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Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller 2010 Washington & Lee University School of Law

Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller

Indiana Law Journal

This Article examines Justice Ginsburg's overlooked federalism jurisprudence and concludes that it almost perfectly complements President Bill Clinton's New Democratic centrism, especially his pro-state federalism agenda. The Article concludes that their nuanced, "centrist" approach to federalism has two characteristics. First,t hey value the states 'governing autonomy and show respect for the state agents that realize that autonomy. Second, they credit the states as intersubjective actors engaged in the pursuit of their interests, albeit in political processes usually carried out at the federal level.


Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew Steilen 2010 University at Buffalo School of Law

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew Steilen

Journal Articles

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the ...


Diversity And The Federal Bench, Carl Tobias 2010 University of Richmond

Diversity And The Federal Bench, Carl Tobias

Washington University Law Review

Justice Sonia Sotomayor's appointment was historic. She is the first Latina Supreme Court member and President Barack Obama's initial appointment. Her confirmation is the quintessential example of his commitment to increasing ethnic and gender diversity in the judiciary; it epitomizes how the administration has nominated and appointed people of color and women to the appellate and district courts. Enhancing diversity honors valuable goals. Selection across a presidency's initial fifteen months also creates the tone. These ideas suggest that the nascent administration's judicial selection merits evaluation, which this Article conducts. Part I briefly assesses modern chief executives ...


Judge Bell And Professional Courage, Larry D. Thompson 2010 University of Georgia School of Law

Judge Bell And Professional Courage, Larry D. Thompson

Scholarly Works

This article eulogizes Judge Griffin B. Bell, with an emphasis on the importance of professional standards in the legal field.


Moral Foundation Theory And The Law, Colin Prince 2010 Seattle University School of Law

Moral Foundation Theory And The Law, Colin Prince

Seattle University Law Review

Moral foundation theory argues that there are five basic moral foundations: (1) harm/care, (2) fairness/reciprocity, (3) ingroup/loyalty, (4) authority/respect, and (5) purity/sanctity. These five foundations comprise the building blocks of morality, regardless of the culture. In other words, while every society constructs its own morality, it is the varying weights that each society allots to these five universal foundations that create the variety. Haidt likens moral foundation theory to an “audio equalizer,” with each culture adjusting the sliders differently. The researchers, however, were not content to simply categorize moral foundations—they have tied the foundations ...


Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam 2010 University of Maine School of Law

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue ...


Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar 2010 St. John's University School of Law

Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar

Faculty Publications

This Article examines the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court's and individual Justices' rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions ...


Slavery Jurisprudence On The Supreme Court Of North Carolina, 1828-1858: William Gaston And Thomas Ruffin, Timothy C. Meyer 2010 Campbell University School of Law

Slavery Jurisprudence On The Supreme Court Of North Carolina, 1828-1858: William Gaston And Thomas Ruffin, Timothy C. Meyer

Campbell Law Review

In the years preceding the Civil War, two North Carolina Supreme Court Justices, Chief Justice Thomas Ruffin and Associate Justice William Gaston, offered starkly different legal opinions on issues relating to slavery. Despite broad similarities in their backgrounds and their agreement on many other legal and judicial issues, Ruffin and Gaston approached slavery from sharply contrasting perspectives. Both men used their positions on the bench to influence the treatment and legal status of slaves. While Ruffin vigorously defended the peculiar institution and took the concept of chattel to a logical extreme, Gaston denounced many of its dehumanizing elements. In fact ...


Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans 2010 Associate, Foley & Lardner, LLP, Milwaukee, WI

Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.


Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Scholarly Works

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the ...


The Costs Of Judging Judges By The Numbers, Marin K. Levy, Kate Stith, Jose A. Cabranes 2010 Duke Law School

The Costs Of Judging Judges By The Numbers, Marin K. Levy, Kate Stith, Jose A. Cabranes

Faculty Scholarship

This essay discredits current empirical models that are designed to “judge” or rank appellate judges, and then assesses the harms of propagating such models. First, the essay builds on the discussion of empirical models by arguing that (1) the judicial virtues that the legal empiricists set out to measure have little bearing on what actually makes for a good judge; and (2) even if they did, the empiricists’ chosen variables have not measured those virtues accurately. The essay then concludes that by generating unreliable claims about the relative quality of judges, these studies mislead both decision-makers and the public, degrade ...


