Law Commons^™

Politics In The Non-Political Branch, Justin L. Swanson

College of Journalism and Mass Communications: Professional Projects

Across the country there exists a patchwork of legal systems by which judges are appointed retained. In some states, like Illinois, it is a fully political process where judges actively campaign for election to the bench. But a majority of states, including Nebraska, have adopted the Merit Selection System, which attempts to remove politics from these processes. Nevertheless, politics can enter into the retention votes. And when they do, it can be extremely difficult for judges to overcome.

A Public Calling: Lessons From The Lives Of Judges Of Color In Pennsylvania, Phoebe A. Haddon

Phoebe A. Haddon

This paper discusses how Judge Clifford Scott Green, Judge William Marutani, and Judge Juanita Kidd Stout spent their lives as leaders in the law to illustrate the ideal of a "public calling."

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

Daniel Kanstroom

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Diane Hoffmann

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Dora And William Donner Were Busy People, Richard H. Maloy

Richard Maloy

No abstract provided.

Civil Protective Orders In Integrated Domestic Violence Court: An Empirical Study, Erika Rickard

Erika Rickard

New York's Integrated Domestic Violence (IDV) Court was created to streamline the judicial process and promote efficiency and victim safety in cases of domestic violence. One would expect this collaboration and concerted effort on improving the justice system for victims of domestic violence would yield faster results than under the traditional system. The data presented here indicate just the opposite: IDV Courts take longer to address motions for civil protective orders, and are not significantly more likely to grant such orders than traditional matrimonial courts. Delays in the civil protective order process suggest that the problem-solving court may not be …

The Impeachment Of The Judges Of The Nova Scotia Supreme Court, 1787-1793: Colonial Judges, Loyalist Lawyers, And The Colonial Assembly, Jim Phillips

Dalhousie Law Journal

In 1790 the Nova Scotia House of Assembly passed seven "articles of impeachment" against two ofthe colony's Supreme Courtjudges, the firstattempt bya British North American assembly to remove superior courtjudges. Although the impeachment failed when the British government rejected the charges, it is noteworthy nonetheless. The product of a dispute between newly arrived loyalist lawyers and a local elite of "old inhabitants, " it was at one and the same time a political struggle between the Assembly and the executive branch, and one that involved concerns about judicial competence. The impeachment crisis also demonstrates the close links between the judiciary …

Revising Canada's Ethical Rules For Judges Returning To Practice, Stephen Ga Pitel, Will Bortolin

Dalhousie Law Journal

It has recently become more common for retired Canadian judges to return to the practice of law This development raises an array of ethical considerations and potential threats to the integrity of the administration of justice. Although most codes of legal ethics contemplate the possibility of former judges returning to practice, the rules on this particular topic are dated, under-analyzed, and generally inadequate. This article reviews the Canadian ethical rules that specifically relate to former judges and identifies their shortcomings. In doing so, the authors consider, for comparative purposes, Canadian ethical rules directed at former public officers who return to …

The Freewheelin' Judiciary: A Bob Dylan Anthology, Alex B. Long

Scholarly Works

This paper, presented as part of a symposium on Bob Dylan and the Law at the Fordham University School of Law, explores the ways in which judges have used the lyrics of Bob Dylan in their opinions.

Share Transfer Restrictions In Close Corporations As Mechanisms For Intelligible Corporate Outcomes, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Checking The Staats: How Long Is Too Long To Give Adequate Public Notice In Broadening Reissue Patent Applications?, David M. Longo

David M. Longo

No abstract provided.

Judges, Lawyers, And A Predictive Theory Of Legal Complexity, Benjamin H. Barton

College of Law Faculty Scholarship

This Article uses public choice theory and the new institutionalism to discuss the incentives, proclivities, and shared backgrounds of lawyers and judges. In America every law-making judge has a single unifying characteristic; each is a former lawyer. This shared background has powerful and unexplored effects on the shape and structure of American law. This Article argues that the common interests, thought-processes, training, and incentives of Judges and lawyers lead inexorably to greater complexity in judge-made law. These same factors lead to the following prediction: judge-created law will be most complex in areas where a) elite lawyers regularly practice; b) judges …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Information Sharing In A Common Law Of Sentencing: A Skeptic's Guide, Ryan W. Scott

Ryan W. Scott

For decades, prominent scholars and judges have called for the development of a “common law of sentencing” in the United States. One strand of scholarship stresses the information sharing function of the common law: sentencing judges need access to a body of written opinions that reveals how other courts have handled similar cases. The idea is that, fueled by better information, case-by-case common law reasoning will promote inter-judge consistency and rationality in sentencing law. This Article takes a skeptical view, identifying three sets of challenges for an information-sharing approach. First, there are daunting information-collection challenges. A healthy common law depends …

Originalism And The Aristotelian Tradition: Virtue’S Home In Originalism, Lee Strang

Lee J Strang

A concept fundamental to philosophy—virtue—is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it takes on board virtue ethics’ insights.

