdens on the federal courts. Although complaint forms have been in use for nearly forty years and are now commonplace in almost every federal district, no one, until ...


Wittgenstein’S Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum Jan 2017

Wittgenstein’S Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum

Washington University Jurisprudence Review

Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia’s death has created. “Public meaning” originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these “New Originalists” have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested—that is, we often do not seek semantic or legal agreement—makes particular linguistic indeterminacies highly ...


Nino & Sonia: The Dark Horse Heroes Of Criminal Justice On The Roberts Court, Shahrzad Daneshvar, Brooke Clason Smith Jan 2017

Nino & Sonia: The Dark Horse Heroes Of Criminal Justice On The Roberts Court, Shahrzad Daneshvar, Brooke Clason Smith

Washington University Journal of Law & Policy

This Article traces the voting records of the Supreme Court justices in criminal cases during the Roberts court to determine whether a justice’s perceived liberal or conservative ideology can help predict whether a justice’s vote would be sympathetic toward a criminal defendant. Daneshvar and Smith particularly analyzed whether the justices voted consistently with their perceived ideology, where liberal justices are believed to be more sympathetic toward criminal defendants and conservative justices more unsympathetic. By analyzing the voting patterns of the court from 2009 through the 2014 term, Daneshvar and Smith find that in criminal cases Justice Sonia Sotomayor ...


Barry Schermer: His Consumer Bankruptcy Greatest Hits, Wendell J. Sherk, Kathy A. Surratt-States Jan 2017

Barry Schermer: His Consumer Bankruptcy Greatest Hits, Wendell J. Sherk, Kathy A. Surratt-States

Washington University Journal of Law & Policy

This Article reflects on major decisions given by Judge Barry Schermer in the field of consumer bankruptcy. Sherk and Surrat-States focus on In re Copman, In re Wilmsmeyer, In re Mitchell, and In re Long, and how Judge Schermer’s decisions and influence were helpful within and beyond the Eastern District of Missouri Bankruptcy Court. The Article concludes Judger Schermer has had an important role in shaping the niche are of consumer bankruptcy law over his thirty years of tenure.


Law Schools At Founding And Today, Russell K. Osgood, Jacob Glickfield Jan 2017

Law Schools At Founding And Today, Russell K. Osgood, Jacob Glickfield

Washington University Journal of Law & Policy

This Essay offers a historical perspective detailing the development of Missouri’s Constitution and the history of common law legal education by focusing on the founding of the Washington University Law Department. The authors address some suggestions by other scholars on how to modernize education including conversion to a two-year curriculum. While reflecting on the past, the authors suggest that a longer, but non-rigid, curriculum may be the only feasible way to structure legal education and offers several alternative structures for modern legal education. They discuss the pros and cons of their proposal, highlighting the need for social discussion concerning ...


My Favorite Case To Teach: A Literal “Gateway” For Students To Learn Contract Formation, Contract Terms, And Legal Realism, Daniel Keating Jan 2017

My Favorite Case To Teach: A Literal “Gateway” For Students To Learn Contract Formation, Contract Terms, And Legal Realism, Daniel Keating

Washington University Journal of Law & Policy

This Essay explains the continued relevance of the issues discussed in Hill v. Gateway 2000, Inc. twenty years later. Keating describes his approach to teaching the case in his classroom, highlighting the broad and narrow issues under Article 2 of the Uniform Commercial Code implicated by the underlying facts. Keating disagrees with the outcome of the case, but praises its value as a teaching tool for sales contract formation and broader policy issues in the legal system.


Former Roberts Court Clerks’ Success Litigating Before The Supreme Court, Adam Feldman Jan 2017

Former Roberts Court Clerks’ Success Litigating Before The Supreme Court, Adam Feldman

Washington University Journal of Law & Policy

This Article examines whether former Roberts Court clerks have a litigating advantage before their former bosses. Feldman’s findings suggest these clerks do have an advantage, but only under certain circumstances. The Article finds that former Roberts Court clerks have about an even chance of receiving votes from the Justices for or against the positions they argue. Feldman concludes it is when these former clerks argue positions ideologically aligned with their former Justices, they enhance their chance of success above this fifty percent threshold.


