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Full-Text Articles in Jurisprudence
Filling The Red State Federal Judicial Vacancies, Carl Tobias
Filling The Red State Federal Judicial Vacancies, Carl Tobias
Law Faculty Publications
District vacancies without nominees that plague red jurisdictions deserve emphasis in this Essay for several reasons. First, there are myriad district court jurists who trigger greater numbers of empty posts when they assume senior status, retire, or die, which triggers more issues. Legislators have created 677 active trial court positions, which dwarf the 179 active court of appeals judicial posts. The trial courts are tribunals of last resort for most cases; their numerous jurists are the only court members that many litigants encounter, and significantly more district court openings lack nominees. In contrast, appellate courts explicitly articulate considerable policy, include …
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh
Law Faculty Publications
Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …