Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Publication Year
- Publication
- Publication Type
Articles 1 - 17 of 17
Full-Text Articles in Judges
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, …
Supreme Court As Superweapon: A Response To Epps & Sitaraman, Stephen E. Sachs
Supreme Court As Superweapon: A Response To Epps & Sitaraman, Stephen E. Sachs
Faculty Scholarship
Is the Supreme Court's legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court's legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle …
Diversity, Transparency & Inclusion In Canada’S Judiciary, Samreen Beg, Lorne Sossin
Diversity, Transparency & Inclusion In Canada’S Judiciary, Samreen Beg, Lorne Sossin
Articles & Book Chapters
The purpose of this paper is to provide a high level overview of some of the issues and stumbling blocks Canada has encountered in building a diverse judiciary. Part 1 of the paper begins by providing a brief overview of the heterogeneous makeup of Canadian society against the homogenous makeup of the judiciary. This will provide a helpful backdrop from which to explore conceptual questions related to the question of why a diverse judiciary matters. Part 2 examines some of the historical questions and milestones in the judiciary related to diversity. Part 3 summarizes the judicial appointments processes and takes …
It’S So Hard To Say Goodbye: Why Article Iii Judges Leave (Or Don’T), Johnnie Blakeney Rawlinson
It’S So Hard To Say Goodbye: Why Article Iii Judges Leave (Or Don’T), Johnnie Blakeney Rawlinson
Duke Law Master of Judicial Studies Theses
Thurgood Marshall famously stated: “I was appointed to a life term, and I intend to serve it.” Justice Marshall’s sentiment is in lockstep with the expressed intent of the Founding Fathers, who embedded the concept of life tenure for Article III judges into the Constitution at the time of its adoption. This paper explores the extent to which Article III judges in this era echo the sentiment expressed by Justice Marshall, and the reasons some Article III judges have elected not to serve a life term. The paper also examines whether Article III judges have gravitated toward careers in the …
A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner
A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner
Faculty Scholarship
The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of …
Professionals Or Politicians: The Uncertain Empirical Case For An Elected Rather Than Appointed Judiciary, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Professionals Or Politicians: The Uncertain Empirical Case For An Elected Rather Than Appointed Judiciary, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Faculty Scholarship
Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a data set of state high court opinions,we construct measures for three aspects of judicial performance: effort, skill, and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. Appointed judges write higher quality opinions than elected judges do, but elected judges write more opinions, and the evidence suggests that …
Policy Preference Change And Appointments To The Supreme Court Of Canada, Benjamin Alarie, Andrew Green
Policy Preference Change And Appointments To The Supreme Court Of Canada, Benjamin Alarie, Andrew Green
Osgoode Hall Law Journal
Canadian prime ministers appoint judges to the Supreme Court of Canada at their own discretion. This practice has been criticized as providing prime ministers with the ability to appoint judges whose policy preferences are regarded as politically congenial. We examine the Court's judgments in the post-Charter era to discern the apparent policy preferences of the judges. Our results suggest that the policy preferences of judges are not strongly associated with the political party of the prime minister and that their policy preferences shift over time in seemingly unpredictable ways. We discuss the implications of this analysis for possible reforms of …
Judicial Review And American Constitutional Exceptionalism, Miguel Schor
Judicial Review And American Constitutional Exceptionalism, Miguel Schor
Osgoode Hall Law Journal
This article challenges the conventional view of the pervasiveness of American-style judicial review. It questions why social movements contest constitutional meaning by fighting over judicial appointments in the United States, and why this strategy makes little sense in democracies that constitutionalized rights in the late twentieth century. The United States has been both a model and an anti-model in the global spread of judicial review, as the hope of Marbury (constitutionalized rights) has been tempered by the fear of Lochner [courts run amok). In reconciling Marbury and Lochner, other polities have adopted stronger mechanisms of judicial accountability that make it …
Ranking Judges According To Citation Bias, Mitu Gulati, Stephen J. Choi
Ranking Judges According To Citation Bias, Mitu Gulati, Stephen J. Choi
Faculty Scholarship
In our Essay, we put forward a methodology to assess the amount of political bias that affects judges based on the decisions judges make on whom to cite in their opinions. Unlike prior studies looking at judicial bias that focus on judicial voting outcomes, our study of bias in citation practices is aimed at uncovering more subtle forms of bias. Judges may shy away from acting overly biased when making a highly visible decision such as voting in a particular case, but instead seek to shift the law more subtly through their reasoning and citation patterns in the opinion, thereby …
The Serendipitous Solution To The Problem Of Supreme Court Appointments, Peter Mccormick
The Serendipitous Solution To The Problem Of Supreme Court Appointments, Peter Mccormick
Osgoode Hall Law Journal
No abstract provided.
Appointment Of Justice Marshall Rothstein To The Supreme Court Of Canada, Peter W. Hogg
Appointment Of Justice Marshall Rothstein To The Supreme Court Of Canada, Peter W. Hogg
Osgoode Hall Law Journal
Peter Hogg, a constitutional law scholar, was retained by the Commissioner for Federal Judicial Affairs to provide advice to the Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada as to its procedures. His account of the public hearing provides an insider's viewpoint of the historic process undertaken for the appointment of Justice Rothstein. His opening remarks to the committee, appended to this commentary, set out the parameters of questioning for the hearing, but raise additional questions with regard to the appropriate limits of judicial speech.
A New Era In The Selection Of Supreme Court Judges?, Jacob Ziegel
A New Era In The Selection Of Supreme Court Judges?, Jacob Ziegel
Osgoode Hall Law Journal
No abstract provided.
Parliamentary Scrutiny Of Supreme Court Nominees: A View From The United Kingdom, Kate Malleson
Parliamentary Scrutiny Of Supreme Court Nominees: A View From The United Kingdom, Kate Malleson
Osgoode Hall Law Journal
No abstract provided.
The South African Judicial Appointments Process, Penelope E. Andrews
The South African Judicial Appointments Process, Penelope E. Andrews
Osgoode Hall Law Journal
No abstract provided.
Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati
Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati
Faculty Scholarship
No abstract provided.
A Tournament Of Judges?, Stephen Choi, Mitu Gulati
A Tournament Of Judges?, Stephen Choi, Mitu Gulati
Faculty Scholarship
We suggest a Tournament of Judges where the reward to the winner is elevation to the Supreme Court. Politics (and ideology) surely has a role to play in the selection of justices. However, the present level of partisan bickering has resulted in delays in judicial appointments as well as undermined the public's confidence in the objectivity of justices selected through such a process. More significantly, much of the politicking is not transparent, often obscured with statements on a particular candidate's "merit"- casting a taint on all those who make their way through the judicial nomination process. We argue that the …
Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova
Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova
Faculty Scholarship
No abstract provided.