Law Commons^™

Politics, Identity, And Pleading Decisions On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court’s decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly …

Judges Behaving Badly . . . Then Slinking Away, Maureen Carroll

Reviews

A federal judge is accused of misconduct and an investigation begins. Before the investigation has concluded, though, the judge leaves her post. What happens next? Does it create an accountability gap, and if so, how much should that concern us? These are the questions that Veronica Root Martinez takes up in Avoiding Judicial Discipline.

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

Coordinating Injunctions, Bert I. Huang

Faculty Scholarship

Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.

This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then …

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with …

Show Me The Money: An Empirical Analysis Of Interest Group Opposition To Federal Courts Of Appeals Nominees, Donald E. Campbell, Marcus Hendershot

Journal Articles

Contemporary views of the federal judicial appointment process are grounded in themes of obstruction and gridlock. Within this environment, interest groups find fertile ground to target, and sometimes successfully oppose, judicial nominees that once automatically moved through the appointment process and ended in confirmation. While interest group involvement and influence is an accepted fact, much less is known about the efficacy of these groups in carrying out their objective of correctly identifying ideological outlier nominees. This article asks the question: Do interest groups correctly identify and target nominees who are ideological outliers? The article implements a research design that evaluates …

The Right To An Independent Judiciary And The Avoidance Of Constitutional Conflict: The Burger Court’S Flawed Reasoning In Chandler V. Judicial Council Of The Tenth Circuit And Its Unfortunate Legacy, Joshua E. Kastenberg

St. Mary's Journal on Legal Malpractice & Ethics

In 1970, the United States Supreme Court issued Chandler v. Judicial Council of the Tenth Circuit in which five Justices determined that the federal courts of appeals possessed an administrative authority to manage the district court judges within an appellate court’s respective circuit. The decision enabled the Tenth Circuit to decide the fitness of a judge to preside over cases without a formal motion from a litigant. Although Congress had enabled the courts of appeals to oversee basic judicial functions (such as temporarily assigning district court judges to overworked districts), Congress did not intend to grant the power to remove …

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

Publications

No abstract provided.

Rethinking Critical Mass In The Federal Appellate Courts., Laura Moyer

Laura Moyer

This article draws from critical mass studies of gender in other political institutions to inform an application to the US Courts of Appeals. The results demonstrate the utility of considering court-level aspects of diversity. As mixed-sex panels become more common within a circuit, both male and female judges increasingly support plaintiffs in civil rights claims, though the magnitude of the effect is larger for women. The presence of a female chief judge is also positively associated with pro-plaintiff decisions by men and women in sex discrimination cases.

Legislative Process And Intent In Justice Scalia's Interpretive Method, David Schultz

Akron Law Review

This article explores Justice Scalia's views on the legislative process and his interpretive methodology which questions using legislative intent when interpreting statutes. Unlike other recent scholarship which focuses on Scalia's interpretive method, this article is somewhat more expansive. It will examine his views towards the legislative process and decision-making, including his approach and methodology used in interpreting legislative pronouncements. To do this, the article will first provide an assessment of recent legal scholarship describing Scalia's interpretive jurisprudence. The goal here is to establish a description of the legal community's perspective regarding Scalia's views towards interpreting statutes. The second section will …

Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.

Scholarly Works

In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly …

Gender And Difference Among Brazilian Lawyers And Judges: Public And Private Practice In The Global Periphery, Maria Da Gloria Bonelli

Indiana Journal of Global Legal Studies

This article examines the ways in which Brazilian lawyers and judges experience difference. It focuses on how gender and diversity intersect in identity formation among women and men in public and private practice in the state of Sdo Paulo, Brazil. In attempting not to attach one fixed meaning to the concept of difference, the research works with Avtar Brah's typology, which aids in detecting how difference is perceived and experienced by the interviewees. The results provide a look at the specificities of professional practice in the global periphery, comparing the gender composition of law firms and gender stratification within legal …

Rethinking Critical Mass In The Federal Appellate Courts., Laura Moyer

Faculty Scholarship

This article draws from critical mass studies of gender in other political institutions to inform an application to the US Courts of Appeals. The results demonstrate the utility of considering court-level aspects of diversity. As mixed-sex panels become more common within a circuit, both male and female judges increasingly support plaintiffs in civil rights claims, though the magnitude of the effect is larger for women. The presence of a female chief judge is also positively associated with pro-plaintiff decisions by men and women in sex discrimination cases.

Book Review. Epstein, L., Et. Al., The Behavior Of Federal Judges: A Theoretical And Empirical Study Of Rational Choice, Ashley A. Ahlbrand

Articles by Maurer Faculty

No abstract provided.