The Path To Obergefell: Saying “I Do” To New Judicial Federalism?, Christine L. Nemacheck Jan 2017

The Path To Obergefell: Saying “I Do” To New Judicial Federalism?, Christine L. Nemacheck

Washington University Journal of Law & Policy

This Article analyses the significant role of state laws had helping shape the Supreme Court’s landmark decision for same-sex marriage in Obergefell v. Hodges. Nemacheck connects this success to a judicial federalism proposed by Justice Brennan in 1977, in which Brennan identified the process for protecting individual rights by litigating cases at the state court level. The Article identifies strategies from same-sex marriage advocates of first attaining protections at the state level, then move litigation toward to the Supreme Court once a significant numbers of states had approved. The author cites this state-level strategy as the necessary groundwork for ...


The Cerebral Hercules And The Bankruptcy Hydra: How Judge Schermer Slayed A Multi-Headed Monster While Deep In The Heart Of Texas (And What Any Of This Lone Star State-Grecian Hero Analogy Has To Do With Just A Little Bit Of Yiddish), Charles E. Rendlen Iii, Abigail B. Willie Jan 2017

The Cerebral Hercules And The Bankruptcy Hydra: How Judge Schermer Slayed A Multi-Headed Monster While Deep In The Heart Of Texas (And What Any Of This Lone Star State-Grecian Hero Analogy Has To Do With Just A Little Bit Of Yiddish), Charles E. Rendlen Iii, Abigail B. Willie

Washington University Journal of Law & Policy

This Article revisits Judge Barry Schermer’s approaches to complex matters as a bankruptcy mediator. In Part I, Judge Rendlen explains Judge Schermer’s jurisprudence while mediating the particularly complicated Chapter 11 bankruptcy case, In re U.S. Fidelis, Inc., which helped attain a decision that prevented the estate’s assets drying up in litigation and protect hundreds of thousands of victims of deceptive practices by U.S. Fidelis. In Part II, Willie attests to Judge Schermer’s humanity, which allows him to focus on important underlying matters rather than simply attaining a resolution.


How Not To Use The Involuntary Bankruptcy Process, Michael A. Friedman Esq., Allison R. Day Jan 2017

How Not To Use The Involuntary Bankruptcy Process, Michael A. Friedman Esq., Allison R. Day

Washington University Journal of Law & Policy

This Article evaluates the issues arising under 11 U.S.C. § 303, which governs involuntary bankruptcies. The Authors being by presenting an overview of commencing an involuntary bankruptcy case, as highlighted by the lengthy litigation inspired by Rosenberg v. DVI Receivable XVII, LLC and its dismissal. The Article concludes that the current state of § 303 can open additional litigation replete with costs, awards, fees, and other bad-faith damages, and creditors should exercise caution before pursuing involuntary bankruptcy, especially it it’s likely to fair for meeting the statutory requirements.


What Makes A Good Teacher?, David L. Going Jan 2017

What Makes A Good Teacher?, David L. Going

Washington University Journal of Law & Policy

This Article explores Judge Barry Schermer’s approach to teaching, both in the courtroom and in the classroom. Going recounts some of his interactions before Schermer during his practice as well as teaching alongside him at Washington University School of Law. The Author narrows on Schermer’s performance as an animated and committed teacher, as well as his kind and approachable demeanor, as ways of drawing both students and advocates into the intricacies of bankruptcy law.


Lessons Learned While Clerking, Darrell W. Clark Jan 2017

Lessons Learned While Clerking, Darrell W. Clark

Washington University Journal of Law & Policy

This Article explores some of the important lessons learned by a former law clerk of Judge Barry Schermer. Clark attributes many of the “soft skills” he learned in his legal career to Judge Schermer, and shares those with younger colleagues. The Author concludes Schermer’s advice on being practical, including delegating tasks and preparing for court, also taught him the professionalism he learned in his early days after law school.


