Judges Commons^™

Women As Judges At International Criminal Tribunals, Milena Sterio

Law Faculty Articles and Essays

This Article analyzes the presence of female judges within international criminal tribunals, starting with the Yugoslavia and Rwanda Tribunals in the 1990s. In particular, the Article discusses specific numbers of female judges at the Yugoslavia and Rwanda Tribunals, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the newly created Kosovo Specialist Chambers, and the International Criminal Court.

While the presence of women as prosecutors, defense attorneys, victim representatives, and other professionals at these tribunals is equally important, this Article focuses on the number of female judges, as such data …

Certiorari In Patent Cases, Christa J. Laser

Law Faculty Articles and Essays

In the decade from 2010 to 2019, the Supreme Court has decided more patent law cases than in the prior three decades combined. A higher percentage of its docket has been patent cases--5.45%--than in any decade in the last century. A number of scholars have advanced theories of why this rate of review of patent cases has increased and provided quantitative analyses. Yet no scholarship to date has used qualitative data to investigate why the Supreme Court’s patent docket is increasing and what factors the Supreme Court considers in its review of patent cases. This paper shares statistics of the …

Statutory Realism: The Jurisprudential Ambivalence Of Interpretive Theory, Abigail R. Moncrieff

Law Faculty Articles and Essays

In the renaissance of statutory interpretation theory, a division has emerged between "new purposivists," who argue that statutes should be interpreted dynamically, and "new textualists," who argue that statutes should be interpreted according to their ordinary semantic meanings. Both camps, however, rest their theories on jurisprudentially ambivalent commitments. Purposivists are jurisprudential realists when they make arguments about statutory meaning, but they are jurisprudential formalists in their views of the judicial power to engage in dynamic interpretation. Textualists are the inverse; they are formalistic in their understandings of statutory meaning but realistic in their arguments about judicial power. The relative triumph …

The Faith And Morals Of Justice Antonin Scalia, David Forte

Law Faculty Articles and Essays

It is because of Justice Scalia's suspicion of philosophy and of history that he becomes an outspoken textualist. But why should text carry greater authority? Why should the written word, rather than evolving tradition, be of higher authority, particularly to a Roman Catholic? To understand Antonin Scalia's affirmation of the centrality of text, we must, as many already have, seek to find out how the man viewed his religion and how he practiced it.

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

Law Faculty Articles and Essays

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.

In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in …

The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment's "rule requiring notice."

Congress authorized these "sneak and peek" warrants in the USA Patriot Act of 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5601 in 2012, suggesting that "sneak and peek" searches are becoming alarmingly common. In fact, it is not at all clear whether true "sneak …

Selecting The Very Best: The Selection Of High-Level Judges In The United States, Europe And Asia, Christa J. Laser, Tefft Smith, Michael Fragoso, Christopher Jackson, Gregory Wannier

Law Faculty Articles and Essays

This paper has been prepared by Kirkland & Ellis LLP for the Due Process of Law Foundation (“DPLF”), an organization dedicated to promoting and strengthening the rule of law and the respect for human rights in the Americas. The goal is to provide further stimulus to the enhancement of due process and the rule of law in Latin America by encouraging the transparent, merit-based selection and appointment of competent, independent, and impartial judges. An independent and impartial judiciary is an essential precondition to the effective operation of the rule of law, with due process for all. This, in turn, is …

Book Review: "Taking Law Seriously" A Review Of Reading Law: The Interpretation Of Legal Texts, By Antonin Scalia And Bryan A. Garner, David F. Forte

Law Faculty Articles and Essays

No abstract provided.

Transcript: The Case For National Political (Rather Than State Or Judicial) Regulation Of Healthcare, Abigail R. Moncrieff

Law Faculty Articles and Essays

One place where judges are becoming increasingly involved is in dormant Commerce Clause cases, and it would have been possible to issue the exact same holding in Sorrell by using dormant commerce analysis. To make the exact same challenge (it would have been up to the litigants, but) it would have been possible to present a similar challenge on dormant Commerce Clause grounds and to have said that this creates uneven regulation for pharmaceutical companies that need to craft different marketing approaches for different states according to different rules about what kinds of data they're allowed to use and not …

Stare Decisis In The Inferior Courts Of The United States, Joseph Mead

Law Faculty Articles and Essays

While circuit courts are bound to fallow circuit precedent under "law of the circuit" the practice among federal district courts is more varied and uncertain, routinely involving little or no deference to their own precedent. I argue that the different hierarchical levels and institutional characteristics do not account for the differences in practices between circuit and district courts. Rather, district courts can and should adopt a "law of the district" similar to that of circuit courts. Through this narrow proposal, I explore the historical stare decisis practices in federal courts that are not Supreme.

The Politicization Of Judicial Elections And Its Effect On Judicial Independence, Matthew W. Green Jr., Susan J. Becker

Law Faculty Articles and Essays

This article presents the proceedings of the Cleveland-Marshall College of Law Symposium, The Politicization of Judicial Elections and Its Effect on Judicial Independence and LGBT Rights, held October 21, 2011. The idea for the conference stemmed from the November 2010 Iowa judicial election, in which three justices were voted out of office as a result of joining a unanimous ruling, Varnum v. Brien, that struck down, on equal protection grounds, a state statute limiting marriage rights to heterosexual couples. The conference addresses whether the backlash that occurred in Iowa after the Varnum decision might undermine judicial independence in jurisdictions where …

