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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 ...


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 ...


Noise Reduction: The Screening Value Of Qui Tam, Anthony J. Casey, Anthony Niblett Jan 2014

Noise Reduction: The Screening Value Of Qui Tam, Anthony J. Casey, Anthony Niblett

Washington University Law Review

Whistle-blowing mechanisms have long been recognized and used as tools to encourage the revelation of hidden information. The information sought is often evidence of otherwise undetectable fraud. An effective mechanism will be one that best deters such fraud. To do this, the mechanism needs to produce high-quality information that is not otherwise lost in the noise of low-quality information. In this paper, we present a model to explore how the use of a court-centric qui tam mechanism as opposed to an agency-driven mechanism can improve whistle-blowing along these dimensions.

We compare two leading mechanisms that have been implemented in high-profile ...


A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux Jan 2014

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Washington University Law Review

No abstract provided.


Managerial Judging And Substantive Law, Tobias Barrington Wolff Jan 2013

Managerial Judging And Substantive Law, Tobias Barrington Wolff

Washington University Law Review

In this Article, I examine the interface between substantive law and managerial judging. My aim is not to criticize the dominant strain of current scholarship, with its focus on endogenous values in the practice of judging. That work has posed important questions that have properly captured the attention of Academy, Bar and Bench. It is rather to ground that ongoing discussion in a richer account of the role that substantive legal policy can and should play in defining the role of the judge, constraining judicial options in some cases, and legitimizing judicial initiative in others.


Legislative Oversight Of A Bill Of Rights: A Way To Rectify Judicial Activism, Duane L. Ostler Jan 2013

Legislative Oversight Of A Bill Of Rights: A Way To Rectify Judicial Activism, Duane L. Ostler

Washington University Law Review

The term ―judicial activism has become a common part of modern American political speech, though it remains ambiguous and can often mean many different things. It most commonly applies to judicial decisions that exceed judicial authority on issues that otherwise would be decided by the legislature and is most frequently invoked when some aspect of the bill of rights is litigated.

Political leaders in both parties have condemned judicial activism, particularly where it threatens their party‘s ideology. For example, in 1968 Richard Nixon stated, "I want men on the Supreme Court who are strict constructionists, men that interpret the ...


The Irrelevance Of Politics For Arbitrary And Capricious Review, Mark Seidenfeld Jan 2012

The Irrelevance Of Politics For Arbitrary And Capricious Review, Mark Seidenfeld

Washington University Law Review

This Article contends that, properly understood, judicial review of agency action under the reasoned decision-making standard precludes a court from considering political influence, but nonetheless allows an agency to consider it. It does so by identifying two fundamental attributes of such review, as courts have traditionally applied it, that have eluded scholarly focus and perhaps recognition altogether. The first attribute is that agency reasons, which are what courts review, are justifications rather than motivations for agency action. From this attribute, it follows that the irrelevance of politics for judicial review does not preclude politics as a legitimate agency consideration. The ...


“Chōsakan”: Research Judges Toiling At The Stone Fortress, Masako Kamiya Jan 2011

“Chōsakan”: Research Judges Toiling At The Stone Fortress, Masako Kamiya

Washington University Law Review

The Article describes the role of research judges in the Supreme Court of Japan. It outlines the functions of research judges under Article 57 of the Judiciary Act of 1947 which engage in research necessary for trial and adjudication of a court case. It highlights the supplementary provisions to Article 57 which include the appointment of instructors at the Legal Research and Training Institute (LRTI).


The Supreme Court Of Japan: Commentary On The Recent Work Of Scholars In The United States, Tokiyasu Fujita Jan 2011

The Supreme Court Of Japan: Commentary On The Recent Work Of Scholars In The United States, Tokiyasu Fujita

Washington University Law Review

In this Article, the author discusses the issues involving the Supreme Court of Japan (SCJ). It outlines the scholarly works of American law professors John O. Haley and David S. Law which focuses on the Japanese fiduciary. It stresses the gap between the perceived image and the reality of the Japanese fiduciary.


The Supreme Court And The Push For Transparency In Lower Court Appointments In Japan, Daniel H. Foote Jan 2011

The Supreme Court And The Push For Transparency In Lower Court Appointments In Japan, Daniel H. Foote

Washington University Law Review

An Article on the responsibility of the Japanese Supreme Court in the selection and appointment of lower court judges is presented. It highlights the articles from law professors which addresses the appointment of judges including Lawrence Repeta and J. Mark Ramseyer. It stresses the need to increase the transparency in the lower court appointment process.