Mortgages & Mentoring: My Career With Judge Barry S. Schermer, Cynthia Kern Woolverton Jan 2017

Mortgages & Mentoring: My Career With Judge Barry S. Schermer, Cynthia Kern Woolverton

Washington University Journal of Law & Policy

This Article reflects on the lessons learned and taught by one of Judge Barry Schermer’s co-teachers. Woolverton focuses on teaching the fundamentals of Chapter 13 bankruptcy, including confirming a plan, secured claims, and interest charged, and, along with Judge Schermer, has students apply these complicated concepts to hypothetical situations. The Author recognizes Judge Schermer’s ability to break down these topics in a way that makes them more understandable to a new generation of students and practitioners.


Judge Schermer’S Top Ten Topics To Teach, Daniel Keating Jan 2017

Judge Schermer’S Top Ten Topics To Teach, Daniel Keating

Washington University Journal of Law & Policy

This Article reviews the top topics under Chapter 11 bankruptcy reorganization Judge Schermer teaches to his law school students. Keating, a co-teacher of Judge Schermer’s for almost 30 years, compiled these topics from years of lecture notes, meetings, and observations of matters that excited Judge Schermer. The Author concludes that such topics under Chapter 11, including refusals to deal and the automatic stay, only cover a small fraction of Judge Schermer’s enthusiasm for teaching and bankruptcy law, with additional lists possibly needed to include other areas of his interest, such as consumer bankruptcy.


A Tribute To Those Who Helped Me Get Here, Barry S. Schermer Jan 2017

A Tribute To Those Who Helped Me Get Here, Barry S. Schermer

Washington University Journal of Law & Policy

This Article includes personal reflections from United States Bankruptcy judge for the Eastern District of Missouri and judge for the Bankruptcy Appellate Panel for the Eighth Circuit Judge Barry S. Schermer after 30 years of judicial service. Judge Schermer recalls his days as a practitioner and bankruptcy trustee, which shaped his interests toward applying for his first judgeship. Judge Schermer also recognizes the co-teachers, legal clerks and interns, and support staff that have filled his decades of jurisprudence and scholarship.


Wherefore Moot Court?, Richard E. Finneran Jan 2017

Wherefore Moot Court?, Richard E. Finneran

Washington University Journal of Law & Policy

This Essay, by Richard E. Finneran, adjunct professor and moot court coach at Washington University School of Law, extols the benefits of participating in moot court programs and offers tips how to instruct students to become better appellate advocates. Finneran underscores the value of studying oral advocacy, particularly as the decline in popularity studying and teaching the art of oral argument is reflected in the lack of quality exhibited by some advocates. Finneran does not attribute this lack of quality on the innate skills of an advocate, but rather places the onus on educators to teach moot court students the ...


What We Want In A Judge, T. J. Mullin Jan 2017

What We Want In A Judge, T. J. Mullin

Washington University Journal of Law & Policy

This Article recognizes the current state of bankruptcy courts and the qualities that make Judge Barry Schermer a quintessential figure in adjudicating these types of cases. Mullin describes important qualities needed in a bankruptcy judge including morality and integrity, as well as versatility and predictability, among others. The Author confirms these qualities in Judge Schermer, as well the additional qualities of patience and the ability to reverse a decision he feels was incorrect.


The Examiner – Back To The Future, Lloyd A. Palans Jan 2017

The Examiner – Back To The Future, Lloyd A. Palans

Washington University Journal of Law & Policy

This Article examines the role Judge Barry Schermer played in crafting the role of an examiner under the then-new Bankruptcy Code section 1104(c). Palans revisits Jude Schermer’s appointment of an examiner and the parameters given to that role in In re Apex Oil. The Author concludes Judge Schermer’s authorization to give an examiner a flexible role, empowered in the interest of assisting the parties involved, was a forward-thinking way of setting up an investigator and mediator for the efficient administration of justice.


