Law Commons^™

Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr.

Cleveland State Law Review

A 1968 amendment to the Ohio Constitution granted the Supreme Court of Ohio the authority to promulgate “rules governing practice and procedure” for Ohio courts. The amendment also provided that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect” and that no rule may “abridge, enlarge, or modify any substantive right.”

Although the amendment was explicit about automatic repeal of existing laws, it says nothing about whether the General Assembly may legislate on a procedural matter after a court rule takes effect. That silence has caused enduring confusion. …

How Big Money Ruined Public Life In Wisconsin, Lynn Adelman

Cleveland State Law Review

This Article discusses how Wisconsin fell from grace. Once a model good government state that pioneered many democracy-enhancing laws, in a very short time, Wisconsin became a state where special interest money, most of which is undisclosed, dominates politics. This Article identifies several factors as being critical to Wisconsin’s descent. These include the state’s failure to nurture and build on the campaign finance reforms enacted in the 1970s and both the state’s and the United States Supreme Court’s failure to adequately regulate sham issue ads. As evidence of Wisconsin’s diminished status, this Article describes how several of the state’s most …

Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira

Cleveland State Law Review

Multiple mistrials following validly-prosecuted trials are becoming an increasingly harsh reality in today’s criminal justice system. Currently, the Ohio Supreme Court has not provided any guidelines to help its trial judges know when to make the crucial decision to dismiss an indictment with prejudice following a string of properly-declared mistrials, especially due to repeated hung juries. Despite multiple mistrials that continue to result in no conviction, criminal defendants often languish behind bars, suffering detrimental psychological harm and a loss of personal freedom as they remain in “legal limbo” waiting to retry their case. Furthermore, continuously retrying defendants cuts against fundamental …

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.

The Senate Blue-Slip Process As It Bears On Proposals To Split The Ninth Circuit, Wyatt Kozinski

Journal of Legislation

No abstract provided.

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

Journal of Legislation

No abstract provided.

The Seventeenth Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center, Caroline M. Gentile, The Honorable Karen L. Valihura

Fordham Journal of Corporate & Financial Law

No abstract provided.

Do Judges Make Law?, Michael L. Barker

The University of Notre Dame Australia Law Review

No abstract provided.

Diversification Of The Japanese Judiciary, Daniel H. Foote

Washington International Law Journal

Japan has a career judiciary. The Courts Act of 1947 provides that judges may be appointed from among prosecutors, attorneys, and law professors. In practice, however, the vast majority of judges come from a fourth category, “assistant judges,” who are appointed directly upon completion of the legal training program and typically serve through retirement. This continues a career tradition that dates back to the late nineteenth century. For nearly that long, the Japanese bar has been advocating that the career system should be abolished and that a substantial portion of the judiciary, if not all judges, should be drawn from …

Judicial Disqualification—Confusion, Clarification And Continued Considerations: A Closer Look At Arkansas's Judicial Disqualification Rules In Light Of Ferguson V. State, Elizabeth James

University of Arkansas at Little Rock Law Review

No abstract provided.

Judicial Review And Non-Enforcement At The Founding, Matthew Steilen

Matthew Steilen

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …

On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen

Matthew Steilen

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Mutua

Makau Mutua

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.

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

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 …

Introduction: The Effects Of Selection Method On Public Officials, Clayton J. Masterman

Journal Articles

No abstract provided.

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

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.

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

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

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

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 …

Dedication To Dean Edward Settle Godfrey, Iii, Christine I. Hepler

Maine Law Review

It is impossible to fully describe the impact that Dean Godfrey had (and continues to have) on the legal community in Maine, on the University of Maine School of Law, and on the Maine Law Review. This Article provides a sampling of the lives he touched and the contributions he made to the law through his writings. On February 5, 2005, the Maine legal community celebrated the life and work of the Honorable Edward S. Godfrey, III. In attendance were his family members; past and present faculty, staff, and students of the University of Maine School of Law, the law …

Judging The Judiciary By The Numbers: Empirical Research On Judges, Jeffrey J. Rachlinski, Andrew J. Wistrich

Jeffrey J. Rachlinski

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that …

President Nixon's Prescience: The Honorable Kevin Thomas Duffy, Timothy John Casey

The Catholic Lawyer

No abstract provided.

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.

Objective And Subjective Tests In The Law, R. George Wright

The University of New Hampshire Law Review

Across many subject areas, the law commonly attempts to distinguish between objective and subjective tests, and to assess the merits of objective as opposed to subjective legal tests. This Article argues that all such efforts are fundamentally incoherent and ultimately futile in practice. As demonstrated below, what the law takes to be objective in the relevant sense is essentially constituted by what the law takes to be subjective, and vice versa. Judicial preoccupation with objective and subjective tests thus does no more than distract from more meaningful concerns. Judicial attention should be directed away from this hopeless distinction, and instead …

United States V. Pho: Defining The Limits Of Discretionary Sentencing, John G. Wheatley

Maine Law Review

In the consolidated case of United States v. Pho, the government appealed two district court rulings that imposed criminal sentences outside of the range provided in the Federal Sentencing Guidelines Manual (Guidelines). At separate trials, both defendants pied guilty to the crime of possession with intent to distribute five grams or more of cocaine base (commonly known as crack). Rejecting the Guidelines' disparate treatment of crack and powder cocaine, the district court imposed sentences that were below the Guidelines' range, but above the statutory mandatory minimum. The Court of Appeals for the First Circuit vacated both sentences and remanded the …

Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg

University of Michigan Journal of Law Reform

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve …

Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati

Vanderbilt Law Review

Given that there is significant variation across the states in terms of whether death examination offices are run by trained professionals or local politicians, we should, in theory, be able to empirically test the question of whether professionals or politicians do a better job of adjudicating death. It turns out that, although there are strong opinions about what the answer surely is, there has been little in the way of serious empirical work addressing this question. Our Article takes a first cut at looking at how one might do that analysis.