Leaving The Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, And Their Consequences, Stephen B. Burbank, S. Jay Plager, Gregory Ablavsky

All Faculty Scholarship

This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy enabled the authors to describe more precisely than previous scholarship such matters of interest as the role that judges in senior status play in the contemporary federal judiciary, the rate at which federal judges are retiring from the bench (rather than assuming, or after assuming, senior status), and the reasons why some federal judges remain in regular active service instead of …

To Advice And Consentdelay: The Role Of Interest Groups In The Confirmation Of Judges To The Federal Courts Of Appeal, Donald E. Campbell

Journal Articles

Political and partisan battles over nominees to the federal courts of appeal have reached unprecedented levels. This article considers the reasons for this change in the process. Using evidence from law and political science, this article proposes that current confirmation struggles are greatly influenced by increased involvement of interest groups in the process. The article tests the role of interest groups through an in-depth examination of George W Bush's nomination of Leslie H. Southwick to the Fifth Circuit Court of Appeals. Utilizing the Southwick case study, the article provides evidence of how interest groups impact the confirmation process by designating …

A Review Of Richard A. Posner, How Judges Think (2008), Jeffrey S. Sutton

Michigan Law Review

I was eager to enter the judiciary. I liked the title: federal judge. I liked the job security: life tenure. And I could tolerate the pay: the same as Richard Posner's. That, indeed, may have been the most flattering part of the opportunity-that I could hold the same title and have the same pay grade as one of America's most stunning legal minds. Don't think I didn't mention it when I had the chance. There is so much to admire about Judge Posner-his lively pen, his curiosity, his energy, his apparent understanding of: everything. He has written 53 books, more …

Conflict Of Interest And Disqualification In The Federal Courts: Suggestions For Reform, Arthur D. Hellman

Testimony

Although federal judges do not run for election, over the last three decades the process of nomination and confirmation has become politicized to a disturbing degree. There is a real danger that the judges will come to be perceived not as dispassionate servants of the law but as political actors who pursue political or ideological agendas. One consequence of these developments is likely to be increased scrutiny of judges’ responses to motions to recuse. Here as in other aspects of the operations of the judiciary, “just trust us” is no longer sufficient.

Two provisions of Title 28 of the United …

Only Skin Deep?: The Cost Of Partisan Politics On Minority Diversity Of The Federal Bench, Sylvia R. Lazos Vargas

Indiana Law Journal

Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses. Indiana University School of Law-Bloomington, March 2007.

Indian Nations And The Federal Government: What Will Justice Require In The Future? Claims Against The Sovereign 20th Jusicial Conference Of The United States Court Of Federal Claims, Charles Wilkinson

Publications

No abstract provided.

Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Chief judges wield power. Among other things, they control judicial assignments, circulate petitions to their colleagues, and manage internal requests and disputes. When exercising this power, do chiefs seek to serve as impartial court administrators or do they attempt to manufacture case outcomes that reflect their political beliefs? Because chiefs exercise their power almost entirely outside public view, no one knows. No one sees the chief judge change the composition of a panel before it is announced or delay consideration of a petition for en banc review or favor the requests of some colleagues while ignoring those of others. Chiefs …

In Restraint Of Trade: The Judicial Law Clerk Hiring Plan, Mark W. Pletcher, Ludovic C. Ghesquiere

University of Colorado Law Review

In an effort to bring order to what has historically been a chaotic process, federal judges and law schools implemented the Judicial Law Clerk Hiring Plan in 2002, prohibiting all students except those in their third year of law school from applying for federal clerkships. However, there is a serious problem with the Law Clerk Hiring Plan: it is an unreasonable restraint of trade. In this article, we explore the history of the Law Clerk Hiring Plan and analyze whether it would survive traditional antitrust scrutiny. We conclude that the Plan is an unreasonable restraint of trade. Further, based upon …

The Three Independences, H. Jefferson Powell

University of Richmond Law Review

No abstract provided.

Second Annual Henry Lecture: Judicial Discretion In Statutory Interpretation, Frank H. Easterbrook

Oklahoma Law Review

No abstract provided.

One Man's Token Is Another Woman's Breakthrough - The Appointment Of The First Women Federal Judges, Mary L. Clark

Villanova Law Review

No abstract provided.

The Independence And Responsibility Of The Federal Judiciary, Thomas I. Vanaskie

Villanova Law Review

No abstract provided.

Justice Bushrod Washington And The Age Of Discovery In American Law, David A. Faber

West Virginia Law Review

No abstract provided.

Is There A Threat To Judicial Independence In The United States Today? Roundtable Discussion, Roundtable Discussion

Fordham Urban Law Journal

This roundtable discussion poses the question of whether there is a threat to judicial independence in the United States today and, if so, what it is, to a panel of five judges composed of Honorable William H. Walls, Honorable Edward R. Becker, Honorable Morton I. Greenberg, Honorable Jan E. DuBois, and Honorable Stanley Sporkin. Some discuss what they consider the great stall by a partisan majority Senate to confirm judicial nominations, while others argue they have encountered no threat to their judicial independence, which allows for unpopular decisions to be made. Another concern discussed is that for state judges that …

Catholic Judges In Capital Cases, Amy Coney Barrett, John H. Garvey

Journal Articles

The Catholic Church's opposition to the death penalty places Catholic judges in a moral and legal bind. While these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, they are also obliged to adhere to their church's teaching on moral matters. Although the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job, Catholic judges will want to sit whenever possible without acting immorally. However, litigants and the general public are entitled to impartial justice, which may be something a …

Disagreement And Interpretation, Robert F. Nagel

Publications

No abstract provided.