Reserved Seats On Japan's Supreme Court, Lawrence Repeta Jan 2011

Reserved Seats On Japan's Supreme Court, Lawrence Repeta

Washington University Law Review

The Article examines the decision on the allocation of seats to private attorneys and scholars in the Japanese Supreme Court. It outlines the reallocation of reserved seats during the term of Chief Justice Ishida Kazuto from 1969 to 1973. It stresses the institutionalization of an appointment pattern designed to limit the individual rights declared in the Japanese Constitution.


Judicial Recruitment And Promotion: Responses To Professors Ramseyer And Repeta, Shin-Ichi Nishikawa Jan 2011

Judicial Recruitment And Promotion: Responses To Professors Ramseyer And Repeta, Shin-Ichi Nishikawa

Washington University Law Review

In this Article, the author comments on the issues addressed by law professors J. Mark Ramseyer and Lawrence Repeta about the appointment of judges in the Japanese Supreme Court. He stresses the difficulty in measuring the productivity of judges as a basis for judicial appointment. He outlines the significant role of the Advisory Committee for Appointing Justices of the Supreme Court in providing a list of judicial candidates.


Concerning The Japanese Public's Evaluation Of Supreme Court Justices, Tokuji Izumi Jan 2011

Concerning The Japanese Public's Evaluation Of Supreme Court Justices, Tokuji Izumi

Washington University Law Review

The Article focuses on the author's views concerning the decision of the Japanese Supreme Court towards the election of members in the House of Representatives and the House of Councilors. It highlights the Japanese Election Law which regulates the election of members in the Upper and Lower Houses. It stresses the disparities in voting power in large cities which violate the equality guarantee of the Japanese Constitution.


Judges Who Settle, Hillary A. Sale Jan 2011

Judges Who Settle, Hillary A. Sale

Washington University Law Review

This Article develops a construct of judges as gatekeepers and a set of principles to guide them in policing aggregate and derivative litigation. Part I provides an introduction to this type of litigation and the role of judges as agency cost monitors. Part II contrasts the “solutions” of this type of litigation with its costs, and explores an area not developed in the legal literature—the agency issues on the defendants' side of the cases. The development of the role of defense counsel and their collusion with plaintiffs' counsel illuminates the need for judges to perform their gatekeeping role. Part ...


Introduction: Decision Making On The Japanese Supreme Court, David S. Law Jan 2011

Introduction: Decision Making On The Japanese Supreme Court, David S. Law

Washington University Law Review

The Article discusses various reports published within the issue including one by Shigenori Matsui on the abandonment of the task of the Supreme Court of Japan (SCJ) in performing judicial review, one by Stephen Givens on the court rulings of several cases involving corporate laws and another one by Hiroshi Itoh on the factors affecting the decision making of the SCJ.


Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui Jan 2011

Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui

Washington University Law Review

The Article explores the development of a conservative constitutional jurisprudence by the Japanese Supreme Court. It describes the process and the power of judicial review in the country. It stresses the reluctance of Japanese judges to consider the Constitution of Japan as a source of positive law to be enforced by the judiciary.


A Reply To Elena Kagan Can't Say That: The Sorry State Of Public Discourse Regarding Constitutional Interpretation, Eric J. Segall Jan 2010

A Reply To Elena Kagan Can't Say That: The Sorry State Of Public Discourse Regarding Constitutional Interpretation, Eric J. Segall

Washington University Law Review

Written in the form of a fictional memo by Elena Kagan to the President of the U.S., this commentary offers a reply to the fictional memo by the President’s Counsel arguing that the President should not allow Justice Kagan to proceed with her remarks. The memo concedes the Counsel’s view that conservatives have succeeded in establishing the view that there are two types of judges: the liberal, activist and the conservative judge. The memo argues that Justice Kagan’s statement would offer a persuasive case against the conservative agenda, suggesting that neither the left nor the right ...