Originalism must articulate virtue’s role in …

Does Three Do The Trick In The Ninth? The Liberal Ninth Circuit – Myth Or Fact: How The Three Judge Panel, And A System Of Published And Unpublished Opinions Interact With Political Appointments In The Ninth Circuit, Rachel N. Agress

Rachel N. Agress

This article examines the persistent view that the Ninth Circuit is “overly liberal,” and attempts to evaluate this outlook in light of data collected regarding two variables. The first variable is the composition of individual political orientations of judges on the Ninth Circuit as compared to the political composition of other circuit courts. To achieve this comparison, this paper looks at political appointments and classified judges as “liberal” or “conservative,” based on political appointment by a Democratic or Republican president. Further, this article delineates the current percentage of “liberal” versus “conservative” judges in each circuit, comparing the average circuit court …

A Farewell To Harms: Presuming Irreparable Injury In Constitutional Litigation, Anthony Disarro

Anthony DiSarro

Although it is an essential element to obtaining injunctive relief, most federal circuit courts have held that irreparable injury can be presumed in constitutional cases. The Supreme Court has not addressed a presumption of irreparable harm in the constitutional context but it has disapproved of the practice for federal statutory claims. This article argues that the presumption is improper. The history of the injunctive remedy in this country suggests that irreparable injury is an essential element of proof that should be applied in all cases. Indeed, although constitutional rights are of paramount importance in our legal system, the fact that …

Getting Away With Murder (Most Of The Time): A Sesquicentennial Analysis Of Civil War Era Homicide Cases In Boone County, Missouri, Frank O. Bowman Iii

Frank O. Bowman III

In the quarter century centered on the Civil War, 1850-1875, fifty-three homicide cases came before the courts of Boone County, Missouri, of which Columbia, home of the University of Missouri, is the county seat. To remarkable degree, the story of these killings, told in this article, is a chronicle of the place and period.

The article’s method might be described as “murder as social history.” Its narrative thread is an effort to explain the remarkable fact that only twelve of the fifty-three defendants charged with murder were ever convicted of any form of criminal homicide. The explanation requires an introduction …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Cognitive Illiberalism And Debiasing Strategies, Paul Secunda

Paul M. Secunda

Legal realist scholars of a generation ago posited that judicial perception of facts reflect previously-held values and assumptions rather than record evidence. Yet crucially those scholars did not describe the psychological mechanism by which judges’ values come to shape facts. Understanding the psychological mechanism, culturally-motivated cognition, is a necessary first step to counteract the impact of cognitive illiberalism. Cognitive illiberalism results from the manner in which legal decisionmakers explain their decisions, and how those explanations are processed by “losers” in the politico-legal wars of our society. The phenomenon of cognitive illiberalism delegitimizes legal decisions and causes societal discontent with the …

Jury Deliberations – How Do Reasoning Skills Interplay With Decision-Making?, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

We may well wonder how the Casey Anthony reached its verdict in spite of what many of us thought was a raft of compelling evidence. In order to understand some of the nuances at play, it is important to understand some of the issues that confront a jury and how the criminal justice system ensures or attempts to ensure a fair outcome in our trial by jury system

Judicial Misconduct In Criminal Cases: It’S Not Just The Counsel Who May Be Ineffective And Unprofessional, Richard Klein

Richard Daniel Klein

No abstract provided.

What’S More Important Than Wise Judges? Wise Voters, Alan E. Garfield

Alan E Garfield

No abstract provided.

Justice Holmes At The Intersection Of Philosophical And Legal Pragmatism, Seth C. Vannatta

Seth C Vannatta

Because of the prolific scholarship on legal theory by Judge Richard Posner, especially since his turn away from law and economics toward “pragmatism,” legal scholars began reading “legal pragmatism” as references to Posner’s thought alone. My present task is part of a larger process of rethinking Posner’s version of legal pragmatism. Posner’s inspiration for his turn toward pragmatism can be attributed, in large measure, to Oliver Wendell Holmes, Jr. Posner buys into three central insights of legal pragmatism, whose origins lie in the work of Holmes, anti-formalism, the prediction theory of the law, and a modicum of indeterminacy in judicial …

Shirking The Duty To Defend In Florida: Is Assignment The Exception To Argonaut?, Matthew J. Jowanna

Matthew J. Jowanna

A lawsuit is filed by a plaintiff and the defendant is served. The defendant has a drawer full of liability insurance policies and, therefore, the insured defendant sends a copy of the served complaint to any and all insurance carriers that may provide coverage for the claim. The insured defendant then receives a few coverage denials for reasons such as the event at issue did not occur within a certain policy period or that the insured’s private automobile policy does not provide coverage for a commercial general liability claim. In any event, the denials appear to be valid - so …

All Your Eggs In One Basket: Why Contract Law Proves Unreliable In Frozen Embryo Adoption Cases, Austin R. Caster

Austin R Caster

This article will show why infertile couples cannot unequivocally rely on good faith, consensual contracts in cases of assisted reproductive technology because the law is so unsettled. Each section will show why, because of alleged public policy implications, contract doctrines or clauses such as (1) the termination of parental rights, (2) the doctrine of waste, and (3) liquidated damages still remain almost completely unreliable in a matter regarding assisted reproductive technology. Though this uncertainty affects infertile couples trying to complete their families through various methods including adoption, surrogacy, in vitro fertilization, and artificial insemination, this article will focus on cases …

The Niqab In The Courtroom: Protecting Free Exercise Of Religion In A Post-Smith World, Adam Schwartzbaum

Adam Schwartzbaum

The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, …

Actual Versus Perceived Performance Of Judges, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Seattle University Law Review

Perceptions of judges ought to be based on their performance. Yet, few studies of the relation between perceived and actual judicial performance exist. Those claiming judicial bias should be especially sensitive to the relation between perception and performance. Judges perceived by the public or by the legal community as disfavoring a group may be regarded as biased, but that perception is unfair if the judges’ votes in cases do not disfavor the group. For example, it may be unfair to accuse an appellate judge of pro-state bias in criminal cases if the judge votes for defendants at a higher rate …

Processing Civil Rights Summary Judgment And Consumer Discrimination Claims, Deseriee A. Kennedy

Deseriee A. Kennedy

No abstract provided.

What Can We Demand Of Judges In Return For Independence?, David Klein

South Carolina Law Review

No abstract provided.