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The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth Jan 2023

The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth

Touro Law Review

This Article provides a comparative analysis of Judge Benjamin Cardozo’s tort decisions in Palsgraf v. Long Island Railroad Co., one of his most famous tort decisions, contrasted with a lesser-known tort opinion in Hynes v. New York Central Railroad Co. The Author attempts to address Cardozo’s humanistic and intellectual dichotomies which are exemplified by these two real-life tort precedents—one of which, Palsgraf, most practitioners may only have a distant recall. A historical overview of Cardozo’s life is also discussed. These two decisions portray Cardozo as an emotive human being exercising hit-or-miss judging. This theme provides a differ viewpoint from Cardozo’s …


Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim Jan 2023

Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim

Faculty Scholarship

Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is …


#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez Jan 2023

#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez

Faculty Scholarship

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district …


Is Disclosure And Certification Of The Use Of Generative Ai Really Necessary?, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown Jan 2023

Is Disclosure And Certification Of The Use Of Generative Ai Really Necessary?, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown

Faculty Scholarship

No abstract provided.


Judicial Management Inside The Courts, Marin K. Levy Jan 2023

Judicial Management Inside The Courts, Marin K. Levy

Faculty Scholarship

No abstract provided.


Judging Without A J.D., Sara Sternberg Greene, Kristen M. Renberg Jan 2022

Judging Without A J.D., Sara Sternberg Greene, Kristen M. Renberg

Faculty Scholarship

One of the most basic assumptions of our legal system is that when two parties face off in court, the case will be adjudicated before a judge who is trained in the law. This Essay begins by showing that, empirically, the assumption that most judges have legal training does not hold true for many low-level state courts. Using data we compiled from all fifty states and the District of Columbia, we find that thirty-two states allow at least some low-level state court judges to adjudicate without a law degree, and seventeen states do not require judges who adjudicate eviction cases …


John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell Jan 2021

John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell

Faculty Scholarship

No abstract provided.


From Judge To Dean And Back Again: Reflections On Transitions, David F. Levi Jan 2020

From Judge To Dean And Back Again: Reflections On Transitions, David F. Levi

Faculty Scholarship

No abstract provided.


The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg Jan 2020

The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg

Faculty Scholarship

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative …


Sandra Day O’Connor’S "First" Principles: A Constructive Vision For An Angry Nation, Lisa Kern Griffin Jan 2020

Sandra Day O’Connor’S "First" Principles: A Constructive Vision For An Angry Nation, Lisa Kern Griffin

Faculty Scholarship

During her 25-year tenure on the Supreme Court, Justice Sandra Day O’Connor cast the decisive votes to resolve the most emotional debates, yet she maintained collegiality among the Justices and retained the public’s high regard. A recent biography by historian and journalist Evan Thomas chronicles her extraordinary personal qualities, remarkable professional journey, and constructive brand of patriotism. This book review essay describes a legacy in three parts: a lived example of how to thrive in the face of challenges, a jurisprudence driven by the courage to make compromises, and a theory about the long game of American democracy. First reintroduces …


Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan Jun 2019

Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan

Barry Sullivan

No abstract provided.


Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer Jun 2019

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

James T Gathii

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …


Visiting Judges, Marin K. Levy Jan 2019

Visiting Judges, Marin K. Levy

Faculty Scholarship

Despite the fact that Article III judges hold particular seats on particular courts, the federal system rests on judicial interchangeability. Hundreds of judges “visit” other courts each year and collectively help decide thousands of appeals. Anyone from a retired Supreme Court Justice to a judge from the U.S. Court of International Trade to a district judge from out of circuit may come and hear cases on a given court of appeals. Although much has been written about the structure of the federal courts and the nature of Article III judgeships, little attention has been paid to the phenomenon of “sitting …


Stevens, J., Dissenting: The Legacy Of Heller, Joseph Blocher, Darrell A. H. Miller Jan 2019

Stevens, J., Dissenting: The Legacy Of Heller, Joseph Blocher, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.


Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …


Certification Of Legal Questions To The Utah Supreme Court, David Nuffer Jan 2018

Certification Of Legal Questions To The Utah Supreme Court, David Nuffer

Duke Law Master of Judicial Studies Theses

For 30 years, federal courts have certified questions of state law to the Utah Supreme Court. This thesis examines the history and utility of the process and recommends changes to the process in the federal district court and in the Utah Supreme Court.