Elena Kagan Can't Say That: The Sorry State Of Public Discourse Regarding Constitutional Interpretation, Neil J. Kinkopf Jan 2010

Elena Kagan Can't Say That: The Sorry State Of Public Discourse Regarding Constitutional Interpretation, Neil J. Kinkopf

Washington University Law Review

Written in the form of a fictional memo by Counsel to the President, Ray Politik, this commentary offers a reply to a fictional opening statement for Justice Kagan’s confirmation hearing. The proposal argues that Justice Kagan’s statement is strategically misguided and should not be understood as a “teaching moment”. The commentary argues that conservatives have succeeded in cementing the idea that there are two types of judges: the liberal, activist judge and the conservative judge. Finally, the hypothetical statement suggests that Justice Kagan’s proposed statement would brand her as a judicial activist, casting into doubt her prospects ...


Kimbrough, Spears, And Categorical Rejection: The Latest Additions To The Family Of Federal Sentencing Policy Cases, Sophia A. Vandergrift Jan 2010

Kimbrough, Spears, And Categorical Rejection: The Latest Additions To The Family Of Federal Sentencing Policy Cases, Sophia A. Vandergrift

Washington University Law Review

No abstract provided.


Justice Souter And The Civil Rules, Scott Dodson Jan 2010

Justice Souter And The Civil Rules, Scott Dodson

Washington University Law Review

On April 30, 2009, after almost twenty years on the U.S. Supreme Court, Justice David Hackett Souter announced his retirement. A quiet personality never comfortable in the D.C. spotlight (except, perhaps,during his confirmation hearings), Justice Souter was rarely characterized as a force on the Court. No doubt his legacy will be marked in large part — and perhaps unfairly — by his membership in the Planned Parenthood of Southeastern Pennsylv ania v. Casey troika and his apparent Blackmun-like slide while on the Court from conservative to liberal (at least, as relative to the Court as a whole). Despite his ...


What Elena Kagan Could Have And Should Have Said (And Still Have Been Confirmed), Eric J. Segall Jan 2010

What Elena Kagan Could Have And Should Have Said (And Still Have Been Confirmed), Eric J. Segall

Washington University Law Review

Written in the form of a fictional memo by Elena Kagan to the President of the U.S., this commentary offers a proposed opening statement for the confirmation hearing of the Supreme Court Justice nominee. The proposal includes a consideration of Justice Kagan’s previous comments concerning confirmation hearings and a disclosure of her views on specific constitutional questions. The commentary also addresses the tension between judicial activism and restraint, acknowledging the application of both the law and personal judgment. Finally, the hypothetical statement suggests the educative benefit of transparency as opposed to judicial silence concerning substantive issues raised during ...


Diversity And The Federal Bench, Carl Tobias Jan 2010

Diversity And The Federal Bench, Carl Tobias

Washington University Law Review

Justice Sonia Sotomayor's appointment was historic. She is the first Latina Supreme Court member and President Barack Obama's initial appointment. Her confirmation is the quintessential example of his commitment to increasing ethnic and gender diversity in the judiciary; it epitomizes how the administration has nominated and appointed people of color and women to the appellate and district courts. Enhancing diversity honors valuable goals. Selection across a presidency's initial fifteen months also creates the tone. These ideas suggest that the nascent administration's judicial selection merits evaluation, which this Article conducts. Part I briefly assesses modern chief executives ...


Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, Pat K. Chew, Robert E. Kelley Jan 2009

Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, Pat K. Chew, Robert E. Kelley

Washington University Law Review

In this Article, we present an exploratory empirical study of federal workplace racial harassment cases that span a twenty-year period. Multiple analyses found that judges' race significantly affects outcomes in workplace racial harassment cases. African American judges rule' differently than white judges, even when one takes into account their political affiliation or certain characteristics of the case. Our findings further suggest that judges of all races are attentive to the relevant facts of the cases but may reach different conclusions depending on their races. When race, political affiliation, and certain case characteristics are all considered simultaneously, the role that race ...


Oral Advocacy Before The United States Supreme Court: Does It Affect The Justices' Decisions?, Timothy R. Johnson, James F. Spriggs Ii, Paul J. Wahlbeck Jan 2007

Oral Advocacy Before The United States Supreme Court: Does It Affect The Justices' Decisions?, Timothy R. Johnson, James F. Spriggs Ii, Paul J. Wahlbeck

Washington University Law Review

Our empirical investigation focuses on two areas. First, we are interested in the quality of the oral advocacy presented to the Court, especially in terms of its etiology, as well as its effectiveness. We investigate these questions empirically by utilizing notes taken by Blackmun during oral arguments while he sat on the Court. Specifically, we here utilize the grades that Justice Blackmun assigned to each attorney’s oral arguments. This information allows us to answer two related questions: (1) why do some attorneys make better arguments before the Court; and (2) does the quality of oral advocacy influence who wins ...


