All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, 2010 Syracuse University
All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee
College of Law Faculty Scholarship
This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).
The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.
Comparing law to the practice of common courtesy ...
Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, 2010 University of Colorado Law School
Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff
This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from ...
Rawls And Reparations, 2010 San Francisco State University
Rawls And Reparations, Martin D. Carcieri
Michigan Journal of Race and Law
In the past two years, four related events have sharpened debates on race in the U.S.: President Obama's election, the nomination of Judge Sonia Sotomayor to the Supreme Court, that Court's ruling in Ricci v. DeStefano, and the arrest of Obama's friend, Harvard professor Henry Gates. The President has spoken of a "teaching moment" arising from these events. Moreover, his writings, speeches and lawmaking efforts illustrate the contractual nature of Obama's thinking. The President (and all concerned citizens) should thus find useful an analysis of racial policy and justice in light of the work of ...
The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against Humanity And War Crimes, 43 J. Marshall L. Rev. 603 (2010), Jordan J. Paust
The John Marshall Law Review
No abstract provided.
Forgotten Namesake: The Illinois Good Samaritan Act's Inexcusable Failure To Provide Immunity To Non-Medical Rescuers, 43 J. Marshall L. Rev. 1097 (2010), David Weldon
The John Marshall Law Review
No abstract provided.
“Runaway Train”: Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, 2010 Barry University School of Law
“Runaway Train”: Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl
Barry Law Review
This paper will argue that, in the absence of effective alternatives, the new law granting court-martial jurisdiction over civilians is a necessary step in effectively controlling crimes by private contractors and other civilians accompanying U.S. armed forces overseas if other measures are not effectuated. Part II will look at two important Supreme Court decisions that currently restrict the military’s ability to court-martial civilians, and it will also highlight the government’s attempts over the past 50 years to come up with a solution to the problem. Part III will examine three alternatives to the amendment to Article 2 ...
A Review Of Richard A. Posner, How Judges Think (2008), 2010 United States Court of Appeals for the Sixth Circuit
A Review Of Richard A. Posner, How Judges Think (2008), Jeffrey S. Sutton
Michigan Law Review
I was eager to enter the judiciary. I liked the title: federal judge. I liked the job security: life tenure. And I could tolerate the pay: the same as Richard Posner's. That, indeed, may have been the most flattering part of the opportunity-that I could hold the same title and have the same pay grade as one of America's most stunning legal minds. Don't think I didn't mention it when I had the chance. There is so much to admire about Judge Posner-his lively pen, his curiosity, his energy, his apparent understanding of: everything. He has ...
Structure And Precedent, 2010 Willamette University College of Law
Structure And Precedent, Jeffrey C. Dobbins
Michigan Law Review
The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit ...
A Call For Judicial Scrutiny: How Increased Judicial Discretion Has Led To Disparity And Unpredictability In Federal Sentencings For Child Pornography, 2010 Seattle University School of Law
A Call For Judicial Scrutiny: How Increased Judicial Discretion Has Led To Disparity And Unpredictability In Federal Sentencings For Child Pornography, Loren Rigsby
Seattle University Law Review
The United States Sentencing Commission (USSC) has made child pornography related crimes among the most harshly punishable federal offenses. Nevertheless, sentencing judges have regained the right to depart from the recommended Federal Sentencing Guidelines (Guidelines). The Guideline range for child pornography reflects sound and clear congressional intent to impose harsh penalties on defendants to deter, and ultimately eliminate, the market for child pornography. For this reason, this Comment argues that sentences that fall outside the Guidelines range should be reviewed with much greater scrutiny and should not be used solely to reflect a judge’s view that the advised sentence ...
Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, 2010 The Catholic University of America, Columbus School of Law
Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux
Scholarly Articles and Other Contributions
Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria - in Bell Atlantic v. Twombly and Ashcroft v. Iqbal - sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is ...
All Rise! Standing In Judge Betty Fletcher’S Court, 2010 Duke Law School
All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by ...
Evaluating Judges And Judicial Institutions: Reorienting The Perspective, 2010 Duke Law School
Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi
Empirical scholarship on judges, judging, and judicial institutions, a staple in political science, is becoming increasingly popular in law schools. We propose that this scholarship can be improved and enhanced by greater collaboration between empirical scholars, legal theorists, and the primary subjects of the research, the judges. We recently hosted a workshop that attempted to move away from the conventional mode of involving judges and theorists in empirical research, where they serve as commentators on empirical studies that they often see as reductionist and mis-focused. Instead, we had the judges and theorists set the discussion agenda for the empiricists by ...
On Not Being “Not An Originalist”, 2010 Duke Law School
On Not Being “Not An Originalist”, H. Jefferson Powell
No abstract provided.
Reply To Richard A. Leo And Jon B. Gould, 2010 University of Michigan Law School
Reply To Richard A. Leo And Jon B. Gould, Samuel R. Gross, Barbara O'Brien
The following is a letter to the Ohio State Journal of Criminal Law received from Professors Samuel Gross and Barbara O'Brien, responding to an article published in the Journal in Fall 2009 by Professors Richard Leo and Jon Gould. This letter is followed by a reply from Professors Leo and Gould. Professors Gross and O'Brien did not see the reply prior to the Journal going to press. As we have indicated before, we welcome letters to the Journal from readers on any topic covered in a prior issue. - Editors
E Pluribus Unum: Data And Operations Integration In The California Criminal Justice System, 2010 Santa Clara University School of Law
E Pluribus Unum: Data And Operations Integration In The California Criminal Justice System, W. David Ball
This Article reflects some of the insights from the Stanford Criminal Justice Center's (SCJC's) year-long project on data and operations integration in California's criminal justice system. Part I lays out some of the benefits of an integrated system as a means of illustrating why law enforcement agencies across the state are actively pursuing data integration. Part II discusses three organizational and political obstacles to creating an integrated system: defining what we mean by the criminal justice "system," drawing boundaries of relevant networks, and resolving tensions among state and local agencies with concurrent jurisdiction. Part III then discusses ...
Why Did China Reform Its Death Penalty?, 2010 Santa Clara University School of Law
Why Did China Reform Its Death Penalty?, Kandis Scott
China recently reformed its death penalty laws, and as a result the government has executed fewer prisoners. The author explores possible reasons and policy concerns behind China's legal reform. These influences include international forces and domestic factors, such as the media, changed circumstances, compassion, and politics. Although hardly transparent, the underlying motivations for the revisions suggest that eventually China may abolish capital punishment, perhaps even before the United States does so.
Nature Or Nurture? Judicial Lawmaking In The European Court Of Justice And The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter
Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts’ authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies ...
A Coase Theorem For Constitutional Theory, 2010 Duke Law School
A Coase Theorem For Constitutional Theory, Neil S. Siegel
There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim—that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion—is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan ...
Harvard And Yale Ascendant: The Legal Education Of The Justices From Holmes To Kagan, 2010 Georgetown University Law Center
Harvard And Yale Ascendant: The Legal Education Of The Justices From Holmes To Kagan, Patrick J. Glen
Georgetown Law Faculty Publications and Other Works
With the nomination of Elena Kagan to be a justice of the United States Supreme Court, it is quite possible that eight of the nine justices will have graduated from only two law schools—Harvard and Yale. This article frames this development in the historical context of the legal education of those justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court is a relatively recent occurrence whose beginnings can be traced to Antonin Scalia’s 1986 confirmation. Prior to that time, although Harvard and Yale were consistently ...
The Future Of Problem-Solving Justice: An International Perspective, 2010 University of Maryland Francis King Carey School of Law
The Future Of Problem-Solving Justice: An International Perspective, Greg Berman, Aubrey Fox
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.