Telling Through Type: Typography And Narrative In Legal Briefs, Derek H. Kiernan-Johnson 2010 University of Colorado Law School

Telling Through Type: Typography And Narrative In Legal Briefs, Derek H. Kiernan-Johnson

Articles

Most legal authors today self-publish, using basic word-processing software and letting the software’s default settings determine what their documents will look like when printed. As these settings are not optimized for legal texts, they do so at their peril. The default font Times New Roman, for example, as Chief Judge Frank Easterbrook warns, is "utterly inappropriate for long documents [such as] briefs."

Commentators have started urging a more deliberate approach to legal typography. Their suggestions, however, have been content-neutral, intended for all legal texts and focused on goals such as legibility and readability.

Typography, however, has much greater potential ...


The Necessity Procedure: Laws Of Torture In Israel And Beyond, 1987 - 2009, Itamar Mann, Omer Shatz 2010 Yale Law School

The Necessity Procedure: Laws Of Torture In Israel And Beyond, 1987 - 2009, Itamar Mann, Omer Shatz

Student Scholarship Papers

This article traces the history of the regulation of torture in Israel, and shows how it foreshadowed the legal understanding of torture in the United States in the wake of “The War on Terror.” Part I of the article demonstrates how the celebrated Israeli Supreme Court decision in Public Committee v. Israel, traditionally understood as a bold prohibition of torture, should instead be seen as institutionalizing and managing torture.

Since Public Committee, the Israeli executive and the judiciary worked hand in glove to protect this regime, which we label necessity management. Part II of the article revisits the Landau Commission ...


What Elena Kagan Could Have & Should Have Said (& Still Have Been Confirmed), Eric J. Segall 2010 Georgia State University College of Law

What Elena Kagan Could Have & Should Have Said (& Still Have Been Confirmed), Eric J. Segall

Faculty Publications By Year

During her confirmation hearings, Justice Kagan backed away from numerous critical comments she had previously made about the nomination process. No one knows why she changed her mind but it is likely that the shift resulted more from a political calculation than a change of heart about the nature of the process. This Commentary suggests that Justice Kagan could have testified consistently with her previously expressed views and still have been confirmed.


Current Issues In Judicial Disqualifications Symposium 2011, Michael W. Martin 2010 Fordham University School of Law

Current Issues In Judicial Disqualifications Symposium 2011, Michael W. Martin

Faculty Scholarship

Public confidence in the judiciary's integrity is critical, and


Wrongful Convictions In Singapore: A General Survey Of Risk Factors, Siyuan CHEN, Eunice CHUA 2010 Singapore Management University

Wrongful Convictions In Singapore: A General Survey Of Risk Factors, Siyuan Chen, Eunice Chua

Research Collection School Of Law

This article seeks to raise awareness about the potential for wrongful convictions in Singapore by analysing the factors commonly identified as contributing towards wrongful convictions in other jurisdictions, including institutional failures and suspect evidence. It also considers whether the social conditions in Singapore are favourable to discovering and publicising wrongful convictions. The authors come to the conclusion that Singapore does well on a number of fronts and no sweeping reforms are necessary However there are areas of risk viz the excessive focus on crime control rather than due process, which require some tweaking of the system.


(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor D. Quintanilla 2010 Indiana University Maurer School of Law

(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the element of scienter (fraudulent intent) in claims of federal securities fraud under Section 10(b) of the Exchange Act and, more specifically, the U.S. Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) from a social psychological perspective. The field of social psychology has documented a pervasive phenomena, the Fundamental Attribution Error, the failure of decision makers to consider situational explanations, including the force of environments and social and situational norms on human conduct. In light of robust social psychological research on the Fundamental Attribution Error, legal ...


Judicial Elections In The Aftermath Of White, Caperton, And Citizens United, Charles G. Geyh 2010 Indiana University Maurer School of Law

Judicial Elections In The Aftermath Of White, Caperton, And Citizens United, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.


The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer 2010 Indiana University Maurer School of Law

The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying to ...


Judicial Selection, Judicial Disqualification, And The Role Of Money In Judicial Campaigns, Charles G. Geyh 2010 Indiana University Maurer School of Law

Judicial Selection, Judicial Disqualification, And The Role Of Money In Judicial Campaigns, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.


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