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Judges

2017

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Full-Text Articles in Jurisprudence

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger Dec 2017

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.


A New Deal Approach To Statutory Interpretation: Selected Cases Authored By Justice Robert Jackson, Charles Patrick Thomas Dec 2017

A New Deal Approach To Statutory Interpretation: Selected Cases Authored By Justice Robert Jackson, Charles Patrick Thomas

Journal of Legislation

No abstract provided.


Who's Afraid Of Judicial Activism? Reconceptualizing A Traditional Paradigm In The Context Of Specialized Domestic Violence Court Programs, Jennifer L. Thompson Nov 2017

Who's Afraid Of Judicial Activism? Reconceptualizing A Traditional Paradigm In The Context Of Specialized Domestic Violence Court Programs, Jennifer L. Thompson

Maine Law Review

The Specialized Domestic Violence Pilot Project (Pilot Project), implemented in York and Portland in July and August 2002, is the result of the collaborative efforts of the District Court system, law enforcement, prosecutors, members of the defense bar, and various community agencies offering services to victims and perpetrators. District court judges are largely responsible for overseeing the changes in court procedures and implementing the new protocols in domestic violence cases. The Pilot Project, and the changes it is making to the role that courts play in domestic violence cases, represents a significant departure from the procedures followed by traditional court …


The False Idolarty Of Rules-Based Law, John C. Sheldon Nov 2017

The False Idolarty Of Rules-Based Law, John C. Sheldon

Maine Law Review

When the Supreme Court outlawed segregation in public schools in 1954, it acknowledged this social truth: assigning separate public facilities to separate classes of people fosters inequality among those classes. Although Brown v. Board of Education of Topeka addressed only educational facilities, the Court quickly broadened the scope of its decision, applying it to racial discrimination in or at public beaches, buses, golf courses, parks, municipal airport restaurants and state courtrooms. And although Brown addressed only racial discrimination, it quickly became the basis for condemning many forms of discrimination, including race, religion, wealth, gender, age, and disability. What gave Brown …


Reflections On The Challenging Proliferation Of Mental Health Issues In The District Court And The Need For Judicial Education, Jessie B. Gunther Nov 2017

Reflections On The Challenging Proliferation Of Mental Health Issues In The District Court And The Need For Judicial Education, Jessie B. Gunther

Maine Law Review

Maine's courts constantly deal with litigants with mental health issues. Historically, our decisions have relied on expert testimony addressing specific issues of responsibility, risk, and treatment. In recent years, by my observation, court involvement in the treatment process has increased, but the availability of expert evidence has decreased. Thus, we as judges have become the ultimate decision-makers regarding litigants' mental health treatment in both criminal and civil contexts, without supporting expert testimony. In the face of this development, three interconnected issues arise. The first issue is whether judges should even attempt to fill the void caused by lack of expert …


Abuse Of Discretion: Maine's Application Of A Malleable Appellate Standard, Andrew M. Mead Nov 2017

Abuse Of Discretion: Maine's Application Of A Malleable Appellate Standard, Andrew M. Mead

Maine Law Review

It is not unusual for an appellate court to simply announce: “In the circumstances of this case, the trial justice did not abuse his discretion ....” No further clarification or elaboration is offered by the learned justices of the court. The parties are left with a final judgment, but little understanding of the appellate court's review process. Although the objective of finality is satisfied, the objective of clarity is ignored. When litigants and counsel are faced with similar factual or legal circumstances in the future, they remain without guidance or insight into the factors that the appellate court deemed to …


Judges, Racism, And The Problem Of Actual Innocence, Stephen J. Fortunato Jr. Nov 2017

Judges, Racism, And The Problem Of Actual Innocence, Stephen J. Fortunato Jr.

Maine Law Review

The facts and data are in and the conclusion they compel is bleak: the American criminal justice system and its showpiece, the criminal trial, harbor at their core a systemic racism. For decades, criminologists, law professors, sociologists, government statisticians, and others have been collecting and collating data on crime, punishment, and incarceration in the United States. These intrepid scholars have looked at crime, criminals, and the justice system from all angles—the race of defendants and victims; the relationship of poverty to criminality; severity of crime; severity of punishment; incarceration rates for different racial groups; sentencing and sentence disparities; and so …


Witness For The Client: A Judge's Role In Increasing Awareness In The Defendant, Joyce Wheeler Nov 2017

Witness For The Client: A Judge's Role In Increasing Awareness In The Defendant, Joyce Wheeler

Maine Law Review

My participation in a new drug treatment court over the last few years signifies a transformation of this judge's application of herself in the courtroom. I have moved from the traditional role of judge to a more fluid role in which I begin from the stance as witness for the client and, when necessary, move to the more traditional decision-making responsibility of a judge. Awareness of the change occurred over time, but became most apparent in the context of an adult drug treatment court that integrates drug and alcohol treatment into the criminal justice system. A number of factors support …


When The Court Speaks: Effective Communication As A Part Of Judging, Daniel E. Wathen Nov 2017

When The Court Speaks: Effective Communication As A Part Of Judging, Daniel E. Wathen

