Judges Commons^™

When Judges Don't Follow The Law: Research And Recommendations, Michele Cotton

City University of New York Law Review

No abstract provided.

Filling The D.C. Circuit Vacancies, Carl W. Tobias

Indiana Law Journal

Partisanship undermines judicial nominations to the U.S. Court of Appeals for the District of Columbia Circuit. With three of eleven judgeships vacant during Barack Obama’s first term, he was the only President in a half century not to appoint a jurist to the nation’s second-most important court. Confirming accomplished nominees, thus, became imperative for the circuit’s prompt, economical, and fair case disposition. In 2013, Obama submitted excellent candidates. Patricia Millett had argued thirty-two Supreme Court appeals; Cornelia Pillard successfully litigated numerous path-breaking matters; and Robert Wilkins had served on the D.C. District bench for three years. The purportedly shrinking tribunal …

Extralegal Supreme Court Policy-Making, Joëlle Anne Moreno

William & Mary Bill of Rights Journal

The Colbert Report aired its final episode on December 18, 2014.1 Nine years earlier, on the first episode, Stephen Colbert coined the word “truthiness.” Truthiness satirized contemporary disinterest in empirical information in a country increasingly “divided between those who think with their head and those who know with their heart.” Truthiness was not just the Merriam-Webster word of the year. Over the past decade, it has been the unspoken mantra of reporters who give equal time to climate science denialists, faith healers, and vaccine refusers. When Justices of the Supreme Court decide questions of scientific or empirical fact—such as whether …

When The Chief Justice Serves In The Legislative Branch, Roy E. Brownell Ii

ConLawNOW

This article argues that the Chief Justice is considered part of the legislative branch during presidential impeachment trials. In so arguing, this article first argues, as a matter of constitutional text, that the Chief Justice during presidential impeachment trials steps into the shoes of the president of the Senate. The Chief Justice’s authority in this vein is granted by Article I, which predominantly governs the legislative branch, and not Article III, which does the same for the federal judiciary.

Indeed, the only reference to the Chief Justice in the entirety of the Constitution occurs in this context in Article I. …

Judicial Elections: The Case For Accountability, Jack Park

ConLawNOW

In this article, Jack Park defends the use of partisan elections as a method of selecting state court judges. He first frames the debate and describes its participants. The author then discusses the competing values that supporters and opponents of judicial elections advance. Finally, Mr. Park addresses the arguments for and against judicial elections, showing that, while they may not be a perfect method of selecting judges, neither are the alternatives.

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin H. Belsky

ConLawNOW

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, …

Judicial Candor And Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (And No More), Eric Dean Hageman

Notre Dame Law Review

This Note’s first Part explores two landmark Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey and NFIB, that may have been decided based on extralegal considerations. Part II describes three prominent theories of judicial candor with an eye to the results they might yield with respect to extralegal reasoning. Part III offers and defends a new, partial theory of judicial candor. This theory is that a judge who employs extralegal reasoning should omit discussion of her reliance on that reasoning and justify her decision with legal reasoning.

The first two Parts will demonstrate that there is a …

Posner, Blackstone, And Prior Restraints On Speech, Ashutosh Bhagwat

BYU Law Review

Judge Richard Posner recently asserted that the original understanding of the Free Speech Clause of the First Amendment was to prohibit “censorship”—meaning prior restraints—but not subsequent punishments. Posner was following in the footsteps of many other eminent jurists including Oliver Wendell Holmes, Jr., Joseph Story, James Wilson, and ultimately William Blackstone.

The problem is, this claim is simply wrong. Firstly, it misquotes Blackstone. Blackstone said that the liberty of the press meant only freedom from prior restraints; he never discussed speech. When one does examine the Speech Clause, it becomes quite clear that its protections cannot be limited to freedom …

A Look Back: Developing Indiana Law; Post-Bench Reflections Of An Indiana Supreme Court Justice; Selected Developments In Indiana Administrative Law (1989-2012), Frank Sullivan Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Striving For Efficiency In Administrative Litigation: North Carolina's Office Of Administrative Hearings, Julian Mann Iii

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Semi-Retirement Of Senior Supreme Court Justices: Examining Their Service On The Courts Of Appeals, Jon A. Gryskiewicz

Seton Hall Circuit Review

No abstract provided.

Front Matter

University of Richmond Law Review

No abstract provided.

When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus

Michigan Law Review First Impressions

On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public …

The Past As Prologue, Nancy Bellhouse May

The Journal of Appellate Practice and Process

No abstract provided.

An Opening For Quid Pro Quo Corruption? Issue Advertising In Wisconsin Judicial Races Before And After Citizens United, Christopher Terry, Mitchell T. Bard

The Journal of Appellate Practice and Process

No abstract provided.

Judging And Administration For Far-Off Places: Trial, Appellate, And Committee Work In The South Pacific, Stephen L. Wasby

Golden Gate University Law Review

Little attention is paid to the far reaches of the federal judicial system, which extends beyond the boundaries of the continental United States and even beyond the outermost states of Alaska and Hawaii; Puerto Rico is part of the First Circuit,1 and the Virgin Islands are part of the Third Circuit.2 Most particularly, the Ninth Circuit encompasses not only Hawai’i but also the territories of Guam and the Northern Mariana Islands (NMI). Not only has the Ninth Circuit provided judges to hear cases in the district courts in Guam and the NMI as needed and reviewed cases appealed from those …

Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes

Akron Law Review

With the courts increasingly being the forum for legal disputes between those who demand change in the superstructure and those who represent (or are) the structure, a rather unfortunate by-product has evolved: a feeling that the courts can no longer adequately dispense justice.8 This manifests itself in beliefs that if one is prosecuted for activities that were designed to advance social change, either in violation of the law or not, that the individual will not be afforded a fair trial; 9 a reflection that the social or political activist will not be judged by an impartial jury….For the purposes of …

Book Review: Much Ado About Nothing: The Brethren: Inside The Supreme Court, Richard L. Aynes

Akron Law Review

With such auspicious beginnings, The Brethren would appear to be a vital and important book which should be included upon the "required" reading list of those who wish to keep abreast of developments involving the Court and the evolution of constitutional law. Unfortunately, for anyone familiar with the decisions of the Court, the high expectations raised by The Brethren will not be met. Even when viewed in the most charitable light, the "insights" into the decision-making process to be gained from The Brethren are slight.2

The Judicial Philosophy Of Justice Rehnquist, Robert E. Riggs, Thomas D. Proffitt

Akron Law Review

In defining the contours of the Rehnquist judicial philosophy, this article will examine three sources: (1) ideas articulated by Justice Rehnquist in opinions and other writings, (2) values implicit in his pattern of decision-making as distilled from the decided cases, and (3) ideas attributed to him by others. Information from each source will be examined separately for light it sheds on the Rehnquist judicial philosophy, and each is assigned its own label. Thus, this article will refer to the self-articulated philosophy (as reflected in the Justice's writings), the attributed philosophy (as reflected in the writings of others), and the operative …

The Honorable William H. Victor, The Life And Times Of A Distinguished Jurist, Oscar Hunsicker, Edward J. Mahoney, Ronald O. Kaffen

Akron Law Review

William H. Victor after a long and distinguished career as a judge and civic leader has decided to take retired status. He will be able to be recalled to serve where needed on assignment from the Chief Justice of the Supreme Court of Ohio.

Response To Professor Parness And Mr. Reagle, Jack Grant Day

Akron Law Review

I subscribe to so much of the reform suggestions proposed by the authors that I believe my response can be most useful if confined to some emphasis or expansion of concurrent views, specific reference to disagreements and support for points of reform needed but not recommended.

The Honorable Paul C. Weick - A Lenghty And Distinguished Tenure On The Court

Akron Law Review

I am pleased to join the Akron Law Review in the dedication of this issue to Judge Paul C. Weick. Judge Weick took senior status on December 31, 1981, after twenty-two years of active service on the United States Court of Appeals for the Sixth Circuit.

The Propriety Of Prospective Relief And Attorney's Fees Awards Against State-Court Judges In Federal Civil Rights Actions, Stephen J. Shapiro

Akron Law Review

During the past thirty years, the United States Supreme Court has refined a system of immunities for governmental officials when those officials are sued under 42 U.S.C. § 1983 for violation of constitutional rights. The kind of immunity granted varies with the kind of governmental function exercised by the official when committing the alleged constitutional violation. Persons exercising legislative functions are absolutely immune from suit either for damages or for prospective (declaratory or injunctive) relief. Those exercising prosecutorial functions are absolutely immune from damages but may be sued for prospective relief. Those exercising executive functions are granted only a conditional, …

A Tribute To The Honorable Oscar A. Hunsicker, William P. Kannel, William H. Victor, Robert D. Moss, Richard L. Aynes

Akron Law Review

Judge Hunsicker was elected to the Juvenile Court bench in 1930. He was a pioneer in the changing of Juvenile Courts and was primarily responsible for much of a lasting philosophy and many lasting procedures of our present day Juvenile Court. He served in that court until 1946 when he was elevated to the Ninth District Court of Appeals. His record as an outstanding Jurist is common knowledge.

Federal Judges And Presidential Power: Truman To Reagan, Craig R. Ducat, Robert L. Dudley

Akron Law Review

While there is a considerable literature consisting of commentaries on the substance of federal court decisions about presidential power, there has been little quantitative investigation of political factors influencing judicial decision-making in those cases. Analyzing the votes cast by judges at all levels of the federal judiciary during the post-World War II era, this study examines several conventional expectations about the impact of such political factors as political party affiliation and presidential appointment, the difference between the foreign and military affairs and domestic policy areas, length of judicial tenure, and judges' possession of prior legislative or executive experience.

The Last Word, Ross E. Davies

The Journal of Appellate Practice and Process

No abstract provided.

Legislative Process And Intent In Justice Scalia's Interpretive Method, David Schultz

Akron Law Review

This article explores Justice Scalia's views on the legislative process and his interpretive methodology which questions using legislative intent when interpreting statutes. Unlike other recent scholarship which focuses on Scalia's interpretive method, this article is somewhat more expansive. It will examine his views towards the legislative process and decision-making, including his approach and methodology used in interpreting legislative pronouncements. To do this, the article will first provide an assessment of recent legal scholarship describing Scalia's interpretive jurisprudence. The goal here is to establish a description of the legal community's perspective regarding Scalia's views towards interpreting statutes. The second section will …

Justice Brennan's Gender Jurisprudence, Rebecca Korzec

Akron Law Review

However, less attention has been focused on Justice Brennan's dramatic impact on the Supreme Court's gender jurisprudence. More than any other member of the Court, Justice Brennan recognized the complexity and pervasiveness of sex discrimination and its costs to society as a whole. Brennan's opinions recognized that sex differentiation is largely cultural in origin, rather than based on "real" gender differences. As a result, Justice Brennan created a truly independent gender jurisprudence, eventually emerging as the architect of the Supreme Court's contemporary test for evaluating claims of sex-based discrimination.

Understanding the significance of Brennan's contribution requires an appreciation of the …

Clouds In The Crystal Ball: Presidential Expectations And The Unpredictable Behavior Of Supreme Court Appointees, Christopher E. Smith, Kimberly A. Beuger

Akron Law Review

This article will analyze the pitfalls that presidents face in hoping that their nominees' judicial performance will comport with presidential expectations.

The Trial Judge As Gatekeeper For Scientific Evidence: Will Ohio Rule Of Evidence 102 Frustrate The Ohio Courts' Role Under Daubert V. Merrell Dow?, Michael Lepp, Chrisopher B. Mcneil

Akron Law Review

This article considers the role of the trial court in responding to the changes wrought by scientific innovation. Particular consideration is given to the impact likely to be realized in Ohio trial courts from the decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.

[...]In order to appreciate the significance of Ohio Evidence Rule 102 in this context, it is helpful to first examine some of the events leading to Daubert, especially the application (and in some instances, the rejection) of Frye both in Ohio and at the federal level. Following that, this article will …