Docketology, District Courts, And Doctrine, David A. Hoffman, Alan J. Izenman, Jeffrey R. Lidicker Jan 2007

Docketology, District Courts, And Doctrine, David A. Hoffman, Alan J. Izenman, Jeffrey R. Lidicker

Washington University Law Review

Empirical legal scholars have traditionally modeled trial court judicial opinion writing by assuming that judges act rationally, seeking to maximize their influence by writing opinions in politically important cases. To test such views, we collected data from a thousand cases in four different jurisdictions. We recorded information about every judicial action over each case’s life, ranging from the demographic characteristics, workload, and experience of the writing judge; to information about the case, including its jurisdictional basis, complexity, attorney characteristics, and motivating legal theory; to information about the individual orders themselves, including the relevant procedural posture and the winning party ...


Wiley Rutledge, Executive Detention, And Judicial Conscience At War, Craig Green Jan 2006

Wiley Rutledge, Executive Detention, And Judicial Conscience At War, Craig Green

Washington University Law Review

John Ferren’s Salt of the Earth, Conscience of the Court is the first full biography of Rutledge, and the book not only lifts Rutledge from obscurity’s shadow; it also dispels any “limbo” surrounding the Court he served. Part I of this Article offers a brief biographical sketch showing that Rutledge deserves that much. His pre-judicial life as dean, legal reformer, and advocate of progressive politics provides context for his work on the bench. Also, Rutledge’s tale illuminates broader issues, including FDR’s transformative judicial appointments, early twentieth-century legal education, and the New Deal’s influence on both ...


Why Are Federal Judges So Acquittal Prone?, Andrew D. Leipold Jan 2005

Why Are Federal Judges So Acquittal Prone?, Andrew D. Leipold

Washington University Law Review

Federal criminal defendants almost always prefer a jury trial to a bench trial, but it is unclear why. Statistically, federal judges are significantly more likely to acquit than a jury is—over a recent 14 year period, for example, the jury trial conviction rate was 84%, while the bench conviction rate was a mere 55%. Moreover, while the conviction rate for juries has remained nearly constant for many years, the judicial rate has fallen steadily since the late 1980s. This Article presents the first systematic attempt to explain this “conviction gap.” Using original compilations of government records on over 75 ...


Retaining Life Tenure: The Case For A “Golden Parachute”, David R. Stras, Ryan W. Scott Jan 2005

Retaining Life Tenure: The Case For A “Golden Parachute”, David R. Stras, Ryan W. Scott

Washington University Law Review

The first vacancies on the Supreme Court in eleven years have sparked renewed debate about the continued viability of life tenure for federal judges. Scholars have decried life tenure as one of the Framers' worst blunders, pointing to issues such as strategic retirement, longer average tenure, and widespread mental infirmity of Justices. In this Article, the authors argue that, notwithstanding the serious problem of mental and physical infirmity on the Court, life tenure should be retained. They also argue that recent statutory proposals to eliminate or undermine life tenure, for example through a mandatory retirement age or term limits, are ...


Judicial Selection And The Religious Test Clause, Winston E. Calvert Jan 2004

Judicial Selection And The Religious Test Clause, Winston E. Calvert

Washington University Law Review

No abstract provided.


Beware Of Numbers (And Unsupported Claims Of Judicial Bias), Harry T. Edwards, Linda Elliott Jan 2002

Beware Of Numbers (And Unsupported Claims Of Judicial Bias), Harry T. Edwards, Linda Elliott

Washington University Law Review

In a recent set of articles, Professor Kevin Clermont and Professor Theodore Eisenberg advance the claim that federal appellate judges harbor an unprincipled bias against plaintiff/appellants. The line of reasoning that the authors follow to reach this conclusion is, in our view, quite extraordinary. They first point to data that they claim show that defendants are more likely than plaintiffs to secure reversals in appeals from judgments and verdicts in federal civil cases. They next assert that appellate judges perceive trial courts, especially juries, to be biased in favor of plaintiffs. And, finally, they speculate that, in an effort ...