The Closing Of The Judicial Mind, David F. Forte

Law Faculty Articles and Essays

Reviews of R.F. Nagel, Unrestrained: Judicial Excess and the Mind of the American Lawyer, Transaction Publishers (2008) and R. Posner, How Judges Think, Harvard University Press (2008)

Fathers, Foreskins, And Family Law, Dena S. Davis

Law Faculty Articles and Essays

In the United States, a custodial parent has the right and responsibility to make medical decisions for one's child. But does that right encompass consenting for a surgical procedure for which there is little or no medical justification? What if the noncustodial parent opposed the procedure? And when is a child old enough to make the decision for him- or herself? How should a physician respond when asked to perform a surgical procedure when the decision is enmeshed in family controversy? These and other questions are considered in Boldt, a recent family law case decided by the Supreme Court of …

Moral Ambition: The Sermons Of Harry A. Blackmun, Dena S. Davis

Law Faculty Articles and Essays

Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. The public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this "Service of Death and Resurrection" was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on "The Churchmanship of Harry Blackmun." Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice's many contributions, Holmes noted a sermon that Blackmun had once preached on …

Who Was William Marbury?, David F. Forte

Law Faculty Articles and Essays

Of all the disappointed office seekers in American history, only William Marbury has been so honored as to have his portrait hung in the chambers of the United States Supreme Court alongside that of James Madison. The two titular protagonists to the Marbury v. Madison dispute had no idea that their original contretemps would ever find its way to litigation, let alone eventual mythic significance as the foundation stone of judicial review.

Right To Talk: Has Justice Antonin Scalia Compromised His Objectivity With A Public Remark?, Lloyd B. Snyder

Law Faculty Articles and Essays

With two assisted suicide cases scheduled for argument before the Supreme Court this term, Justice Antonin Scalia already has publicly staked out his position on the issue. While sentiments he expressed in 1990 in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, are well-known, Scalia told an audience at Catholic University late last year that it is "absolutely plain there is no [constitutional] right to die." Is it proper for sitting judges to make such statements? While no one would deny Scalia his First Amendment right to say what he pleases, that hardly quells concerns about the advisability …

Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs

Law Faculty Articles and Essays

I would like to use the writings of Moses as a lens to examine some challenges in judging. Moses authored the first five books of the Old Testament known as the Pentateuch or books of the law--Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. He is probably best known for leading the Hebrew people out of bondage in Egypt and for receiving the Ten Commandments. As our discussion today will reveal, he may also be credited with authoring some significant principles with respect to the judicial function.

John Marshall And The Moral Basis For Judicial Review, David F. Forte

Law Faculty Articles and Essays

During the last two decades, many observers have been disappointed in some of the appointments to the federal bench and in the judicial philosophies some judges have brought with them. But if we turn to the source of our constitutional order, we would find in the example of John Marshall the moral basis for the judicial craft.

Lunch With Frank Battisti, David F. Forte

Law Faculty Articles and Essays

Memorial tribute to Judge Frank Battisti

A Government By Judges: An Historical Re-View, Michael Henry Davis

Law Faculty Articles and Essays

In 1921, Edouard Lambert, a professor of law at Lyon specializing in comparative studies and founder of an Institute of Comparative Law there, published a book, Le Gouvernement des judges et la lutte contra la legislation sociale aux Etats-Unis, thus singlehandedly creating the phrase, a "government of judges", to denote a truly unconstrained system of judicial review which could not be limited even by constitutional amendment. The phrase quickly entered the parlance of French public law and even that of popular culture, deriving much of its force, no doubt, from the historical French aversion to a strong judiciary, eventually becoming …

Constraints Of Power: The Constitutional Opinions Of Judges Scalia, Bork, Posner, Easterbrook, And Winter, James G. Wilson

Law Faculty Articles and Essays

This article completes a two-part series studying the constitutional jurisprudence of Judges Antonin Scalia, Richard Posner, Robert Bork, Frank Easterbrook, and Ralph Winter Jr., five conservative academics appointed by President Reagan to the United States Court of Appeals. Judge Scalia has recently been appointed to the Supreme Court of the United States. In a previous article, published in the last issue of the University of Miami Law Review, I evaluated these five jurists' constitutional scholarship by contrasting their views with those of Edmund Burke, the originator of political conservative theory. That article tested Burke's wariness of political abstractions and his …

The Law/Politics Distinction, The French Conseil Constitutionnel, And The U.S. Supreme Court, Michael H. Davis

Law Faculty Articles and Essays

A dispute burns across the landscape of French constitutional law regarding the juridical nature of the French constitutional "Supreme Court", the Conseil constitutionnel: is it a court? Both French and American scholars have claimed that, despite superficial similarities between the U.S. Supreme Court and the French Conseil constitutionnel, the American system of judicial review "can have no counterpart in the French system", that French legal and political theory is inconstistent with an effective supreme court, that there is "no possibility" that the French and American systems could surmount this "major difference", and that the Conseil is simply not a "true …

Perceptions Of Judicial Responsibility: The Views Of The Nine United States Supreme Court Justices As They Consider Claims In Fourteenth Amendment Noncriminal Cases: A Post-Bakke Evaluation, Arthur R. Landever

Law Faculty Articles and Essays

In this article, the author sketches each Justice by examining his expressed attitudes and silent concurrences in fourteenth amendment noncriminal cases, as well as his remarks in other, non-court settings. While judicial behavioralists have employed quantitative techniques focusing upon analysis of voting records, the author believes that use of the lawyer's traditional method--case and opinion examination-is more appropriate here. Each Justice's composite should tell us not only something about the individual Justice's views, but also something about the views of key blocs on the Court. By such an effort, we learn more about the range of the possible in urging …