Law Commons^™

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

"The Hindrance Of A Law Degree": Justice Kagan On Law And Experience, Laura Krugman Ray

Laura K. Ray

No abstract provided.

Judgment And Opportunity: Decision Assignment On The Mclachlin Court, Peter Mccormick

Dalhousie Law Journal

The workload of the Supreme Court of Canada is shared among the Court's nine members, but is this sharing equal with respect to the writing of judgments? A simple count does not provide an answer because not all cases are equally important. This paper develops an objective measure of case importance-the Legal Complexity Index-and applies it to the cases decided by the McLachlin Court. It demonstrates that judgment-delivery opportunities for significant cases have not been shared equally, either overall or with respect to any of the major subdivisions of the caseload. Some judges enjoy the spotlight, while others are relegated …

When Rules Are Made To Be Broken, Zev J. Eigen, David S. Sherwyn, Nicholas F. Menillo

Northwestern University Law Review

When do judges follow rules expected to produce unjust results, and when do they intentionally misapply such rules to avoid injustice? Judicial rule-breaking is commonly observed when national dignity and morality are at stake, such as abolitionist judges charged with applying federal fugitive slave laws, or when lives hang in the balance, such as applications of criminal sentencing rules. Much less is understood about judicial rule-breaking in quotidian civil litigation, in spite of the sizeable impact on litigants and potential litigants, as well as the frequency with which judges face such decisions. This Article is the first to theoretically assess …

Is There A Place For Religion In Judicial Decision-Making?, Hon. Kermit V. Lipez

Touro Law Review

No abstract provided.

When Judges Have Reasons Not To Give Reasons: A Comparative Law Approach, Mathilde Cohen

Washington and Lee Law Review

Influential theories of law have celebrated judicial reason-giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in djudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason-giving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between reasons for …

The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele

Ursula Bentele

Examination of the universe of cases in which the Supreme Court has recently reversed grants of federal habeas relief by circuit courts by issuing summary, per curiam opinions reveals some disturbing patterns. Substantively, the opinions continue the Court’s narrow interpretation of what law has been so clearly established that state courts must abide by its constitutional principles. Moreover, any rejection of a constitutional claim must be upheld unless there is no possibility that fairminded jurists could disagree with that determination. In terms of process, the summary reversals are issued in response to petitions for review by wardens, when the petitioners …

Impartiality And Independence: Misunderstood Cousins, James E. Moliterno

James E. Moliterno

No abstract provided.

In Search Of The Real Roberts Court, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Rise Of Judicial Governance In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …

Judicial Selection In Congress' Lame Duck Session, Carl W. Tobias

Law Faculty Publications

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Reality’S Bite, Kerri Lynn Stone

Faculty Publications

The realities of the workplace have been captured by years of socio-scientific, industrial organizational, and other psychological research. Human behavior and thought, interpersonal dynamics, and organizational behavior, with all of their nuances and fine points, are now better understood than they have ever been before, but unless they are used to inform and buttress the rules of law and interpretations promulgated by courts, Title VII’s ability to successfully regulate the workplace to rid it of discrimination will be threatened. This article expands upon that premise, lamenting judges, and specifically justices having eschewed available research and other insights into workplace realities, …

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

James R Maxeiner

Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …

Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys

Todd E. Pettys

In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point for empirical …

Deciding, Curtis E.A. Karnow

Curtis E.A. Karnow

Review of cognitive fallacies judges may encounter, such as expectation fallacies, cognitive dissonance, narrative fallacies and generally problems with associative reasoning

Complexity In Litigation: A Differential Diagnosis, Curtis E.A. Karnow

Curtis E.A. Karnow

This note examines complex litigation with the goal of providing practical options for its management. It is written from a judge’s perspective. I review the definition of a “complex” case and explain its emphasis on the need for a judge to manage the case, with a focus on enabling settlement. I address a series of specific characteristics or aspects of complex cases, explaining how these affect the progress of the case. Then the note explores the many tools and techniques judges have to manage and ameliorate difficult aspects of complex cases. {Pre-print. Final article as published differs substantially and is …

Taking Another Look At Second-Look Sentencing, Meghan J. Ryan

Meghan J. Ryan

An unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, a bill recently introduced in Congress would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders. Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been …

The Theory Of Law “As Claim” And The Inquiry Into The Sources Of Law. Bruno Leoni In Prospect, Daniele Bertolini

daniele bertolini

This paper presents a systematic analysis of the theory of law "as claim" through a critical review of Bruno Leoni’s work. I argue that this philosophical theory provides a useful methodological framework for the analysis of law-making processes. I also demonstrate how Leoni’s critique of legislation offers insights into the efficient institutional response to the growing demand for law that has emerged from the increasing complexity of contemporary societies — insights that are particularly relevant in an age characterized by continuing technological changes and profound social mutations that challenge the existing organization of the sources of law. Finally, I contend …

Alternate Judges As Sine Qua Nons For International Criminal Trials, Megan A. Fairlie

Vanderbilt Journal of Transnational Law

When one of the three judges hearing the case against Vojislav Seselj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge--who had not spent a single day participating in the proceeding--had familiarized himself with the trial record. This Article demonstrates why the plan to proceed with a new judge in Seselj's case was both procedurally illegitimate and markedly at odds with the ICTY's statutory guarantee of a fair …

Challenging The Randomness Of Panel Assignment In The Federal Courts Of Appeals, Adam S. Chilton, Marin K. Levy

Faculty Scholarship

A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so.

