Law Commons^™

Can There Be Too Much Specialization? Specialization In Specialized Courts, Melissa F. Wasserman, Jonathan D. Slack

Northwestern University Law Review

While modern society has embraced specialization, the federal judiciary continues to prize the generalist jurist. This disconnect is at the core of the growing debate on the optimal level of specialization in the judiciary. To date, this discussion has largely revolved around the creation of specialized courts. Opinion specialization, however, provides an alternative, underappreciated method to infuse specialization into the judiciary. In contrast to specialized courts, opinion specialization is understudied and undertheorized.

This Article makes two contributions to the literature. First, this Article theorizes whether opinion specialization is a desirable practice. It argues that the practice’s costs and benefits are …

Law School News: Meet The Rbg Essay Contest Winners! 03/03/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Essay offers an unconventional approach to deterring prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is …

One Of The Good Guys: The Making Of A Justice–Reflections On My First 94 Years, Jamal Greene

The Journal of Appellate Practice and Process

No abstract provided.

A Fireside Chat With Supreme Court Justices Mcmillian And Warren, Carla Wong Mcmillian, Sarah Hawkins Warren

Edith House Lectures

The Women's Law Student Association is hosting the 38th Annual Edith House Lecture featuring Georgia Supreme Court Justices Carla Wong McMillian and Sarah Hawkins Warren. Inaugurated in 1983, the Edith House Lecture Series honors one of the first female graduates of the School of Law, Edith Elizabeth House. House was co-valedictorian of the law class of 1925 and enjoyed a distinguished career in public service.

In a moderated “fireside chat” format, Justices McMillian and Warren spoke about their backgrounds, experiences as women in the legal profession, and paths to Georgia’s highest court. Students and faculty had the opportunity to ask …

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Washington and Lee Law Review Online

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …

Why Judicial Independence Fails, Aziz Z. Huq

Northwestern University Law Review

Judicial independence seems under siege. President Trump condemns federal courts for their political bias; his erstwhile presidential opponents mull various court-packing plans; and courts, in turn, are lambasted for abandoning a long-held constitutional convention against institutional manipulation. At the same time, across varied lines of jurisprudence, the Roberts Court evinces a deep worry about judicial independence. This preoccupation with threats to judicial independence infuses recent opinions on administrative deference, bankruptcy, patent adjudication, and jurisdiction-stripping. Yet the Court has not offered a single, overarching definition of what it means by the term “judicial independence.” Nor has it explained how its disjointed …

The Promise Of Senior Judges, Marin K. Levy

Northwestern University Law Review

Judges, lawmakers, and scholars have long debated whether the federal courts of appeals are understaffed and, if so, how Congress should go about redressing that fact. Even though there is currently a strong argument that some new judgeships should be created, such a path presents logistical complications. If a significant number of seats are added to the appellate bench, circuits may eventually become too large to function well. And if a significant number of circuits are ultimately split, the total number of federal appellate courts may become too large for the judiciary as a whole to function well. Furthermore, there …

Thinking Like A Lawyer About Legislation: Implementing Legislative Decision Theory Through Improved Citation, Hugh L. Brady

Journal of Legislation

The Texas Supreme Court in the late 1990s, in two significant cases, arguably interpreted statutes to achieve a result directly opposite to the Texas Legislature’s decision to adopt a specific text. Why do lawyers and judges struggle when reading and applying legislation, especially when using enactment history? Under Professor Victoria Nourse’s legislative decision theory, the struggle is attributable to the fact that lawyers do not consider the legislature’s institutional rules and procedures to find the proper text to interpret a statute in light of the available legislative evidence. Wider implementation of her theory is hampered by current legal citation practices …

Judicial Temperament Explained, Terry Maroney

Vanderbilt Law School Faculty Publications

Why do we care about judicial temperament? The basic logic is that temperament is an underlying factor that produces behaviors, some desired and some not. The behaviors most often cited as evidence of a good temperament — displays of courtesy, patience, level-headedness, and caring — are desirable because they advance procedural justice. They make litigants, attorneys, and the public feel heard and understood, foster respect for the courts, and — when displayed to fellow judges — advance collegiality. In contrast, the behaviors most often cited as evidence of a poor temperament — outsized or misplaced anger displays, discourtesy, impatience, and …

The Promise Of Senior Judges, Marin K. Levy

Faculty Scholarship

Judges, lawmakers, and scholars have long debated whether the federal courts of appeals are understaffed and, if so, how Congress should go about redressing that fact. Even though there is currently a strong argument that some new judgeships should be created, such a path presents logistical complications. If a significant number of seats are added to the appellate bench, circuits may eventually become too large to function well. And if a significant number of circuits are ultimately split, the total number of federal appellate courts may become too large for the judiciary as a whole to function well. Furthermore, there …

The Politics Of Regulating And Disciplining Judges In Nigeria, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The disciplining of judges is a sensitive and complex challenge. In Nigeria, the complexity is heightened because the process is complicated by socio-political factors and public views about the motivations for disciplining some judges, including claims of political interference by the ruling government. This Chapter argues that both judicial discipline and the work of the National Judicial Council (NJC) – the body responsible for judicial regulation in Nigeria – are caught up within Nigeria’s peculiar socio-politics, a reality that a strictly legal analysis will miss. The Chapter analyzes contemporary challenges and controversies associated with the complaints and discipline procedure in …

