Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, 2010 Univ. of Connecticut School of Law
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya
Faculty Articles and Papers
This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read Title …
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
Faculty Scholarship
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 …
Review Of Labor And Employment Decisions From The United States Supreme Court’S 2008–2009 Term, 2010 Indiana University Maurer School of Law
Review Of Labor And Employment Decisions From The United States Supreme Court’S 2008–2009 Term, Kenneth G. Dau-Schmidt, Todd C. Dvorak
Articles by Maurer Faculty
In its most recently completed Term, the United States Supreme Court decided eight labor and employment law cases of some consequence. The decided cases covered a broad array of labor and employment subjects, including: the Employee Retirement Income Security Act (ERISA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), public sector labor law, and private sector labor law. Practitioners who specialize in a particular area might be tempted to focus on only the cases in their area. Academics might be tempted to try to devise some economic or logical theory …
Judicial Elections In The Aftermath Of White, Caperton, And Citizens United, 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.
Judicial Selection, Judicial Disqualification, And The Role Of Money In Judicial Campaigns, 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.
The New Calculus Of Punitive Damages For Employment Discrimination Cases, 2010 University of Cincinnati - Main Campus
The New Calculus Of Punitive Damages For Employment Discrimination Cases, Sandra Sperino
Oklahoma Law Review
No abstract provided.
(Re) Constructing Judicial Ethics In Canada, 2010 Dalhousie University - Schulich School of Law
(Re) Constructing Judicial Ethics In Canada, Richard Devlin Frsc
Articles, Book Chapters, & Popular Press
Any discussion of judicial ethics and accountability -- whether it is at the state, national, or international level-inevitably requires engagement with two key ideals: impartiality and independence. Ideals are important because they can provide a trajectory for human action. But ideals can also be a problem because their generality and abstraction can cause one to prevaricate -- or even pontificate -- when it comes to the immediate and the pragmatic Indeed, there are times when ideals such as impartiality and independence can become false gods insofar as they promise salvation but ultimately, deliver little. Consequently, when one is asked to …
Diversity And The Federal Bench, 2010 University of Richmond
Diversity And The Federal Bench, Carl W. Tobias
Law Faculty Publications
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 paper conducts. Part I briefly assesses modern chief executives' divergent records in naming …
Improving Federal Judicial Selection, 2010 University of Richmond
Improving Federal Judicial Selection, Carl W. Tobias
Law Faculty Publications
Review of Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (2006).
It's The Hard Luck Life: Women's Moral Luck And Eucatastrophe In Child Custody Allocation, 2010 University of Colorado Law School
It's The Hard Luck Life: Women's Moral Luck And Eucatastrophe In Child Custody Allocation, Lolita Buckner Inniss
Publications
No abstract provided.
Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, 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 decision …
Understanding Caperton: Judicial Disqualification Under The Due Process Clause, 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 of judicial impartiality …
Law As Hidden Architecture: Law, Politics, And Implementation Of The Burnham Plan Of Chicago Since 1909, 43 J. Marshall L. Rev. 375 (2010), 2010 UIC School of Law
Law As Hidden Architecture: Law, Politics, And Implementation Of The Burnham Plan Of Chicago Since 1909, 43 J. Marshall L. Rev. 375 (2010), Richard J. Roddewig
UIC Law Review
No abstract provided.
The International Criminal Court: From Rome To Kampala, 43 J. Marshall L. Rev. 515 (2010), 2010 UIC School of Law
The International Criminal Court: From Rome To Kampala, 43 J. Marshall L. Rev. 515 (2010), Philippe Kirsch
UIC Law Review
No abstract provided.
Current Issues In Judicial Disqualifications Symposium 2011, 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
Confirmatory Legislative History , 2010 Fordham University School of Law
Confirmatory Legislative History , James J. Brudney
Faculty Scholarship
Textualists and intentionalists regularly lock horns over the proper approach to construing statutory language regarded as inconclusive. The interpretive debate seems less contentious, however, when the words of the law are deemed clear. There may be reasonable disagreement as to whether the text at issue in a particular controversy has a plain meaning, but if it does then that meaning arguably preempts further inquiry. Since 1990, Supreme Court majority opinions are replete with declarations such as: "Given [a] straightforward statutory command, there is no reason to resort to legislative history"; or "we do not resort to legislative history to cloud …
Situating Inherent Power Within A Rules Regime, 2010 Saint Louis University School of Law
Situating Inherent Power Within A Rules Regime, Samuel P. Jordan
All Faculty Scholarship
My goal in this short Essay is to describe the way that inherent power is understood and applied within our procedural framework, and to suggest the need for a more robust account of the contemporary relationship between inherent power and formal procedural rules. Part I describes two roles – one legitimate and one not – that inherent power can play vis-à-vis the rules. Part II examines how those roles are often confused or manipulated, with the result that inherent power remains available to justify judicial action in an undesirably large class of cases. Finally, Part III explores ways to clarify …
The Costs Of Judging Judges By The Numbers, 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 …
Judge Bell And Professional Courage, 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.
Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, 2010 University of Pennsylvania Carey Law School
Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, Catherine T. Struve
All Faculty Scholarship
No abstract provided.