Do Justices Time Their Retirements Politically? An Empirical Analysis Of The Timing And Outcomes Of Supreme Court Retirements In The Modern Era, 2019 Loyola University Chicago School of Law
Do Justices Time Their Retirements Politically? An Empirical Analysis Of The Timing And Outcomes Of Supreme Court Retirements In The Modern Era, Christine Kexel Chabot
Utah Law Review
As the rampant speculation preceding Justice Kennedy’s retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice’s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama’s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices’ retirement decisions and disagree on whether ...
Keynote Address: Staying Afloat And Engaged In Today's Flooded Marketplace Of Speech, 2019 United States Court of Appeals for the Seventh Circuit
Keynote Address: Staying Afloat And Engaged In Today's Flooded Marketplace Of Speech, Michael Y. Scudder
Notre Dame Law Review
The contributions to this Symposium cover substantial ground, address important issues, and offer much to react to. This Symposium, I submit, also occurs at a time of significance for the First Amendment in the Supreme Court. Perhaps the Court’s most fervent and consequential defender of free speech, Justice Anthony Kennedy, has retired. His impact on American constitutional law was enormous, including, in my view, in the area of free speech. I had the privilege of clerking for Justice Kennedy, admire him deeply as judge and person, and want to offer some reflections on what I see as a few ...
Simplified Courts Can't Solve Inequality, 2019 S.J. Quinney College of Law, University of Utah
Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter
Utah Law Faculty Scholarship
State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the ...
Social Media, Venue And The Right To A Fair Trial, 2019 Elisabeth Haub School of Law at Pace University
Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer
Pace Law Faculty Publications
Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social ...
Active Judicial Governance, 2019 University at Buffalo School of Law
Active Judicial Governance, James A. Gardner
Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.
Democratizing Interpretation, 2019 Selected Works
Democratizing Interpretation, Anya Bernstein
Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.
These outsourcing approaches show a disconnect between the questions judges pose and the methods they ...
Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan
The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional ...
Filling The Ninth Circuit Vacancies, 2019 College of William & Mary Law School
Filling The Ninth Circuit Vacancies, Carl Tobias
William & Mary Bill of Rights Journal
Upon Republican President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit experienced some pressing appellate vacancies, which the Administrative Office of the United States Courts (AO) carefully identified as “judicial emergencies” because the tribunal resolves a massive docket. Last year’s death of the iconic liberal champion Stephen Reinhardt and the late 2017 departure of libertarian former Chief Judge Alex Kozinski—who both assumed pivotal circuit leadership roles over numerous years—and a few of their colleagues’ decision to leave active court service thereafter, mean the tribunal presently confronts four judicial emergencies and resolves ...
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, 2019 College of William & Mary Law School
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
William & Mary Law Review
Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor ...
To Bail Or Not To Bail: Protecting The Presumption Of Innocence In Nevada, 2019 Nevada Law Journal
To Bail Or Not To Bail: Protecting The Presumption Of Innocence In Nevada, Ebeth Palafox, Brendan Mcleod
Nevada Law Journal Forum
This white paper aims to discuss the issues associated with bail reform in Nevada, provide an analysis of bail reform efforts across the country, and purpose possible solutions for obstacles to bail reform in Nevada. The white paper’s proposed recommendations for practical bail reform is a three-phase plan to eliminate the injustices that arise from Nevada’s current cash bail model.
Deliberation And Decision-Making Process In The Inter-American Court Of Human Rights: Do Individual Opinions Matter?, 2019 Northwestern Pritzker School of Law
Deliberation And Decision-Making Process In The Inter-American Court Of Human Rights: Do Individual Opinions Matter?, Ranieri L. Resende
Northwestern Journal of Human Rights
The work is focused on the adjudicatory nature of the Inter-American Court of Human Rights and investigates its model of deliberation, considering three basic schemes: per curiam, seriatim and hybrid. In order to identify an institutional pattern, the importance of individual opinions is analyzed through the quantitative performance of each category of judge (ad hoc and regular), as well as each type of adjudicative activity (judgments and advisory opinions). The quantitative data is also useful to better understand the explicit assimilation of separate opinions to the core reasoning of future cases. As a result, it has been possible to identify ...
