Law Commons^™

U.S. Jury Reform: The Active Jury And The Adversarial Ideal, Valerie P. Hans

Cornell Law Faculty Publications

In many countries, lay people participate as decision makers in legal cases. Some countries include their citizens in the justice system as lay judges or jurors, who assess cases independently. The legal systems of other nations combine lay and law-trained judges who decide cases together in mixed tribunals. The International Conference on Lay Participation in the Criminal Trial in the 21st Century provided useful contrasts among different methods of incorporating lay voices into criminal justice systems worldwide. Systems with inquisitorial methods are more likely to employ mixed courts, whereas adversarial systems more often use juries. Research presented at the Conference …

Promoting Judicial Acceptance And Use Of Limited Guardianship, Lawrence A. Frolik

Articles

Guardianship comes within the special province of judges. In the great majority of guardianship hearings, there is no jury. The presiding judge is the sole arbiter of whether the alleged incapacitated person meets the legal standard of mental incapacity and whether that person would benefit from the appointment of a guardian. If a guardian is appointed, the judge determines the type and extent of the powers granted to the guardian. Of course, the judge is not simply free to follow his or her own instincts or desires, for the judge is bound to determine the facts carefully and apply the …

Chief Judge Proctor Hug, Jr. And The Split That Didn't Happen, Arthur D. Hellman

Articles

Judge Procter Hug, Jr. became Chief Judge of the Ninth Circuit on March 1, 1996. Nine months earlier, eight Senators from five western states had introduced Senate Bill 956. The purpose of the bill, as stated in its title, was "to divide the ninth judicial circuit of the United States into two circuits." If the bill had been enacted, it would have been only the third time in the 104-year history of the federal courts of appeals that a circuit was split. And it would have been the first time that Congress had divided a circuit without waiting for a …

Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman

Articles

No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.

I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses …

Community Competence For Matters Of Judicial Cooperation At The Hague Conference On Private International Law: A View From The United States, Ronald A. Brand

Articles

The Amsterdam Treaty's introduction of Article 65 into the European Community Treaty took little time to achieve practical importance. In fact, the questions were practical as early as they were theoretical. A 1992 request by the United States that the Hague Conference on Private International Law negotiate a global convention on jurisdiction and the recognition of civil judgments resulted in a laboratory for the new-found competence of the Community. Thus, negotiations already underway--which included delegations from all 15 EU Member States--were affected significantly by the transfer of competence from those states to the Community institutions for matters under consideration at …

Taking Lessons From The Left?: Judicial Activism On The Right, Stephen F. Smith

Journal Articles

The topic I would like to address in this essay is the subject of conservative judicial activism. Dismayed at the boldness of the Rehnquist Court's conservative majority in areas such as affirmative action and race-based redistricting, federalism, takings law, and my own field of constitutional criminal procedure, critics have accused the Court of being "activist." These attacks have become almost ubiquitous now, to the point that it is increasingly difficult to find any area of the Rehnquist Court's jurisprudence that has not been condemned as activist. Perhaps this is not surprising; the term "activism" packs a powerful rhetorical punch, especially …

The Inside Scoop: What Federal Judges Really Think About The Way Lawyers Write, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

A recent survey indicates that what troubles federal judges most is not what lawyers say but what they fail to say when writing briefs. Although lawyers do a good job articulating legal issues and citing controlling, relevant legal authority, they are not doing enough with the law itself. Only fifty-six percent of the judges surveyed said that lawyers “always” or “usually” make their client’s best arguments. Fifty-eight percent of the judges rated the quality of the legal analysis as just “good,” as opposed to “excellent” or “very good.” The problem seems to be that briefs lack rigorous analysis, and the …

Beyond Interpretation, Pierre Schlag

Publications

No abstract provided.

Dissecting Axes Of Subordination: The Need For A Structural Analysis, Darren Lenard Hutchinson

UF Law Faculty Publications

Proceedings of a criminal trial in Dallas, Texas, demonstrate the vulnerability of LGBT individuals to judicial bias. Although the jury convicted the defendant of murdering two gay males, the judge explained his light sentence: "I put prostitutes and gays at about the same level, and I'd be hard put to give somebody life for killing a prostitute . . . had [the victims] not been out there trying to spread AIDS, they'd still be alive today . . . These two guys that got killed wouldn't have been killed if they hadn't been cruising the streets picking up teen-age boys …

Judicial Activism In The Regulatory Takings Opinions Of Justice Scalia, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

If the question is whether the Court's recent property rights decisions represent unwarranted judicial activism, my answer is an unequivocal "Yes!" Explaining why requires some care. After all the jurisprudential battles of the recent past, it is hard to state what makes a decision "activist," let alone unwarrantedly so.