Maine Law Review

One of my early judicial role models, Justice James L. Reid of the Maine Superior Court, was sentencing a defendant for a murder committed within the confines of the Maine State Prison. The defendant was already serving a life sentence for another murder at the time the offense was committed. Because Maine has no parole or capital punishment, the sentencing options were limited and ultimately meaningless. As Jim imposed a life sentence consecutive to the existing life sentence, the defendant rose in his manacles and uttered an early Anglo-Saxon version of “screw you.” Jim, rising from the bench and moving …


Some Reflections On Dissenting, Kermit V. Lipez Nov 2017

Some Reflections On Dissenting, Kermit V. Lipez

Maine Law Review

In the collegial world of appellate judging, where the dominant impulse is consensus, dissents depart from the norm. If their language is sharp, the dissents may offend colleagues and worry court watchers who expect consensus. These self-assigned opinions also add to the pressures of the work. Given these implications, the choice to dissent should never be a casual one. You must weigh the institutional and personal costs and benefits, understand the purpose of the dissent and the audiences for it, and always be attentive to style and tone. In a haphazard sort of way, I consider these issues when I …


Judges And Judicial Process In The Jurisprudence Of St. Thomas Aquinas, Charles P. Nemeth, J.D., Ph.D., Ll.M. Nov 2017

Judges And Judicial Process In The Jurisprudence Of St. Thomas Aquinas, Charles P. Nemeth, J.D., Ph.D., Ll.M.

The Catholic Lawyer

No abstract provided.


Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn Nov 2017

Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn

Faculty Scholarship

Professor Nunn provides an introduction for the Symposium: The Least Understood Branch: The Demands and Challenges of the State Judiciary.


The Judge And His Clerks, Barbara F. Riegelhaupt, Kaighn Smith Jr., J. Peter Byrne Oct 2017

The Judge And His Clerks, Barbara F. Riegelhaupt, Kaighn Smith Jr., J. Peter Byrne

Maine Law Review

In his memoir, Life and Times in the Three Branches, Judge Coffin recounts the history of the institution of the law clerk and observes, “I was the first such creature Maine had seen.” He served as a clerk from April 1947 to June 1949 for United States District Court Judge John D. Clifford, working in the same chambers that he would later inhabit as a judge. Over the course of his more than four decades on the Court of Appeals, Judge Coffin would have sixty-eight clerks of his own. Those of us lucky enough to be in that family of …


The Speeches Of Frank M. Coffin: A Sideline To Judging, Daniel E. Wathen, Barbara Riegelhaupt Oct 2017

The Speeches Of Frank M. Coffin: A Sideline To Judging, Daniel E. Wathen, Barbara Riegelhaupt

Maine Law Review

The Authors of this Article are engaged in a separate project to publish the full collection of law-related speeches delivered by Judge Coffin during his tenure on the bench. That collection in its entirety consists of more than 125 speeches, and it is a treasure trove of thoughts on the judiciary as an institution, the law, judging, the legal profession, legal education, and legal luminaries past and present. The speeches are also worthy of study purely as examples of communication, advocacy, speechcraft, composition, humor, and whimsy. Within the confines of this Article, the modest goal is to provide samples of …


In His Own Words: Judge Coffin And Workability, William C. Kelly Jr. Oct 2017

In His Own Words: Judge Coffin And Workability, William C. Kelly Jr.

Maine Law Review

Early in his judicial career, Judge Coffin proffered the concept of “workability” as one of the core factors in judging. Justice and Workability: Un Essai, his first published reflection on this idea, appeared in the Suffolk University Law Review in 1971. To frame the discussion, he started with a formal definition: “[T]he extent to which a rule protecting a right, enforcing a duty, or setting a standard of conduct—which is consistent with and in the interests of social justice—can be pronounced with reasonable expectation of effective observance without impairing the essential functioning of those to whom the rule applies.” This …


The Ways Of A Judge And On Appeal, Kermit V. Lipez Oct 2017

The Ways Of A Judge And On Appeal, Kermit V. Lipez

Maine Law Review

What do you do when your judicial hero, the author of two important books on appellate judging, was for many years your neighbor, friend, colleague, and mentor? You revel in your good fortune, and you share your admiration for his books. Judge Coffin’s long involvement in the political world contributed significantly to a primary focus of his two books on appellate judging, The Ways of a Judge, published in 1980, and On Appeal, published in 1994. As a political organizer, a candidate for public office, a Congressman, and an administrator in a federal agency, Judge Coffin understood his accountability to …


Coffin's Court: A Colleague's View, Levin Campbell Oct 2017

Coffin's Court: A Colleague's View, Levin Campbell

Maine Law Review

These reminiscences focus on the eleven years, from 1972 to 1983, that Frank M. Coffin of Maine was the Chief Judge of the United States Court of Appeals for the First Circuit. While Coffin’s judicial career extended over more than forty years, I chose this period because it was a time when his influence over the court’s work was at its peak, as well as because he himself later singled it out as a “judicial Garden of Eden,” during which the First Circuit enjoyed its status as the last remaining three-judge federal court of appeals in the nation.