Law Library Blog (May 2019): Legal Beagle's Blog Archive, 2019 Roger Williams University
Law Library Blog (May 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 10, 25th Anniversary Issue) (May 2019), 2019 Roger Williams University
Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 10, 25th Anniversary Issue) (May 2019), Roger Williams University School Of Law
No abstract provided.
Ohio's Targeted Community Alternative To Prison Program: How A Good Idea Is Implemented Through Bad Policy, 2019 Cleveland-Marshall College of Law
Ohio's Targeted Community Alternative To Prison Program: How A Good Idea Is Implemented Through Bad Policy, Samantha Sohl
Cleveland State Law Review
Just because a legislature can make a law doesn’t mean that they should. The Ohio General Assembly enacted the Targeted Community Alternatives to Prison (T-CAP) program to decrease the number of convicted defendants sent to state prison and to increase funding for community control efforts. While the law may be upheld under the Ohio Constitution’s Uniformity Clause, the law should still be repealed because legislative control and financial influence have no place in the judicial branch, specifically the criminal sentencing process. However, the law is rooted in good intentions, and many judges have found the additional funding useful ...
Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, 2019 Notre Dame Law School
Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel
This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are ...
Oral Argument Tactics On The Supreme Court Bench: A Comparative Analysis Of Verbal Tools Used By Justices Sotomayor, Kagan, And Gorsuch, Corinne Cichowicz
Politics Honors Papers
Oral argument scholars like Adam Feldman have categorized the Supreme Court justices’ behavior during oral argument using the approach-based method, labeling each as one-sided, even-handed, or restrained. This approach is too narrowly constructed. Scholars sometimes categorize justices in terms of the tools they use, which include questions, hypotheticals, declarations, interruptions, tone of voice, and silence (Feldman 2018a). Neither of these methods alone produce a nuanced analysis of each justice’s actions during an individual case or across a Term. As the Court’s composition and dynamics are continuously changing, scholarship on oral argument needs to adapt to become more effective ...
The Kavanaugh Hearings And The Search For A Just Justice, 2019 American Constitution Society
The Kavanaugh Hearings And The Search For A Just Justice, Caroline Fredrickson
Golden Gate University Law Review
The evaluation of judicial nominees.
Ledezma-Cosino V. Sessions: The Ninth Circuit Maintains Archaic View That Alcoholism Is A Moral Character Flaw, 2019 Golden Gate University School of Law
Ledezma-Cosino V. Sessions: The Ninth Circuit Maintains Archaic View That Alcoholism Is A Moral Character Flaw, Corey Timpson
Golden Gate University Law Review
This Note focuses on one historically uncommon way in which courts decide to deport an undocumented immigrant seeking cancellation of removal. The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) in Ledezma-Cosino v. Sessions found an undocumented immigrant seeking cancellation of removal ineligible because he was considered a “habitual drunkard.” Ultimately, his case was reheard en banc where the Ninth Circuit vacated the original three-judge panel opinion and upheld the Immigration Judge and the Board of Immigration Appeals’ decision finding Ledezma-Cosino ineligible for cancellation of removal because he was a habitual drunkard.
The first part of this ...
Cassirer V. Thyssen-Bornemisza Collection Foundation: The Holocaust Expropriated Art Recovery Act Was Unveiled But Congress Still Has Work To Do, 2019 Golden Gate University School of Law
Cassirer V. Thyssen-Bornemisza Collection Foundation: The Holocaust Expropriated Art Recovery Act Was Unveiled But Congress Still Has Work To Do, Nicholas Joy
Golden Gate University Law Review
Section I of this Note discusses the case’s procedural history. Section II discusses the Cassirer family story and looks at the history of America’s legislative efforts aimed at impacting Holocaust-era art restitution litigation since the end of WWII. Section III discusses the Ninth Circuit’s application of HEAR and compares it to subsequent interpretations of the Act. Lastly, section IV discusses changes that Congress could make to HEAR that would help ensure that the Act has the impact that the legislature intended.
Introduction, 2019 Ninth Circuit Court of Appeals
Introduction, The Hon. Michelle T. Friedland
Golden Gate University Law Review
No abstract provided.