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

Scholarly Works

This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was …

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

In Section I, through a …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

The Surprising Views Of Montesquieu And Tocqueville About Juries: Juries Empower Judges, Renée Lettow Lerner

Louisiana Law Review

Both Montesquieu and Tocqueville thought that an independent judiciary was key to maintaining a moderate government of ordered liberty. But judicial power should not be exercised too openly, or the people would view judges as tyrannical. In Montesquieu's and Tocqueville's view, the jury was an excellent mask for the power of judges. Both Montesquieu and Tocqueville thought that popular juries had many weaknesses in deciding cases. But, as Tocqueville made clear, the firm guidance of the judge in instructions on law and comments on evidence could prevent juries from going astray and make the institution a "free school" for democracy. …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

The Ambiguity And Unfairness Of Dismissing Bad Writing, Benjamin D. Raker

Cleveland State Law Review

Courts routinely choose to explicitly dismiss arguments and issues raised by parties, regardless of their merit, based on unexplained determinations that the briefing was bad. This practice, which I call abandonment by poor presentation, is sometimes justified by practicality, by pointing to federal and local rules, by waiver and forfeiture doctrines, and by the norm of party presentation. None of these justifications hold water. I contend that the real reason judges find abandonment by poor presentation is agenda control: judges rely on the practice as a means of retaining control over how they decide cases. This unexplained, poorly justified, and …

Shinall, David L. (Sc 3572), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid only for Manuscripts Small Collection 3572. Taped interviews by David Shinall, a reporter for WKU’s College Heights Herald, with justices of the Kentucky Supreme Court, made prior to a session of the court held on WKU’s campus on 18 April 2002.

Avoiding Judicial Discipline, Veronica Root Martinez

Northwestern University Law Review

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and the rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into …

On Sexual Harassment In The Judiciary, Leah M. Litman, Deeva Shah

Northwestern University Law Review

This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.

Mirror, Mirror, On The Wall—Biased Impartiality, Appearances, And The Need For Recusal Reform, Zygmont A. Pines

Dickinson Law Review (2017-Present)

The article focuses on a troubling aspect of contemporary judicial morality.

Impartiality—and the appearance of impartiality—are the foundation of judicial decision-making, judicial morality, and the public’s trust in the rule of law. Recusal, in which a jurist voluntarily removes himself or herself from participating in a case, is a process that attempts to preserve and promote the substance and the appearance of judicial impartiality. Nevertheless, the traditional common law recusal process, prevalent in many of our state court systems, manifestly subverts basic legal and ethical norms.

Today’s recusal practice—whether rooted in unintentional hypocrisy, wishful thinking, or a pathological cognitive dissonance— …

Yearning For An Independent Federal Judiciary, A. Benjamin Spencer

Popular Media

No abstract provided.

Should Judges Have A Duty Of Tech Competence?, John G. Browning

St. Mary's Journal on Legal Malpractice & Ethics

In an era in which lawyers are increasingly held to a higher standard of “tech competence” in their representation of clients, shouldn’t we similarly require judges to be conversant in relevant technology? Using real world examples of judicial missteps with or refusal to use technology, and drawn from actual cases and judicial disciplinary proceedings, this Article argues that in today’s Digital Age, judicial technological competence is necessary. At a time when courts themselves have proven vulnerable to cyberattacks, and when courts routinely tackle technology related issues like data privacy and the admissibility of digital evidence, Luddite judges are relics that …

What Probate Courts Cite: Lessons From The New York County Surrogate’S Court 2017-2018, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

By knowing what a judge cites, one may better understand what the judge believes is important, how the judge understands her work will be used, and how the judge conceives of the judicial role. Empirical scholars have devoted serious attention to the citation practices and patterns of the Supreme Court of the United States, the United States Courts of Appeals, and multiple state supreme courts. Remarkably little is known about what probate courts cite. This Article makes three principal claims — one empirical, one interpretative, and one normative. This Article demonstrates through data, derived from a study of all decrees …

Rewriting Judicial Recusal Rules With Big Data, Raymond J. Mckoski

Utah Law Review

Big data affects the personal and professional life of every judge. A judge’s travel time to work, creditworthiness, and chances of an IRS audit all depend on predictive algorithms interpreting big data. A client’s choice of counsel, the precise wording of a litigant’s motion, and the composition of the jury may be dictated by analytics. Touted as a means of bringing objectivity to judicial decision-making, judges have employed big data to determine sentences and to set the amount of restitution in class action cases. Unfortunately, the legal profession and big data proponents have ignored one perplexing problem begging for a …

Gender And Judicial Decision-Making, Alexandra Just

Undergraduate Theses

This study employs a unique two-tiered approach, involving both quantitative and qualitative methodology to analyze the influences – specifically, a judge’s gender – on the judicial decision-making process. First, a quantitative bivariate regression analysis was conducted to determine whether a Federal District Court judge’s gender had a statistically significant influence on the ideological direction of case outcomes (which is either liberal, meaning the decision was in favor of the petitioner, or conservative, meaning the decision was against the petitioner). Data was analyzed using the statistical program SPSS and was pulled from the 2016 Carp-Manning database, which contains over 110,000 federal …