The current focus of federal judges in certifying questions is on utility for the case before the court. But certification of questions from a federal court to a state court is an expression of federalism—a humble acknowledgment by a federal authority which is often regarded as supreme that the state is the proper and best authority to …


Strategic Publication, Ben Grunwald Jan 2018

Strategic Publication, Ben Grunwald

Faculty Scholarship

Under the standard account of judicial behavior when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.

This Article argues that a divided panel has a third option: strategic publication. The panel can choose …


One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller Jan 2018

One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller

Touro Law Review

No abstract provided.


Justice Benjamin Nathan Cardozo And His Two Most Important Questions: Reflections On The Choice Of Tycho Brahe, Randy Lee Jan 2018

Justice Benjamin Nathan Cardozo And His Two Most Important Questions: Reflections On The Choice Of Tycho Brahe, Randy Lee

Touro Law Review

No abstract provided.


Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy Jan 2017

Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy

Faculty Scholarship

It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews …


Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan Jan 2016

Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan

Faculty Publications & Other Works

No abstract provided.


Would United States Judges Benefit From More Graduate Training?, Nancy Joseph Jan 2016

Would United States Judges Benefit From More Graduate Training?, Nancy Joseph

Duke Law Master of Judicial Studies Theses

In the United States, there is no degree or training required to become a judge. On-the-job education primarily consists of orientation programs and updates on substantive and procedural law. Although these programs serve an important need, they are generally of limited duration and scope, taught by fellow judges, and are not degree programs. Two notable exceptions are the now-defunct University of Virginia Graduate Program for Judges, which offered an LL.M. in judicial process for sitting appellate judges and the Duke University School of Law’s LL.M. in judicial studies—also for sitting judges. Do judges benefit from such degree programs? There has …


What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga Jan 2016

What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga

Duke Law Master of Judicial Studies Theses

From the criminal trial of Aaron Burr on charges of treason to modern-day litigation involving the CIA, the state secrets privilege presents a thorny issue for federal judges. Judge Trenga examines the legal issues at the heart of this privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests, and military secrets—and the two primary doctrinal tracks judges invoke. Then, based on interviews with thirty-one federal judges, Judge Trenga offers insights into how judges think about applying the state secrets privilege to sensitive material.


Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos Jan 2016

Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos

Faculty Scholarship

No abstract provided.


The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel Jan 2016

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …


How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi Jan 2016

How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi

Faculty Scholarship

Richard Posner famously modeled judges as Bayesians in his book, How Judges Think? A key element of being Bayesian is that one constantly updates with new information. This model of the judge who is constantly learning and updating, particularly about local conditions, also is one of the reasons why the factual determinations of trial judges are given deference on appeal. But do judges in fact act like Bayesian updaters? Judicial evaluations of search warrant requests for probable cause provides an ideal setting to examine this question because the judges in this context have access to information on how well they …


Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg Jan 2016

Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg

Faculty Scholarship

The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of Justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique dataset of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the Justices …


Courts Of Good And Ill Repute: Garoupa And Ginsburg’S Judicial Reputation: A Comparative Theory, Tracey E. George, G. Mitu Gulati Jan 2016

Courts Of Good And Ill Repute: Garoupa And Ginsburg’S Judicial Reputation: A Comparative Theory, Tracey E. George, G. Mitu Gulati

Faculty Scholarship

Nuno Garoupa and Tom Ginsburg have published an ambitious book that seeks to account for the great diversity of judicial systems based, in part, on how courts are designed to marshal the power of a high public opinion of the judiciary. Judges, the book posits, care deeply about their reputations both inside and outside the courts. Courts are designed to capitalize on judges’ desire to maximize their reputation, and judges’ existing stock of reputation can affect the design of the courts which they serve. We find much to like in this book, ranging from its intriguing and ambitious positive claims …


Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer Jan 2016

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …


Antipodal Invective: A Field Gude To Kangaroos In American Courtrooms, Parker B. Potter Jr. Jul 2015

Antipodal Invective: A Field Gude To Kangaroos In American Courtrooms, Parker B. Potter Jr.

Akron Law Review

This article discusses three other groups of opinions that use the phrase “kangaroo court.” The first section describes the various decision-making behaviors that qualify a tribunal to wear the Scarlet K. It does so by discussing opinions in which a judge or a litigant has given a definition of the term “kangaroo court” when that term is used metaphorically, as invective, to disparage the fairness of another tribunal. The second section describes the habitat of adjudicatory kangaroos by examining opinions like Silver v. Castle Memorial Hospital, in which a judge has called another tribunal a kangaroo court. The third section …