Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Courts (19)
- Constitutional Law (11)
- Law and Politics (9)
- Legal Ethics and Professional Responsibility (9)
- Supreme Court of the United States (4)
-
- Jurisprudence (3)
- Legal Profession (3)
- Social and Behavioral Sciences (3)
- Law and Society (2)
- Legal History (2)
- Legislation (2)
- Models and Methods (2)
- Political Science (2)
- Rule of Law (2)
- Anthropology (1)
- Arabic Studies (1)
- Arts and Humanities (1)
- Business Organizations Law (1)
- Civil Procedure (1)
- Common Law (1)
- Comparative and Foreign Law (1)
- Criminal Law (1)
- Election Law (1)
- Entertainment, Arts, and Sports Law (1)
- Islamic Studies (1)
- Other Law (1)
- Religion (1)
- Religion Law (1)
- Institution
-
- Maurer School of Law: Indiana University (11)
- Duke Law (4)
- American University Washington College of Law (3)
- Cornell University Law School (3)
- Georgetown University Law Center (3)
-
- Case Western Reserve University School of Law (2)
- Emory University School of Law (2)
- UIdaho Law (2)
- University of Pittsburgh School of Law (2)
- Columbia Law School (1)
- Florida International University College of Law (1)
- Fordham Law School (1)
- Notre Dame Law School (1)
- Schulich School of Law, Dalhousie University (1)
- St. John's University School of Law (1)
- St. Mary's University (1)
- The University of Akron (1)
- University at Buffalo School of Law (1)
- University of Georgia School of Law (1)
- University of Maine School of Law (1)
- University of Michigan Law School (1)
- University of Pennsylvania Carey Law School (1)
- Vanderbilt University Law School (1)
- Washington and Lee University School of Law (1)
- Publication Year
- Publication
-
- Articles by Maurer Faculty (11)
- Faculty Scholarship (6)
- Articles (5)
- Faculty Publications (5)
- Articles in Law Reviews & Other Academic Journals (3)
-
- Cornell Law Faculty Publications (3)
- Faculty Articles (3)
- Journal Articles (2)
- U.S. Supreme Court Briefs (2)
- Akron Law Faculty Publications (1)
- All Faculty Scholarship (1)
- Articles, Book Chapters, & Popular Press (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Scholarly Articles (1)
- Scholarly Works (1)
- Vanderbilt Law School Faculty Publications (1)
Articles 1 - 30 of 47
Full-Text Articles in Judges
The Appearance Of Appearances, Michael Ariens
The Appearance Of Appearances, Michael Ariens
Faculty Articles
The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.
During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …
Packing And Unpacking State Courts, Marin K. Levy
Packing And Unpacking State Courts, Marin K. Levy
Faculty Scholarship
When it comes to court packing, questions of “should” and “can” are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and Congress simply cannot do. Even though the Constitution’s text does not directly prohibit expanding or contracting the size of courts for political gain, many have argued that there is a longstanding norm against doing so, stemming from a commitment to judicial independence and separation of powers. And so (the argument goes), even though the political branches might otherwise be tempted to add or subtract seats to change the Court’s ideological makeup, …
Considering Reconsidering Judicial Independence, Charles G. Geyh
Considering Reconsidering Judicial Independence, Charles G. Geyh
Articles by Maurer Faculty
In Reconsidering Judicial Independence, Professor Stephen Burbank revisits the nature of the relationship between judicial independence and judicial accountability—a relationship that he has elucidated over the course of an illustrious career. As Burbank emphasizes, the continuing success of this dichotomy depends on preserving a balance between its halves. But forces generations in the making have led to a new assault on the independence of the judiciary in the age of Trump, which has put the future of the independence–accountability balance in doubt. The age-old rule-of-law paradigm, which posits that independent judges put aside their personal biases and follow the law, …
Courts Under Pressure: Judicial Independence And Rule Of Law In The Trump Era, Johanna Kalb
Courts Under Pressure: Judicial Independence And Rule Of Law In The Trump Era, Johanna Kalb
Articles
No abstract provided.
Tailored Judicial Selection, Dmitry Bam
Tailored Judicial Selection, Dmitry Bam
Faculty Publications
American states have experimented with different methods of judicial selection for two centuries, creating uniquely American models of selection, like judicial elections, rarely used throughout the rest of the world. But despite the wide range of selection methods in existence throughout the nation, neither the American people nor legal scholars have given much thought to tailoring the selection method to particular levels of the judiciary. To the contrary, the most common approach to judicial selection in the United States is what I call a unilocular, “a judge is a judge,” approach. For most of our nation’s history, all judges within …
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost
Articles in Law Reviews & Other Academic Journals
The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …
Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost
Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost
Articles in Law Reviews & Other Academic Journals
In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.
