Law Commons^™

Judging The Judiciary, Amanda B. Hurst

Georgia State University Law Review

Judicial legitimacy not only depends on judges maintaining the high ethical standards imposed on them but also on the public believing judges will be held accountable when they break the rules. However, judges are often viewed as “getting away with it.” This Article focuses on how to improve this problematic perception of state judicial discipline systems (JDSs). Part of the answer is more exposure, including a social media presence, for judicial discipline commissions (JDCs), the bodies in each state responsible for resolving misconduct complaints and recommending or imposing sanctions, because the public and media have a similar flawed understanding of …

Toward A Better Criminal Legal System: Improving Prisons, Prosecution, And Criminal Defense, David A. Harris, Created And Presented Jointly By Students From State Correctional Institution - Greene, Waynesburg, Pa, And University Of Pittsburgh School Of Law, Chief Editor: David A. Harris

Articles

During the Fall 2023 semester, 15 law (Outside) students from the University of Pittsburgh School of Law and 13 incarcerated (Inside) students from the State Correctional Institution – Greene, in Waynesburg, Pennsylvania, took a full semester class together called Issues in Criminal Justice and Law. The class, occurring each week at the prison, utilized the Inside-Out Prison Exchange pedagogy, and was facilitated by Professor David Harris. Subjects include the purposes of prison, addressing crime, the criminal legal system and race, and issues surrounding victims and survivors of crime. The course culminated in a Group Project; under the heading “improving the …

Major Questions About Presidentialism: Untangling The “Chain Of Dependence” Across Administrative Law, Jed Handelsman Shugerman, Jodi L. Short

Faculty Scholarship

A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Tailored Judicial Selection, Dmitry Bam

University of Arkansas at Little Rock Law Review

No abstract provided.

International Norms In Constitutional Law, Michael Wells

Georgia Journal of International & Comparative Law

No abstract provided.

Judicial Independence And Social Welfare, Michael D. Gilbert

Michigan Law Review

Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve cases impartially and in accordance with law. Yet independence comes with a hazard. Precisely because they are independent, judges can ignore law and pursue private agendas. For two centuries, scholars have debated those ideas and the underlying tradeoff: independence versus accountability. They have achieved little consensus, in part because independence raises difficult antecedent questions. We cannot decide how independent to make a judge until we agree on what a judge is supposed to do. That depends on one’s views about …

Striking A Balance: Administrative Law Judge Independence And Accountability, R. Terrence Harders

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Alj Final Orders On Appeal: Balancing Independence With Accountability, Jim Rossi

Journal of the National Association of Administrative Law Judiciary

This essay addresses how ALJ final order authority in many state systems of administrative governance (among them Florida, Louisiana, Missouri, and South Carolina) poses a tension between independence and accountability. It is argued that political accountability is sacrificed where reviewing courts defer to ALJ final orders on issues of law and policy. Standards of review provide state courts with a way of restoring the balance between independence and accountability, but reviewing courts should heighten the deference they give to the agency's legal and policy positions -- giving little or no deference to the ALJ on these issues -- even where …

Heuristics, Cognitive Biases, And Accountability: Decision-Making In Dependency Court, Matthew I. Fraidin

Journal Articles

On tens of thousands of occasions each year, state court judges wrongly separate children from their families and place them in foster care. And while a child is in foster care, judges are called on to render hundreds of decisions affecting every aspect of the child’s life. This Article uses insights from social psychology research to analyze the environment of dependency court and to recommend changes that will improve decisions. Research indicates that decision makers aware at the time they make a decision that they will be called upon later to explain it may engage in a systematic, deliberate decision-making …

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …

Iowa’S 2010 Judicial Election: Appropriate Accountability Or Rampant Passion?, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Although 89% of state judges (appellate and general-jurisdiction trial judges) face some type of election, judicial elections are rarely thought of even by academics interested in elections. Iowa’s 2010 election, in which three Justices were defeated, is one of the most significant judicial elections ever. The Justices lost their seats because they participated in a unanimous 2009 decision upholding gay marriage. That decision stirred intense opposition among “social conservatives”, in Iowa a substantial proportion of the population and actively led by more than 100 ministers.

That active opposition was one of eight elements that created a perfect storm against the …

(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 …

Beyond Quality: First Principles In Judicial Selection And Their Application To A Commission-Based Selection System, Jeffrey D. Jackson

Fordham Urban Law Journal

This article discusses the principles that the judicial system should advance in the selection of its judges. In addition to judicial quality, there are five other “first principles” that should be advanced in an optimal selection system: independence, accountability, representativeness, legitimacy, and transparency.

A View From The Ground: A Reform Group’S Perspective On The Ongoing Effort To Achieve Merit Selection Of Judges, Shira J. Goodman, Lynn A. Marks

Fordham Urban Law Journal

This article describes the history of judicial selection in the state of Pennsylvania. It describes the judicial selection reform movement and the growth of the organization Pennsylvanians for Modern Courts ("PMC") which devises solutions to meet the various challenges to judicial integrity in Pennsylvania. It focuses on the merit system that PMC has been trying to achieve for Pennsylvania's appellate courts.

Appointing Judges The European Way, Mary L. Volcansek

Fordham Urban Law Journal

This Article looks at methods of judicial selection in Europe as a way to contrast and perhaps better understand and improve the systems of judicial selection used in the United States. The article argues that in Europe, judicial independence is prized above and beyond any other possible positive trait. The democratic legitimacy of European judges derives from the intimate connection between democracy and the rule of law. Legitimacy does not attach, in the public eye, to a single political institution, but rather to the system as a whole.

A Cancer On The Republic: The Assault Upon Impartiality Of State Courts And The Challenge To Judicial Selection, Donald L. Burnett

Fordham Urban Law Journal

This Article examines judicial impartiality in the context of the state courts. Section I endeavors to show how impartial state courts are essential to fulfilling the constitutional guarantees of a republican form of government and of due process and equal protection of the law. Section II describes the current assault upon the impartiality of state courts, and Section III suggests several ways in which this cancer on the republic can be slowed or reversed—by specific actions within, or related to, the judicial selection process.

How The Pickers Pick: Finding A Set Of Best Practices For Judicial Nominating Commissions, Rachel Paine Caufield

Fordham Urban Law Journal

This article discusses the history and development of judicial selection in the states. It examines the 'merit selection' system of judicial appointment and the role of nominating commissions. The article concludes with a section of recommendations for the best practices that should be formally written down and adopted by nominating commissions.

Restrictions On Publication And Citation Of Judicial Opinions: A Reassessment, Robert J. Martineau

University of Michigan Journal of Law Reform

In response to the "crisis of volume," state and federal appellate courts have been restricting the opinions they write to those opinions which will: (1) establish a new. rule of law or expand, alter, or modify an existing rule; (2) involve a legal issue of continuing public interest; (3) criticize existing law; or (4) resolve a conflict of authority. All other opinions are limited to brief statements of the reasons for the decision, go unpublished, and generally carry a prohibition against their being cited as precedent. Recently, critics have alleged a number of faults with this practice, including the supposed …

Watershed Management And Water Quality Protection, Thomas E. Wilson

The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10)

11 pages.

Contains references (page 1).