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Full-Text Articles in Law

Antipodal Invective: A Field Gude To Kangaroos In American Courtrooms, Parker B. Potter Jr. Jul 2015

Antipodal Invective: A Field Gude To Kangaroos In American Courtrooms, Parker B. Potter Jr.

Akron Law Review

This article discusses three other groups of opinions that use the phrase “kangaroo court.” The first section describes the various decision-making behaviors that qualify a tribunal to wear the Scarlet K. It does so by discussing opinions in which a judge or a litigant has given a definition of the term “kangaroo court” when that term is used metaphorically, as invective, to disparage the fairness of another tribunal. The second section describes the habitat of adjudicatory kangaroos by examining opinions like Silver v. Castle Memorial Hospital, in which a judge has called another tribunal a kangaroo court. The third section …


Judge Posner's Simple Law, Mitchell N. Berman Apr 2015

Judge Posner's Simple Law, Mitchell N. Berman

Michigan Law Review

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …


Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon Oct 2014

Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon

Marquette Law Review

This Essay highlights the evolving institutional changes in the federal judiciary—a protracted confirmation process, higher caseload demands, and declining real salaries—in concurrence with evidence suggesting greater reliance by judges on their law clerks when writing opinions. These dynamic forces arguably undermine the integrity of the judicial process and counsel for legislative action to address judicial working conditions or for changes by judges in the hiring of law clerks.


Dissent Aversion At The Court Of Justice Of The European Union, Marsha C. Erb Jan 2014

Dissent Aversion At The Court Of Justice Of The European Union, Marsha C. Erb

Duke Law Master of Judicial Studies Theses

The Court of Justice of the European Union has jurisdiction over 28 politically, culturally and linguistically disparate member states in the interpretation and application of EU law. Throughout its 60-year history, the Court has banned publication of the separate opinions of its judges and their voting records favouring instead brief unsigned unanimous decisions achieved by majority vote. The CJEU defends its practice in the interests of protecting judicial independence and its own authority and legitimacy. The Court’s critics call for greater transparency by publishing dissenting opinions along the lines of the United States Supreme Court. The CJEU is one of …


A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner Jan 2014

A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of …


Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick Jan 2014

Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick

Osgoode Hall Law Journal

This article poses the question: Now that women are receiving an increasing share of the seats on the Supreme Court of Canada (the Court), can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? The author looks at the assignment of reasons for judgment on the Court over the last three chief justiceships, with specific reference to the relative rate of assignments to male and female judges. He finds that the male/female gap is more robust than ever, although he also …


Judges Under Fire - Alj Independence At Issue, Debra Cassens Moss Apr 2013

Judges Under Fire - Alj Independence At Issue, Debra Cassens Moss

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


General Semantics, Stare Decisis And Change Through Considerations Of A New Ethics, Irene S. Ross Apr 2013

General Semantics, Stare Decisis And Change Through Considerations Of A New Ethics, Irene S. Ross

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Surviving The Politics Of Judging: National Association Of Adminsitrative Law Judges Luncheon Address, September 13, 1999 , Penny J. White Apr 2013

Surviving The Politics Of Judging: National Association Of Adminsitrative Law Judges Luncheon Address, September 13, 1999 , Penny J. White

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Ncalj Panel Discussion: Alj Decisions - Final Or Fallible?, Jim Flanagan, Jim Rossi, John Hardwicke, Tyrone T. Butler Apr 2013

Ncalj Panel Discussion: Alj Decisions - Final Or Fallible?, Jim Flanagan, Jim Rossi, John Hardwicke, Tyrone T. Butler

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


The Texas State Office Of Administrative Hearings: Establishing Independent Adjudicators In Contested Case Proceedings While Preserving The Power Of Institutional Decision-Making, Ron Beal Apr 2013

The Texas State Office Of Administrative Hearings: Establishing Independent Adjudicators In Contested Case Proceedings While Preserving The Power Of Institutional Decision-Making, Ron Beal

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Policymaking By The Administrative Judiciary , Charles H. Koch Jr. Apr 2013

Policymaking By The Administrative Judiciary , Charles H. Koch Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Accommodating Alj Decision Making Independence With Institutional Interests Of The Administrative Judiciary, Harold J. Krent, Lindsay Duvall Apr 2013

Accommodating Alj Decision Making Independence With Institutional Interests Of The Administrative Judiciary, Harold J. Krent, Lindsay Duvall

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Active Bar Membership October 15, 2007 Federal Administrative Law Judges: A Critique Of The "Active" Bar Membership Regulation , David J. Agatstein Apr 2013

Active Bar Membership October 15, 2007 Federal Administrative Law Judges: A Critique Of The "Active" Bar Membership Regulation , David J. Agatstein

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Precedent: What It Is And What It Isn't; When Do We Kiss It And When Do We Kill It?, Ruggero J. Aldisert Jan 2013

Precedent: What It Is And What It Isn't; When Do We Kiss It And When Do We Kill It?, Ruggero J. Aldisert

Pepperdine Law Review

No abstract provided.


