Judges Commons^™

Inside The Bankruptcy Judge's Mind, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

In this paper, we extend our prior work on generalist judges to explore whether specialization leads to superior judicial decision making. To do so, we report the results of a study of federal bankruptcy judges. In one prior study of bankruptcy judges, Ted Eisenberg reported evidence suggesting that bankruptcy judges, like generalist judges, are susceptible to the "self-serving" or "egocentric" bias when making judgments. Here, we report evidence showing that bankruptcy judges are vulnerable to anchoring and framing effects, but appear largely unaffected by the omission bias, a debtor's race, a debtor's apology, and "terror management" or "mortality salience."'

Because …

Federal Court Self-Preservation And Terri Schiavo, Jack M. Beermann

Faculty Scholarship

If the federal court in Florida had granted preliminary relief to allow itself more time to consider the constitutional claims that Terri Schiavo's parents brought on her behalf, and if, as expected, those claims were ultimately rejected, the federal court would have been placed in the unenviable position of having to be the institution that made the final decision to terminate Terri Schiavo's feeding and other treatment. Although I have no way of knowing whether this fact, which has not been noted in the commentary,' actually entered into the mind of any of the federal judges who considered the case, …

Edward R. Becker: A Man In Full, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

I Accuse...! A Letter To The Honorable Clarence Thomas, Donald E. Wilkes Jr.

Popular Media

My dear Mr. Justice Thomas,

With all respect, will you permit me to express candidly my concerns about your proclivity for demeaning human rights? Will you allow me to tell you frankly, sir, that because of your relentless hostility to human rights claims you are a painful embarrassment to the Court you sit on, to America's heritage of liberty, and to the rule of law?

Protecting Your Personal Privacy: A Self-Help Guide For Judges And Their Families (2006), Chicago Bar Association’S Privacy Task Force, John Marshall Law School Center For Information Technology & Privacy Law, Leslie Ann Reis

UIC Law White Papers

“I believe that the Internet is a brave new world in the matter of judicial security.” – Testimony of Joan H. Lefkow, United States District Judge, before the Judiciary Committee of the United States Senate (May 18, 2005).

Your personal information may be no farther away than a mouse-click... Your name, locations of your home and workplace, your phone number and email address, details of your family members, your political leanings and many more pieces of information are available through a wide array of public and private sources. But, this is nothing new. Some personal information about you has always …

Judges, Juries, And Punitive Damages: Empirical Analyses Using The Civil Justice Survey Of State Courts 1992, 1996, And 2001 Data, Theodore Eisenberg, Paula L. Hannaford, Michael Heise, Neil Lafountain, Brian Ostrom, Martin T. Wells, G. Thomas Munsterman

Cornell Law Faculty Publications

We analyze thousands of trials from a substantial fraction of the nation's most populous counties. Evidence across ten years and three major datasets suggests that: (1) juries and judges award punitive damages in approximately the same ratio to compensatory damages, (2) the level of punitive damages awards has not increased, and (3) juries' and judges' tendencies to award punitive damages differ in bodily injury and no-bodily-injury cases. Jury trials are associated with a greater rate of punitive damages awards in financial injury cases. Judge trials are associated with a greater rate of punitive damages awards in bodily injury cases.

Judges As Rulemakers, Emily Sherwin

Cornell Law Faculty Publications

In Do Cases Make Bad Law?, Frederick Schauer raises some serious questions about the process of judicial lawmaking. Schauer takes issue with the widely held assumption that judge-made law benefits from the court's focus on a particular real-world dispute. Writing with characteristic eloquence, Schauer argues that the need to resolve a concrete dispute does not enhance the ability of judges to craft sound rules, but instead generates cognitive biases that distort judicial development of legal rules.

Schauer's observations about the risks of rulemaking in an adjudicatory setting are very persuasive. Yet his overall assessment of the common law process …

Supreme Court Of The United States, October Term 2005 Overview, Georgetown University Law Center, Supreme Court Institute, Rebecca Cady

Supreme Court Overviews

No abstract provided.

Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo M. Peñalver

Cornell Law Faculty Publications

Justice Stevens has sometimes been caricatured as the U.S. Supreme Court Justice who hates religion. Whether considering questions under the Establishment Clause or the Free Exercise Clause, questions about the funding or regulation of religious groups, or the permissibility of religious speech in public places, in case after case he has voted against religion. Like most caricatures, this view of Justice Stevens is based on a kernel of truth. He does appear to be more likely to vote against religious groups than any other Justice. But an exploration of the cases in which Justice Stevens has voted in favor of …

Taxation, Compensation, And Judicial Independence, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the subject, United States …

Taxation, Compensation, And Judicial Independence: Hatter V. United States, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the subject, United States …

United States V. Hatter And The Taxation Of Federal Judges, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Does the constitutional requirement that the "compensation" of federal judges "not be diminished during their Continuance in office" preclude Congress from subjecting sitting judges to the social security taxes from which they had previously been exempt? In Hatter v. United States, the Federal Circuit ruled for judges claiming such an exemption, and, after the Supreme Court granted cert, the authors wrote the first of these two articles, arguing why, for a multitude of reasons, the Supreme Court should reverse and make it clear that judges may constitutionally be subject to a tax of general application. After the Supreme Court held …

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding

All Faculty Scholarship

No abstract provided.

Justice Stevens, The Peremptory Challenge, And The Jury (Symposium), Nancy S. Marder

All Faculty Scholarship

No abstract provided.

Ceremonial Swearing-In Of Congresswoman-Elect Kirsten E. Gillibrand, Roger J. Miner '56

Judges

No abstract provided.

The Last Civilian Court—Martial And Its Aftermath, Roger J. Miner '56

Military Law

Judge Miner here describes his defense of a person he believes to be

the last civilian tried by court martial. The trial was conducted in

Korea in 1958 during Judge Miner's service as an officer in the

Judge Advocate General's Corps of the United States Army.

Although a challenge to the jurisdiction of the court martial was

rejected and the civilian defendant convicted of violating a currency

regulation, the conviction was set aside for another reason urged at

trial-the inadvertent repeal of the at-issue regulation. The Article

also includes a review of legal developments that occurred in the

aftermath of …

Smoke, Not Fire, Neal Devins

Faculty Publications

No abstract provided.

Judicial Discretion To Condition, Thomas O. Main

Scholarly Works

No abstract provided.

Train Our Jurors, Jonathan Koehler

Faculty Working Papers

Lay jurors are often legally and logically unprepared for trial. In response, it is recommended that jurors receive training in how to make better legal decisions. This chapter suggests that jurors should receive comprehensive training in critical legal doctrines and in how to reason with legal evidence. Jurors who cannot be trained to achieve minimal levels of competence (in the law or in basic reasoning) should be excused from jury service. Suggestions are given as to how policy makers and researchers who are interested in jury reform may wish to proceed.

Judge Posner's Dissenting Judicial Oeuvre And The Aesthetics Of Canonicity, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

The Limits Of The Olympian Court: Common Law Judging Versus Error Correction In The Supreme Court, Carolyn Shapiro

All Faculty Scholarship

Throughout its history, the Supreme Court has struggled to control its caseload and to avoid becoming a court of error correction. Instead, it applies its resources to matters of particular national importance and to promoting uniformity in the law. This Article argues that the Court's approach to maintaining uniformity fails to provide adequate guidance to the lower courts. The Court focuses on resolving disagreements among the lower courts over what rules and standards to apply. But the Court largely ignores the question of whether those directives are applied in a consistent or predictable way. As a result, there are areas …

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article tests a model of judicial decisionmaking that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. …

Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman

Book Chapters

Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.

One of the main arguments for term limits is, in essence, that the Supreme Court should …

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford

UIC Law Open Access Faculty Scholarship

This Article tests a model of judicial decision making that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of …

Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

Tribute To Justice Antonin Scalia, Nadine Strossen

Articles & Chapters

No abstract provided.

Cognitive Errors, Individual Differences, And Paternalism, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Legal scholars commonly argue that the widespread presence of cognitive errors in judgment justifies legal intervention to save people from predictable mistakes. Such arguments often fail to account for individual variation in the commission of such errors even though individual variation is probably common. If predictable groups of people avoid making the errors that others commit, then law should account for such differences because those who avoid errors will not benefit from paternalistic interventions and indeed may be harmed by them. The research on individual variation suggests three parameters that might distinguish people who can avoid error: cognitive ability, experience …

The Dubitante Opinion, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

A dubitante (pronounced d[y]oo-bi-tan-tee) opinion indicates that “the judge doubted a legal point but was unwilling to state that it was wrong.” Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion--What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of …

In Praise Of Contextuality - Justice O'Connor And The Establishment Clause, Marie Failinger

Faculty Scholarship

Among Justice Sandra Day O’Connor’s lasting contributions to Supreme Court Jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government in assessing its constitutionality. Typical of this contributor has been her two decades of work in Establishment Clause law, in particular, ended by Lynch v. Donnelly, in which she introduced the “non-endorsement” test and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union, in which it was most recently employed. The non-endorsement test has served as one of the two commonly competing …

Courts, Congress, And Public Policy, Part I: The Fda, The Courts, And The Regulation Of Tobacco, Jeffrey R. Lax, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.