Are Judges Motivated To Create "Good" Securities Fraud Doctrine?, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

‘How Do Judges Maximize? (The Same Way Everybody Else Does – Boundedly): Rules of Thumb in Securities Fraud Opinions’, by Stephen M. Bainbridge and G. Mitu Gulati, confronts the reader with a theory about judicial behavior in the face of complex, "unexciting" cases such as those involving securities fraud. The story is simple: few judges find any opportunity for personal satisfaction or enhanced reputation here, so they simply try to minimize cognitive effort, off-loading much of the work that has to be done to their clerks. The evidence that Bainbridge and Gulati offer is the creation of some ten or …

Republican Party Of Minnesota V. White: Should Judges Be More Like Politicians?, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Republican Party of Minnesota v. White shows how unrealistic five justices can be about what happens in judicial election campaigns, and also - ironically - about how much judges differ from legislators and others who run for office. This reality was captured concisely by Robert Hirshon, immediate past president of the American Bar Association (ABA) in his statement following the Court's ruling: "This is a bad decision. It will open a Pandora's Box.... " The decision will change judicial election campaigns in such a way that the quality of the pool of candidates for the …

Myth, Reality Past And Present, And Judicial Elections, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Why do we have judicial elections? A democracy without elections for the legislature and executive (or, in parliamentary systems, for the executive as the leadership of the elected legislators), would be simply inconceivable. But no one would deny that eleven of our states, or many other nations, are democracies even though they do not elect judges. It might follow from that irrefutable, fundamental difference between elections for judges and for other offices, that judicial elections should not-or more to the point, need not-be conducted the same as other elections. Before we soar into debate, let us lay a foundation with …

Judicial Campaign Conduct Committees, Roy A. Schotland, Barbara Reed

Georgetown Law Faculty Publications and Other Works

As the other papers presented at this Symposium make abundantly clear, the problems associated with inappropriate statements and conduct during judicial elections are unlikely to abate anytime soon. Bench and bar leaders across the country are being joined by a growing chorus of members of the media and the public in demands that something be done. As an initial step that requires relatively little yet holds great promise, the authors endorse the use of judicial campaign conduct committees as a means of long-term improvement.

Antonin Scalia, Baruch Spinoza, And The Relationship Between Church And State, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

I begin with an outline of Spinoza's philosophy on church and state, followed by a demonstration that Scalia is headed in the same direction. I conclude by considering how Spinoza and Scalia might react to recent litigation in South Dakota involving an excommunication from a close-knit religious community, the Hutterite Church.

Comment On Professor Carrington's Article "The Independence And Democratic Accountability Of The Supreme Court Of Ohio", Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In my view, whether or not Article III is written as members of a new constitutional convention might write it, there is nothing more fundamental to the way our entire judicial system operates (including in many ways, although indirectly, our state courts) than federal judges being as independent as law can make them. Perhaps I suffer from Burkean skepticism about reform of long-standing institutions, or perhaps I am merely a supporter of the status quo. But I believe that, despite obvious drawbacks in giving anyone life tenure in any job, we gain far more than we lose by making federal …

Judicial Elections And Campaign Finance Reform, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In the judicial realm, the issue of campaign finance cuts across all states that use any form of election as part of their selection or retention system, whether the elections are partisan or non-partisan. The raising of money for campaigns is a task that has to be performed in all states that use any form of election. Like many other things that we have discussed today it seems to involve a sort of balancing act. The state certainly has a strong interest in protecting the integrity of its judiciary and encouraging the public perception of the judiciary as an institution …

Public Funds And The Regulation Of Judicial Campaigns, Richard Briffault

Faculty Scholarship

Recent discussions of judicial election campaigns have been marked by two themes: (i) the growing costs of such campaigns, with concerns over the roles of large contributions and independent spending, the burden of fundraising for candidates, and the implications of campaign finance practices for judicial decision-making; and (ii) the changing nature of campaigning, as elections that were once “low-key affairs, conducted with civility and dignity,” have become increasingly politicized, marked by heated charges and sharp criticisms of the records and decisions of sitting judges. The two developments are surely intertwined, with the more bitter and hard-fought campaigns funded by rapidly …

Choosing The Judges Who Choose The President, John C. Nagle

Journal Articles

The stakes for the selection of judges have never been so high. Federal and state court judges have ruled on such divisive issues as education funding, exclusionary zoning, capital punishment, same-sex marriages, school prayer, affirmative action, partial birth abortion, and legislative redistricting.

The selection of those who possess such awesome powers is bound to be contested. But the mode of choosing judges is a secondary question. The debate concerning the selection of judges is fueled by a broader debate about the appropriate role of judges.

The procedures for choosing those judges are caught up in this larger substantive debate, and …

A Goldilocks Account Of Judicial Review?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong …

Is The Rehnquist Court An "Activist" Court? The Commerce Cause Cases, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called "judicial activism"? To answer this question, we must clarify the meaning of the term "judicial activism." With this meaning in hand, the author examines the Court's Commerce Clause cases. The answer he …