Judicial Attention As A Scarce Resource: A Preliminary Defense Of How Judges Allocate Time Across Cases In The Federal Courts Of Appeals, Marin K. Levy Jan 2013

Judicial Attention As A Scarce Resource: A Preliminary Defense Of How Judges Allocate Time Across Cases In The Federal Courts Of Appeals, Marin K. Levy

Faculty Scholarship

Federal appellate judges no longer have the time to hear argument and draft opinions in all of their cases. The average annual filing per active judgeship now stands at 330 filed cases per year — more than four times what it was sixty years ago. In response, judges have adopted case management strategies that effectively involve spending significantly less time on certain classes of cases than on others. Various scholars have decried this state of affairs, suggesting that the courts have created a “bifurcated” system of justice with “separate and unequal tracks.” These reformers propose altering the relevant constraints of …


In The Absence Of Scrutiny: Narratives Of Probable Cause, Mitu Gulati, Jack Knight, David F. Levi Jan 2013

In The Absence Of Scrutiny: Narratives Of Probable Cause, Mitu Gulati, Jack Knight, David F. Levi

Faculty Scholarship

This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the "good faith" exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not …


How Well Do Measures Of Judicial Ability Translate Into Performance?, Mitu Gulati, Stephen J. Choi, Eric A. Posner Jan 2013

How Well Do Measures Of Judicial Ability Translate Into Performance?, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

Diverse measures are used as proxies for judicial ability, ranging from the college and law school a judge attended to the rate at which her decisions are cited by other judges. Yet there has been little serious examination of which of these ability measures is better or worse at predicting the quality of judicial performance—including the management and disposition of cases. In this article, we attempt to evaluate these measures of ability by examining a rich group of performance indicators. Our innovation is to derive performance measures from judicial decisions other than case outcomes (which are inherently difficult to evaluate): …


Simplifying The Standard Of Review In North Carolina Administrative Appeals, Sarah H. Ludington Jan 2013

Simplifying The Standard Of Review In North Carolina Administrative Appeals, Sarah H. Ludington

Faculty Scholarship

No abstract provided.


The Politics Of Statutory Interpretation, Margaret H. Lemos Jan 2013

The Politics Of Statutory Interpretation, Margaret H. Lemos

Faculty Scholarship

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …


Suboptimal Social Science And Judicial Precedent, Ben Grunwald Jan 2013

Suboptimal Social Science And Judicial Precedent, Ben Grunwald

Faculty Scholarship

No abstract provided.


Altering Attention In Adjudication, Chris Guthrie, Jeffrey J. Rachinski, Andrew J. Wistrich Jan 2013

Altering Attention In Adjudication, Chris Guthrie, Jeffrey J. Rachinski, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when …


The Emotionally Intelligent Judge, Terry A. Maroney Jan 2013

The Emotionally Intelligent Judge, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judges, like all of us, have been acculturated to an ideal of dispassion. But judges experience emotion on a regular basis. Judicial emotion must be managed competently. The psychology of emotion regulation can help judges learn to prepare realistically for, and respond thoughtfully to, the emotions they are bound to feel. This short piece, written for a judicial audience, synthesizes research that can help judges accept, analyze, and shape the emotional aspects of their work.


"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, Peter J. Mccormick Jul 2012

"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, Peter J. Mccormick

Osgoode Hall Law Journal

Appeal court judges do not just vote and run; they vote and then they explain, at length, why theirs is the most reasonable position. Since the core of explanation is persuasion, this means that between the initial conference vote and the final decision, some of the judges sometimes change their minds; and this in turn means that sometimes an initial majority becomes a minority and vice versa, something which often leaves clear footprints in the written record. This paper demonstrates that this happens more often than we might think—some 255 times for the last three Chief Justiceships, or roughly once …


The Rule Of Law For Judges, Thomas M. Reavley Apr 2012

The Rule Of Law For Judges, Thomas M. Reavley

Pepperdine Law Review

No abstract provided.


"Of A Judiciary Nature": Observations On Chief Justice's First Opinions, Diane S. Sykes Mar 2012

"Of A Judiciary Nature": Observations On Chief Justice's First Opinions, Diane S. Sykes

Pepperdine Law Review

No abstract provided.


The Roberts Court & Executive Power, Jeffrey Rosen Mar 2012

The Roberts Court & Executive Power, Jeffrey Rosen

Pepperdine Law Review

No abstract provided.


The Alito/O'Connor Switch, Joan Biskupic Mar 2012

The Alito/O'Connor Switch, Joan Biskupic

Pepperdine Law Review

No abstract provided.


The Inaugural William French Smith Memorial Lecture: A Look At Supreme Court Advocacy With Justice Samuel Alito, Samuel A. Alito Jr, Douglas W. Kmiec, Carter G. Phillips, Kenneth W. Starr Mar 2012

The Inaugural William French Smith Memorial Lecture: A Look At Supreme Court Advocacy With Justice Samuel Alito, Samuel A. Alito Jr, Douglas W. Kmiec, Carter G. Phillips, Kenneth W. Starr

Pepperdine Law Review

No abstract provided.


Law, Higher Law, And Human Making, William S. Brewbaker Iii Feb 2012

Law, Higher Law, And Human Making, William S. Brewbaker Iii

Pepperdine Law Review

This paper is a preliminary investigation of what Christian theology might teach us about the nature of human creative activity and its relationship to judging and lawmaking. Rather than attempt to survey and synthesize multiple theological accounts of human making, it focuses on just one - Dorothy Sayers' The Mind of the Maker. The foundational analogy that drives Sayers' account of human creativity is the relation between God's creative activity and that of human beings made in his image. Sayers argues that human creative activity has a Trinitarian structure, which she identifies as Idea, Energy and Power. These three elements …