Frank Morey Coffin's Political Years: Prelude To A Judgeship, Donald E. Nicoll Oct 2017

Frank Morey Coffin's Political Years: Prelude To A Judgeship, Donald E. Nicoll

Maine Law Review

Each day when I go to my study, I see a wood block print of two owls gazing at me with unblinking eyes. Ever alert, they remind me of the artist, who in his neat, fine hand, titled the print “Deux Hiboux,” inscribed it to the recipients and signed it simply “FMC 8-2-87.” In addition to his talents as an artist and friend in all seasons, FMC was a remarkable public servant in all three branches of the federal government and, with his friend and colleague Edmund S. Muskie, a creative political reformer for the State of Maine. Throughout his …


Frank Coffin And Enlightened Governance, Robert A. Katzmann Oct 2017

Frank Coffin And Enlightened Governance, Robert A. Katzmann

Maine Law Review

I have often thought that Judge Frank M. Coffin is one of a handful of statesmen of recent times I could easily imagine in Philadelphia in the summer of 1787 (indeed, as a central figure in a David McCollough biography). If he had been, as competing factions struggled to find solutions to thorny issues, Madison’s Notes would inevitably and often have recorded: “With negotiations on the verge of collapse, all eyes turned to Frank Coffin, who found not only the key to compromise, but also the better way.”


The Legacy Of Judge Frank M. Coffin, Peter R. Pitegoff Oct 2017

The Legacy Of Judge Frank M. Coffin, Peter R. Pitegoff

Maine Law Review

Judge Coffin had adopted the University of Maine School of Law as if it were his own. He was a committed friend to the Law School and served on the advisory Board of Visitors for almost two decades. Like so many others, I felt his keen personal commitment as well, with his periodic calls and visits, his steady counsel and encouragement. Before arriving in Maine, I had known of Judge Coffin. Little did I anticipate that he would so enrich my experience as Dean at Maine Law. He remains a role model to so many of our graduates and leaves …


Justice Blackmun And Individual Rights, Diane P. Wood Oct 2017

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …


Bringing Compassion Into The Province Of Judging: Justice Blackmun And The Outsiders, Pamela S. Karlan Oct 2017

Bringing Compassion Into The Province Of Judging: Justice Blackmun And The Outsiders, Pamela S. Karlan

Dickinson Law Review (2017-Present)

No abstract provided.


Justice Blackmun And Preclusion In The State-Federal Context, Karen Nelson Moore Oct 2017

Justice Blackmun And Preclusion In The State-Federal Context, Karen Nelson Moore

Dickinson Law Review (2017-Present)

No abstract provided.


Adjudication In The Age Of Disagreement, John Fabian Witt Oct 2017

Adjudication In The Age Of Disagreement, John Fabian Witt

Fordham Law Review

In the time I have here with you today I would like to offer the beginnings of an answer. It does not lie in the distance between the court’s traditions and Manton’s conduct. That would be too easy. At base, I think the answer lies in something far more subtle and interesting: the relationship between acentral tradition of the Second Circuit and one of the great questions we face as a society today. That question is how to deal with disagreement.


The Phenomenology Of Medico-Legal Causation, Nicholas Hooper Oct 2017

The Phenomenology Of Medico-Legal Causation, Nicholas Hooper

Dalhousie Law Journal

The language of counterfactual causation employed from the bench obscures the analytical vacuity of the "butfor" test. This paper takes issue with the consistent recourse to "common sense" as a methodological tool for determining the deeply complex issue of causality. Despite manifestly empty gestures to, e.g., robust pragmatism, the current approach imposes the dominant values of the judiciary in a manner that perpetuates the current distribution of power. Whatever the merits of counterfactual inquiry, its legal iteration requires judges to construct a hypothetical narrative about "how things generally happen." This, in turn, impels a uniquely comprehensive brand ofjudicialcreativity. The results …


Toward A Theory Of Judicial Decisionmaking: A Synthesis Of Ideologist Jurisprudence And Doctrinalism, Raymond A. Belliotti Sep 2017

Toward A Theory Of Judicial Decisionmaking: A Synthesis Of Ideologist Jurisprudence And Doctrinalism, Raymond A. Belliotti

The Catholic Lawyer

No abstract provided.


Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky Jun 2017

Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky Jun 2017

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Rethinking Criminal Contempt, John A.E. Pottow, Jason S. Levin May 2017

Rethinking Criminal Contempt, John A.E. Pottow, Jason S. Levin

Articles

It is of course too early to tell whether we are in a new era of bankruptcy judge (dis)respectability. Only time will tell. But this Article performs a specific case study, on one discrete area of bankruptcy court authority, based upon a particular assumption in that regard. The assumption is this: certain high-salience judicial events-here, the recent Supreme Court bankruptcy judge decisions, coupled with earlier constitutional precedents involving the limits of Article III-can trigger overreaction and hysteria. Lower courts may read these Supreme Court decisions as calling into question the permissibility of certain bankruptcy court practices under the Constitution, and …


Narratives Of Self-Government In Making The Case, Benjamin L. Berger Apr 2017

Narratives Of Self-Government In Making The Case, Benjamin L. Berger

The Journal of Appellate Practice and Process

No abstract provided.