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2004

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Full-Text Articles in Judges

Defining Dicta, Michael Abramowicz, Maxwell Stearns Dec 2004

Defining Dicta, Michael Abramowicz, Maxwell Stearns

George Mason University School of Law Working Papers Series

In recent decades, legal scholars have devoted substantially greater attention to studying the origin and nature of stare decisis than to defining the distinction between holding and dicta. This appears counter-intuitive when one considers, first, that stare decisis applies only to holdings of announced precedents, and second, that beyond problematic and rudimentary intuitions, the legal system has failed to develop meaningful definitions of these terms. While lawyers, legal scholars, and jurists likely assume that they can identify dicta when they see it, a careful analysis that categorizes the range of judicial assertions in need of proper characterization reveals that defining ...


Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney Dec 2004

Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney

The Ohio State University Moritz College of Law Working Paper Series

This article contributes to an ongoing debate about the feasibility and desireability of measuring the "merit" of appellate judges--and their consequent Supreme Court potential--by using objective performance variables. Relying on the provocative and controversial "tournament criteria" proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the "Supreme Court potential" of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two men's careers ...


The Function Of The Supreme People’S Court Of Regulating Economy——Re-Evaluation Of The Zhongfu Industry Guarantee Case(最高法院规制经济的功能──再评“中福实业公司担保案”), Meng Hou Dec 2004

The Function Of The Supreme People’S Court Of Regulating Economy——Re-Evaluation Of The Zhongfu Industry Guarantee Case(最高法院规制经济的功能──再评“中福实业公司担保案”), Meng Hou

Hou Meng

No abstract provided.


How The Supreme Court Regulates Economy: Review On Exterior Coordination Cost(最高人民法院如何规制经济──外部协调成本的考察), Meng Hou Dec 2004

How The Supreme Court Regulates Economy: Review On Exterior Coordination Cost(最高人民法院如何规制经济──外部协调成本的考察), Meng Hou

Hou Meng

No abstract provided.


Advanced Judicial Opinion Writing: A Handbook For N.Y. St. Trial & Appellate Courts (7th Ed. 2004), Gerald Lebovits Nov 2004

Advanced Judicial Opinion Writing: A Handbook For N.Y. St. Trial & Appellate Courts (7th Ed. 2004), Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.


Reconsider Old Taboo, Scott Dodson Nov 2004

Reconsider Old Taboo, Scott Dodson

Popular Media

The recent cries of judicial activism need to be scrutinized. Are decisions like Lawrence and Goodrich really activist and, if so, is that even something to be discouraged? In this op-ed, I look closely at the "activism" of these decisions and conclude that there is nothing inherently activist about them. I also conclude that, even if there is, activism is defensible in certain cases when it returns to the people the power to exercise their own individual liberties.


Family And Juvenile Law, Robert E. Shepherd Jr. Nov 2004

Family And Juvenile Law, Robert E. Shepherd Jr.

University of Richmond Law Review

No abstract provided.


My First Appellate Argument: It Can Only Get Better, Jon O. Newman Oct 2004

My First Appellate Argument: It Can Only Get Better, Jon O. Newman

The Journal of Appellate Practice and Process

No abstract provided.


Getting To Know Us: Judicial Outreach In Oregon, Mary J. Deits, Lora E. Keenan Oct 2004

Getting To Know Us: Judicial Outreach In Oregon, Mary J. Deits, Lora E. Keenan

The Journal of Appellate Practice and Process

No abstract provided.


The Illusion Of Devil's Advocacy: How The Justices Of The Supreme Court Foreshadow Their Decisions During Oral Argument, Sarah Levien Shullman Oct 2004

The Illusion Of Devil's Advocacy: How The Justices Of The Supreme Court Foreshadow Their Decisions During Oral Argument, Sarah Levien Shullman

The Journal of Appellate Practice and Process

No abstract provided.


Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis Sep 2004

Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis

University of San Diego Public Law and Legal Theory Research Paper Series

In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their ...


A Tournament Of Virtue, Lawrence B. Solum Sep 2004

A Tournament Of Virtue, Lawrence B. Solum

University of San Diego Public Law and Legal Theory Research Paper Series

How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should be selected ...


Judges As Rulemakers, Larry A. Alexander, Emily Sherwin Sep 2004

Judges As Rulemakers, Larry A. Alexander, Emily Sherwin

University of San Diego Public Law and Legal Theory Research Paper Series

This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or ...


Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law Sep 2004

Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all asylum ...


Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law Sep 2004

Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government ...


'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami Aug 2004

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature political theory ...


The Rise Of Managerial Judging In International Criminal Law, Maximo Langer Aug 2004

The Rise Of Managerial Judging In International Criminal Law, Maximo Langer

ExpressO

Abstract This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some ...


Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy Aug 2004

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current ...


Clasificación De Las Causas De La Revocación De Sentencias Por Operación Del Recurso Extraordinario (Gráficos), Horacio M. Lynch Aug 2004

Clasificación De Las Causas De La Revocación De Sentencias Por Operación Del Recurso Extraordinario (Gráficos), Horacio M. Lynch

Horacio M. LYNCH

No abstract provided.


Knowledge Constnlction And Academic Transformation On Sociology Of Law Studies In China(中国法律社会学的知识建构和学术转型), Meng Hou Aug 2004

Knowledge Constnlction And Academic Transformation On Sociology Of Law Studies In China(中国法律社会学的知识建构和学术转型), Meng Hou

Hou Meng

No abstract provided.


Amicus Curiae: Intervención De Amigos Del Tribunal, Horacio M. Lynch, María Clara Pujol Jul 2004

Amicus Curiae: Intervención De Amigos Del Tribunal, Horacio M. Lynch, María Clara Pujol

Horacio M. LYNCH

Cuadro realizado en base a la Acordada 28/2004 (14Jul04) de la Corte Suprema de Justicia de la Nación.


The Personality Of U.S. Supreme Court Justice Clarence Thomas, Aubrey Immelman, Jamie Thielman Jul 2004

The Personality Of U.S. Supreme Court Justice Clarence Thomas, Aubrey Immelman, Jamie Thielman

Psychology Faculty Publications

This paper presents the results of an indirect assessment of the personality of U.S. Supreme Court associate justice Clarence Thomas, from the conceptual perspective of Theodore Millon.

Information concerning Justice Thomas was collected from biographical sources, speeches, and published reports and synthesized into a personality profile using the second edition of the Millon Inventory of Diagnostic Criteria (MIDC), which yields 34 normal and maladaptive personality classifications congruent with Axis II of DSM–IV.

The personality profile yielded by the MIDC was analyzed on the basis of interpretive guidelines provided in the MIDC and Millon Index of Personality Styles manuals ...


Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez Jul 2004

Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort ...


The Majoritarian Rehnquist Court?, Neal Devins Jul 2004

The Majoritarian Rehnquist Court?, Neal Devins

Faculty Publications

No abstract provided.


Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr. Jul 2004

Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.

Faculty Publications

No abstract provided.


Constitutional Law—Separation Of Powers—Restoring The Constitutional Formula To The Federal Judicial Appointment Process: Taking The Vice Out Of "Advice And Consent", Jason Eric Sharp Jul 2004

Constitutional Law—Separation Of Powers—Restoring The Constitutional Formula To The Federal Judicial Appointment Process: Taking The Vice Out Of "Advice And Consent", Jason Eric Sharp

University of Arkansas at Little Rock Law Review

No abstract provided.


Supreme Court Statistical Overview, October Term 2003, Georgetown University Law Center, Supreme Court Institute, Liz Hollander Jun 2004

Supreme Court Statistical Overview, October Term 2003, Georgetown University Law Center, Supreme Court Institute, Liz Hollander

Supreme Court Overviews

No abstract provided.


Reingeniería De La Corte Suprema De La Nación 2: Información Sobre La Tarea Del Alto Tribunal, Horacio M. Lynch, María Clara Pujol Jun 2004

Reingeniería De La Corte Suprema De La Nación 2: Información Sobre La Tarea Del Alto Tribunal, Horacio M. Lynch, María Clara Pujol

Horacio M. LYNCH

La información es clave para tomar decisiones. En el trabajo REINGENIERÍA (1) hicimos amplia referencia a la información en general (para el tribunal, las partes, el público, el extranjero). En este caso nos limitamos a uno sólo de estos aspectos: la información sobre la tarea de la Corte con el exclusivo propósito de dar fundamentos a las propuestas de cambio que se sugieran.


Mesa Del Diálogo Argentino - Sector Justicia - Comisión Para El Tratamiento De La Jurisdicción De La Corte Suprema - Síntesis Propositiva - Acuerdo Unánime: Formulación De Una Agenda, Horacio M. Lynch Jun 2004

Mesa Del Diálogo Argentino - Sector Justicia - Comisión Para El Tratamiento De La Jurisdicción De La Corte Suprema - Síntesis Propositiva - Acuerdo Unánime: Formulación De Una Agenda, Horacio M. Lynch

Horacio M. LYNCH

Recopilación de las propuestas y opiniones de los integrantes de la Comisión.


Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman May 2004

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

ExpressO

No abstract provided.