Law Commons^™

Teaching With Feminist Judgments, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Elisabeth Haub School of Law Faculty Publications

This chapter, part of Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom (Carolina Academic Press 2021), provides an overview of the U.S. Feminist Judgments Project, a collaboration of feminist scholars and lawyers who rewrite significant judicial opinions using feminist methods and reasoning. One of the primary goals of the series of Feminist Judgments books is to demonstrate that the law has a vast, but often unrealized, potential for social justice. The feminist judgment methodology requires the authors of rewritten opinions to act as judges in following the rules of precedent and custom—and to be bound by …

To Cite Or Not To Cite: Is That Still A Question, Deborah L. Heller

Elisabeth Haub School of Law Faculty Publications

Some states still restrict the citation of unpublished opinions, and the rules among the federal circuits vary slightly as well. This article looks at the history of case publication, the controversy over unpublished opinions, and the current rules related to the citation of unpublished cases.

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 …

The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

Courts in key climate change cases have abdicated their constitutional responsibility to protect a prejudiced and disenfranchised group (nonvoting minors and future generations) and remedy an insidious pathology in public discourse and the political process: the industry-funded climate disinformation campaign. This Article posits that this abdication results from courts' uneasiness about displacing the prerogatives of democratically elected bodies. This uneasiness is misplaced. Court engagement with climate cases would strengthen democracy in accord with widely accepted justifications for countermajoritarian judicial review. This Article first describes in detail how courts exhibit a frustrating reticence to accept jurisdiction over cases that present questions …

Judging Judges Fifty Years After – Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In Chicago, Illinois--and in courtrooms across the United States--judicial misconduct has affected trial outcomes as long as there have been trials. While Judge Julius Hoffman's conduct in the “Chicago Eight” trial is an egregious example of judicial behavior toward criminal defendants, this piece's examination of at least ten different categories of misconduct in dozens of cases makes the argument that misbehavior by judges is less of an exception to the rule of impartiality than the thinking public might know. In considering these brazen examples, practitioners and academics alike can evaluate how to best confront the extent to which conduct like …

Judging During Crises: Can Judges Protect The Facts?, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

With the advent of instantaneous information and the trend toward shrinking adherence to the truth, the conversation surrounding the ability of judges to conduct outside research into the matters before them is gaining urgency. In a “post-truth” world, the role that the judiciary plays in our democracy must shift from trier of fact to guardian of factual integrity. And to do this, the professional ethics rules assigned to the judiciary may need re-evaluation.

This Essay argues that the judiciary's ambivalence to its role as fact finder must be overcome, and where appropriate, judges may be empowered to seek out supplemental …

Why Women: Judging Transnational Courts And Tribunals, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Elisabeth Haub School of Law Faculty Publications

Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more …

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support …

Rewriting Judicial Opinions And The Feminist Scholarly Project, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O'Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very uneasily in most …

The Life And Legacy Of Chief Judge Lawrence H. Cooke: "Truly An Exemplary Life. A Life Well Lived", Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

It is an appropriate tribute to the late Chief Judge of New York, Lawrence H. Cooke, that this article be devoted to a man who many leaders of the bench, bar, and academia consider to be the greatest jurist to ever serve on New York State's highest court. Chief Judge Cooke, better known as Larry, served with honor and distinction as an associate judge of the Court of Appeals, and later as Chief Judge.

Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A lawyer’s ineffective representation of a client may be attributable to a lawyer’s own personal failings. However, impairment of the right to effective assistance of counsel may also come from a trial judge’s conduct, and can takes many forms, and occur in varying circumstances. It is therefore difficult to formulate clear principles to cover all of the various situations in which a judge can undermine effective representation. The Borukhova and Mallayev case is only the most recent illustration of the way a ruling of a judge – forcing the lawyer to sum up his case without giving the lawyer adequate …

Remarks At Memorial Service For The Honorable Morris E. Lasker, U.S. District Court, Southern District Of New York, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Remarks At Memorial Service For The Honorable Morris E. Lasker, U.S. District Court, Southern District Of New York, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Importance Of Lawyers In Judge Barksdale's Writings, Andrew C. W. Lund

Elisabeth Haub School of Law Faculty Publications

It is my honor to contribute a piece to this wonderful collection commemorating Judge Barksdale's extraordinary career on the bench. It was truly a privilege to clerk for the Judge and it is no less so to have the opportunity to write a bit about his impact on the law.

Working Class Judges, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Part I of this article provides our reanalysis of Scott Baker's data that examines the relationship between judicial salaries and the work habits and voting patterns of federal appellate judges. Part II establishes an additional comparative context that allows us to speculate why Top Five legal markets may foster a more intense tradeoff of influence versus remuneration. Indeed, as we note, the real or perceived financial tradeoffs are so enormous - and conspicuous - in Top Five markets that federal judges may feel they have been lumped together with a large, faceless working class. We conclude by suggesting that the …

An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Despite the importance of this question, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their subsequent behavior on the Supreme Court. If the hearings reveal substantively valuable information about nominees' views, then we would expect to find a relationship between the Justices' statements and their judicial decisions. This Article is an initial look at that relationship. