Judges Commons^™

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 on the …

'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 …

Are You Experienced?: Examining The Need For Specialized Ethics Rules In Patent Litigation, Benjamin J. Sodey

ExpressO

Any attorney licensed to practice before a federal district court, regardless or his or her area of specialization, may file a patent infringement suit on behalf of a client in that court. The possibility exists, therefore, for an attorney having little or no intellectual property experience to represent clients in complex patent litigation matters. Due to this, infringement defendants and their counsel may find themselves on the receiving end of a dubious patent claim brought by attorneys lacking patent law experience. This article discusses whether the existing rules governing attorney conduct, such as professional responsibility, procedural, or statutory rules, are …

The Role Of Purposivism In The Delegation Of Rulemaking Authority To The Courts, Michael Rosensaft

ExpressO

The courts are often used by Congress as a “political lightning rod,” when Congress cannot decide how to resolve an issue. Congress relies on administrative agencies for their expertise, and it also makes sense for Congress to delegate some rulemaking authority to the courts, relying on a court’s expertise in developing caselaw in an incremental basis. However, this authority should not be lightly implied. A court can tell that Congress has delegated rulemaking authority to it when the purpose of the statute is clear and the text is broadly worded. It thus makes sense in these cases that purposivism should …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic Nelson Smalkin, Frederic Nelson Chancellor Smalkin

ExpressO

This article takes a fresh look at the increasingly discussed topic of the scarcity of civil cases reaching trial in the Article III system. The number of cases tried declined by more than one-fourth in the decade from 1989-1999, and the decline continued at about the same rate to the end of the latest year for which statistics are available, 2002, while ADR (particularly arbitrations) skyrocketed.

The authors examine the history of competing English courts (particularly Common Pleas and King's Bench) for signs that, in fact, market competition can arise among dispute-resolving bodies. They also apply economic analysis to the …

Judicial Perspectives On The Federal Sentencing Guidelines And The Goals Of Sentencing: Debunking The Myths, Michael E. O'Neill

ExpressO

No abstract provided.