Law Commons^™

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …

A Comment On The Relationship Between Judicial Salary And Judicial Quality, Stephen G. Marks

Faculty Scholarship

Professor Scott Baker was kind enough to present his empirical research on the relationship between judicial salary and judicial quality to the Law and Economics Workshop run by Professor Keith Hylton and me last fall and I am honored to be able to comment on it today. It is part of a growing body of literature in law that tries to shed light on important issues through statistical analysis. Baker's paper, even before its publication, generated a significant amount of buzz.

Gender, Race, And Intersectionality On The Federal Appellate Bench., Todd Collins, Laura Moyer

Faculty Scholarship

While theoretical justifications predict that a judge’s gender and race may influence judicial decisions, empirical support for these arguments has been mixed. However, recent increases in judicial diversity necessitate a reexamination of these earlier studies. Rather than examining individual judges on a single characteristic, such as gender or race alone, this research note argues that the intersection of individual characteristics may provide an alternative approach for evaluating the effects of diversity on the federal appellate bench. The results of cohort models examining the joint effects of race and gender suggest that minority female judges are more likely to support criminal …

Advocacy Through Briefs In The U.S. Court Of Appeals., Susan B. Haire, Laura P. Moyer

Faculty Scholarship

The focus of this paper is to evaluate the role of advocates in the U.S. Court of Appeals for the Seventh Circuit by examining the characterization of issues offered in appellate briefs against the issues addressed in the court's decisions. Specifically, in an environment in which attorneys are expected to frame the issues on appeal and judges are expected to respond to those issues, what accounts for judges addressing some issues while suppressing others? By explicitly focusing on how the substantive content of an opinion is shaped, we depart from other, earlier scholarship on the advantages of "repeat player" litigants …

Trading Votes For Reasoning: Covering In Judicial Opinions, Mitu Gulati, Stephen J. Choi

Faculty Scholarship

No abstract provided.

Bias In Judicial Citations: A Window Into The Behavior Of Judges?, Mitu Gulati, Stephen J. Choi

Faculty Scholarship

This article tests for the presence of bias in judicial citations within federal circuit court opinions. Our findings suggest bias along three dimensions. First, judges base outside-circuit citation decisions in part on the political party of the cited judge. Judges tend to cite judges of the opposite political party less often than would be expected considering the fraction of the total pool of opinions attributable to judges of the opposite political party. Second, judges are more likely to engage in biased citation practices in certain high-stakes situations. These high-stakes situations include opinions dealing with certain subject matters (such as individual …

Which States Have The Best (And Worst) High Courts?, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with …

Judging Measures, Mitu Gulati, David F. Levi

Faculty Scholarship

The question of how to optimally design judicial institutions is one of central importance to the scholarship focused on courts. Basic questions such as whether there should be mandatory retirement for judges, whether judges should be expected to write their own opinions and whether greater racial or gender diversity on the courts improves decision making are optimal design questions. Given the vast variation in the types of judicial system designs used around the world (and even within the United States), it should be possible to conduct a comparative analysis of the relative efficacy of the different designs. These comparisons cannot …

Reflections On Arizona’S Judicial Selection Process, Ronnell Andersen Jones, Sandra Day O'Connor

Faculty Scholarship

No abstract provided.

Romancing The Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts, created at the end of the 20th century, make court-based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court-based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem-solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through …

The Irony Of Judicial Elections, David E. Pozen

Faculty Scholarship

Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This Article takes the new era as an opportunity to advance our understanding of …