Judge Schermer And The Creation Of The United States Bankruptcy Appellate Panel For The Eighth Circuit, Robert J. Kressel Jan 2017

Judge Schermer And The Creation Of The United States Bankruptcy Appellate Panel For The Eighth Circuit, Robert J. Kressel

Washington University Journal of Law & Policy

This Article examines the influence Judge Barry Schermer had on the then-newly created United States Bankruptcy Appellate Panel for the Eighth Circuit. Judge Kressel begins by noting the unique role the Appellate Panel has, as it has concurrent jurisdiction with the district court of appeals from the bankruptcy courts in the circuit, and not all circuits have these panels. The Author concludes Schermer’s dedication to bankruptcy law helped shape the roles of these panels, which is further suggested by Judge Schermer’s recent appointment to a fourth seven-year term in this role.


Barry S. Schermer: Lessons In Life And Law, Tom K. O'Loughlin Ii Jan 2017

Barry S. Schermer: Lessons In Life And Law, Tom K. O'Loughlin Ii

Washington University Journal of Law & Policy

The Article recounts some judicial and life lessons attributed to Judge Barry Schermer. O’Loughlin recounts his initial and subsequent interactions with Judge Schermer in Cape Girardeau, Missouri, and how these moments have shown the Author a bevvy of important things to keep in mind in his practice.


The Three Giants Of Bankruptcy Law In St. Louis, David A. Warfield Jan 2017

The Three Giants Of Bankruptcy Law In St. Louis, David A. Warfield

Washington University Journal of Law & Policy

This Article reviews the significant roles three Washing University School of Law alumni had in shaping bankruptcy law—Jay L. Torrey, Walter D. Coles, and Barry Schermer. The Author notes Torrey’s contributions to the very first national permanent bankruptcy statute, Coles’s almost four decades of influence as a referee under the Bankruptcy Act of 1898, and Schermer’s contemporary contributions to bankruptcy law. The Article notes how these three individuals and their work span the almost 125 years of bankruptcy law across the country.


Judge Barry S. Schermer: A Teacher Of Law And Of Life, Emily K. Cohen Jan 2017

Judge Barry S. Schermer: A Teacher Of Law And Of Life, Emily K. Cohen

Washington University Journal of Law & Policy

This Article reflects on lessons learned from Judge Barry Schermer from one of his current law clerks. Cohen recalls her experiences with Judge Schermer while a student at Washington University School of Law, and how his teaching styles influenced her to pursue bankruptcy law. The author recounts many of the legal skills emphasized by Judge Schermer’s collaborative and team-centered environment, but as well as the personable aspects of his practice that maintain his well-regarded reputation in the legal community.


Recalibrating The Scales Of Municipal Court Justice In Missouri: A Dissenter’S View, Kimberly Jade Norwood Jan 2016

Recalibrating The Scales Of Municipal Court Justice In Missouri: A Dissenter’S View, Kimberly Jade Norwood

Washington University Journal of Law & Policy

This Article examines the inefficiencies of Missouri municipal courts that came into sharp focus following the killing of Michael Brown by Officer Darren Wilson in Ferguson, Missouri. Norwood details and expands on her lone dissent in the Final Report of the Municipal Division Work Group—a group created by the Missouri Supreme Court to address the alleged abuses of black and poor residents in Missouri. Norwood argues for consolidating failing municipal courts to create larger, more functional, and just courts.


Lawyers Serving As Judges, Prosecutors, And Defense Lawyers At The Same Time: Legal Ethics And Municipal Courts, Peter A. Joy Jan 2016

Lawyers Serving As Judges, Prosecutors, And Defense Lawyers At The Same Time: Legal Ethics And Municipal Courts, Peter A. Joy

Washington University Journal of Law & Policy

This Article analyzes the intersection between judges, prosecutors, and defense attorneys in St. Louis County and the State of Missouri. Joy explores ethical issues that arise when attorneys practice concurrently in these areas and outlines potential solutions for violations. Joy argues that municipal judges should be prohibited from serving as prosecutors and defense attorneys and for restrictions preventing lawyers from serving as both a prosecutor and defense attorney in the same county.