This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …
Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky
Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky
Akron Law Faculty Publications
In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …
The Will Of The (Iraqi) People, Haider Ala Hamoudi
The Will Of The (Iraqi) People, Haider Ala Hamoudi
Articles
While there has been much literature on the Iraqi constitution of both the scholarly and popular media variety, attention to contemporary Iraqi judicial decisions, and in particular those of the Iraqi Federal Supreme Court, has been far less pronounced. In fact, my own search has not led me to a single published law review article on the subject. There is some irony to this – it is, after all, rather difficult to address the concept of constitutionalism in any state without reference to constitutional praxis, and the judiciary is, at the very least, an integral participant in that praxis. I …
Public Funding Of Judicial Campaigns: The North Carolina Experience And The Activism Of The Supreme Court, Paul D. Carrington
Public Funding Of Judicial Campaigns: The North Carolina Experience And The Activism Of The Supreme Court, Paul D. Carrington
Faculty Scholarship
In recent years, the problem of selecting judges to sit on the highest state courts has become a national crisis. North Carolina remains among the states whose constitutions require competitive elections of all its judges. Presently, all candidates for its judicial offices must first compete for election in a non-partisan primary, a system motivated by the desire to maximize the power of the state’s citizen-voters to choose their judges and hold them accountable for their fidelity to the law. Some observers have continued to celebrate such judicial elections as an honorable democratic empowerment, while others have not. The disagreement has …
The Law And Policy Of Judicial Retirement, Mitu Gulati, Stephen J. Choi, Eric A. Posner
The Law And Policy Of Judicial Retirement, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Faculty Scholarship
Lifetime tenure maximizes judicial independence by shielding judges from political pressures, but it creates problems of its own. As is widely known, judges with judicial independence may implement their political preferences or shirk in other ways. Less attention has been given to another problem: that judges will remain in office after their abilities degrade as a result of old age. The U.S. federal system addresses these problems in an indirect way. When judges’ pensions vest, they receive a full salary regardless of whether they work or not; thus, the effective compensation for judicial work falls to zero. Judges can retire, …
"Our Cities Institutions" And The Institution Of The Common Law, Bernadette Meyler
"Our Cities Institutions" And The Institution Of The Common Law, Bernadette Meyler
Cornell Law Faculty Publications
The audiences of early modern English drama were multiple, and they intersected with the legal system in various ways, whether through the cross-pollination of the theaters and the Inns of Court, the representations of the sovereign’s justice performed before him, or the shared evidentiary orientations of jurors and spectators. As this piece written for a symposium on “Reasoning from Literature” contends, Shakespeare’s Measure for Measure addressed to these various audiences the question of whether the King should judge in person. In doing so, it drew on extant political theories suggesting that the King refrain from exposing himself to public censure …
The Irrepressible Myth Of Klein, Howard M. Wasserman
The Irrepressible Myth Of Klein, Howard M. Wasserman
Faculty Publications
The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …
Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton
Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton
Cornell Law Faculty Publications
No abstract provided.
Brief Of The Conference Of Chief Justices As Amicus Curiae In Support Of Neither Party, Caperton V. A.T. Massey Coal Co., No. 08-22 (U.S. Jan. 5, 2009), Roy A. Schotland
Brief Of The Conference Of Chief Justices As Amicus Curiae In Support Of Neither Party, Caperton V. A.T. Massey Coal Co., No. 08-22 (U.S. Jan. 5, 2009), Roy A. Schotland
U.S. Supreme Court Briefs
No abstract provided.
Are Appointed Judges Strategic Too?, Joanna Shepherd
Are Appointed Judges Strategic Too?, Joanna Shepherd
Faculty Articles
The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually …
Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton
Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton
Faculty Scholarship
The independence of the judiciary is an enduring and defining objective of the legal profession. Law depends on judges to observe and enforce it. To secure such virtuous judges, they must be protected from retaliation by those who disapprove their decisions and prevented from receiving rewards from those who benefit by them. Those having the greatest stake in shielding judges from intimidation or reward are the profession that shares their dependence on public acceptance and respect. And that task of protecting judicial independence stands today at the very top of the agenda of the American legal profession.
Money, Politics, And Impartial Justice, Joanna Shepherd
Money, Politics, And Impartial Justice, Joanna Shepherd
Faculty Articles
A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States’ judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, …
Reframing The Independence V. Accountability Debate: Defining Judicial Structure In Light Of Judges' Courage And Integrity, David Pimentel
Reframing The Independence V. Accountability Debate: Defining Judicial Structure In Light Of Judges' Courage And Integrity, David Pimentel
Articles
No abstract provided.