To determine whether the circuit courts utilize random assignment, we have created what we believe to be the largest dataset of panel assignments of those courts constructed to date. …

Judges As Guardian Angels: The German Practice Of Hints And Feedback, Robert W. Emerson

Vanderbilt Journal of Transnational Law

The German practice of Richterliche Hinweispflicht is a judicial duty to give hints and feedback. In a very proactive position, the German judge asks questions of the parties designed to clarify and sharpen the key facts and issues and to give the parties a chance to correct matters that may be grounds for disposition. German judges also must ensure that the parties understand all matters that could affect the outcome of the case. In effect, the German judge's roles may be viewed as civil servant, teacher, and activist, rather than as umpire and overseer, as in the United States.

American …

Standards Of Legitimacy In Criminal Negotiations, Wesley Macneil Oliver, Rishi Batra

Faculty Articles

Scholarship on negotiation theory and practice is rich and well developed. Almost no work has been done, however, to translate to the criminal context the lessons learned about negotiation from extensive empirical study using the disciplines of economics, game theory, and psychology. This Article suggests that defense lawyers in criminal negotiations can employ tools frequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to …

The State Of Recusal Reform, Charles G. Geyh, Myles Lynk, Robert S. Peck, Toni Clarke

Articles by Maurer Faculty

No abstract provided.

Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong

Faculty Articles

This phenomenon suggests a pressing need for further scrutiny into matters relating to the education of judges in this country. This Essay therefore considers of a number of fundamental issues relating to judicial education in the United States so as to consider, at least as a preliminary matter, whether regulatory capture exists. Given the scope of this Essay, some issues are necessarily excluded. Nevertheless, this Essay hopes to trigger a deeper debate about judicial education in this country.

The structure of the analysis is as follows. First, the Essay considers certain obstacles to research concerning judicial education as a means …

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

Articles in Law Reviews & Other Academic Journals

The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …

Statutory Interpretations And The Therapy Of The Obvious, Edward L. Rubin

Vanderbilt Law Review

Arthur Koestler wrote that "the more original a discovery the more obvious it seems afterward."' The same may be said about theories of law, and specifically about Robert Katzmann's new book, Judging Statutes. Judge Katzmann's approach to statutory interpretation seems so plausible and balanced that it is hard to believe that anyone ever believed anything else. In this particular case, however, there is in fact an "anything else." It is, of course, Justice Antonin Scalia's campaign to displace intentionalist or purposivist approaches to interpretation with what has come to be called "textualism," and his related effort to rule out reliance …

What Judges Want And Need: User-Friendly Foundations For Effective Judicial Education, Duane Benton, Jennifer A.L. Sheldon-Sherman

Journal of Dispute Resolution

This article evaluates the connection between judicial education and judges’ needs and preferences. In Part I, we begin by discussing the history, purpose, and form of judicial education, charting its evolution over time. In Part II, we examine current judicial education programs and scholarship, highlighting differences and similarities between federal and state programming. In Part III, we analyze the limitations of existing scholarship and programming, arguing judicial education programs are insufficiently tied to evidence of judicial demands. We conclude in Parts IV and V by suggesting two proposals to align programming with needs: (1) an annual needs-based assessment of judicial …

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Journal of Dispute Resolution

Producing well-written reasoned judgments (a term that is used herein to denote both trial court decisions and appellate opinions) is the goal of all members of the bench. Badly written rulings can have significant legal consequences for both the parties, who may incur costs as a result of a need to appeal a poorly worded decision or opinion, and society as a whole, since a poorly drafted precedent may drive the law in an unanticipated and unfortunate direction or lead to increased litigation as individuals attempt to define the parameters of an ambiguous new ruling. As a result, helping judges …

Of Judges, Law, And The River: Tacit Knowledge And The Judicial Role, Chad M. Oldfather

Journal of Dispute Resolution

“What does it mean to be a judge?” That’s a tall order, and one is tempted to begin—and perhaps to end—by formulating taxonomy of characteristics that judges ought to have. Indeed, that is a tactic that others have used. The resulting lists differ in their particulars, but are broadly similar. The enumerated traits include attributes like intelligence, legal knowledge, judgment, decisiveness, and so on.