My Brethren’S (Gate) Keeper? Testimony By U.S. Judges At Others’ Supreme Court Confirmation Hearings: Its Implications For Judicial Independence And Judicial Ethics, Mary Clark
Articles in Law Reviews & Other Academic Journals
This article, prompted by the testimony of seven of Samuel Alito's then-current and former Third Circuit colleagues at his hearing to be Associate Justice of the United States Supreme Court, examines the merits of federal judges testifying at others' Supreme Court confirmation hearings. While mindful of other approaches to the question of judicial participation in other judicial appointments systems and of their comparative advantages and disadvantages, the author nevertheless concludes that judges threaten judicial independence and judicial ethics principles when they exercise power in the Article III appointments realm. It is not so much a question of judges usurping the …
Straddling The Fence Between Truth And Pretense: The Role Of Law And Preference In Judicial Decision Making And The Future Of Judicial Independence, Charles G. Geyh
Straddling The Fence Between Truth And Pretense: The Role Of Law And Preference In Judicial Decision Making And The Future Of Judicial Independence, Charles G. Geyh
Articles by Maurer Faculty
No abstract provided.
The Endless Judicial Selection Debate And Why It Matters For Judicial Independence, Charles G. Geyh
The Endless Judicial Selection Debate And Why It Matters For Judicial Independence, Charles G. Geyh
Articles by Maurer Faculty
In this overview, I begin by describing the five different systems of state judicial selection that have evolved out of a perennial struggle to strike an optimal balance between judicial independence and judicial accountability. I then explore recent developments that have intensified that struggle, before analyzing, with reference to available research, how different selection systems counter or accommodate such developments. My purpose here is not to write (another) position piece. Rather, my purpose is to step back and contextualize disputes over judicial selection with reference to the independence and accountability issues that animate them, and to isolate what we know …
Methods Of Judicial Selection And Their Impact On Judicial Independence, Charles G. Geyh
Methods Of Judicial Selection And Their Impact On Judicial Independence, Charles G. Geyh
Articles by Maurer Faculty
No abstract provided.
Reforming The Supreme Court, Roger C. Cramton
Reforming The Supreme Court, Roger C. Cramton
Cornell Law Faculty Publications
Life tenure for Supreme Court Justices has had harmful consequences that could not have been foreseen by the Founders. The seriousness of these harms makes it necessary and proper to use the hindsight we enjoy today to correct them. This Article begins with a brief summary of the constitutional provisions relevant to judicial tenure and examines how the system of life tenure functions today. The harmful consequences of life tenure are then examined, leading to the conclusion that a statutory solution is required. The article then proposes such a solution and examines its constitutionality, concluding that language, history and purpose …
The State Of Judiciary: A Corporate Perspective, Larry D. Thompson
The State Of Judiciary: A Corporate Perspective, Larry D. Thompson
Scholarly Works
The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …
Justice O'Connor And 'The Threat To Judicial Independence': The Cowgirl Who Cried Wolf?, Arthur D. Hellman
Justice O'Connor And 'The Threat To Judicial Independence': The Cowgirl Who Cried Wolf?, Arthur D. Hellman
Articles
Sandra Day O'Connor retired from active service on the United States Supreme Court in early 2006. As her principal "retirement project," she has taken on the task of defending the independence of the judiciary. In speeches, op-ed articles, and public interviews, she has warned that "we must be ever vigilant against those who would strong-arm the judiciary into adopting their preferred policies." Justice O'Connor has done the nation a service by bringing the subject of judicial independence to center stage and by calling attention to the important values it serves. Unfortunately, however, in describing the threats to that independence, she …
Judicial Independence, Judicial Accountability And Interbranch Relations, Stephen B. Burbank
Judicial Independence, Judicial Accountability And Interbranch Relations, Stephen B. Burbank
All Faculty Scholarship
In this paper I argue that the main cause of the poisonous state of interbranch relations involving the federal judiciary, as of the frequent and strident attacks on courts, federal and state, are strategies calculated to persuade the public that courts are part of ordinary politics and thus that judges are policy agents to be held accountable as such. Although unremarkable in the sense that a breakdown in norms of interdependency is a defining characteristic of contemporary politics, I regard the current situation involving the federal judiciary as remarkably dangerous because of the possibility that a tipping point of no …
The Best Defense: Why Elected Courts Should Lead Recusal Reform, Deborah Goldberg, James J. Sample, David Pozen
The Best Defense: Why Elected Courts Should Lead Recusal Reform, Deborah Goldberg, James J. Sample, David Pozen
Faculty Scholarship
In recent years, we have seen an escalation of attacks on the independence of the judiciary. Government officials and citizens who have been upset by the substance of judicial decisions are increasingly seeking to rein in the courts by limiting their jurisdiction over controversial matters, soliciting pre-election commitments from judicial candidates, and drafting ballot initiatives with sanctions for judges who make unpopular rulings. Many of these efforts betray ignorance at best, or defiance at worst, of traditional principles of separation of powers and constitutional protections against tyranny of the majority.
The attacks are fueled in part by the growing influence …
Taxation, Compensation, And Judicial Independence, Jonathan L. Entin, Erik M. Jensen
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
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 …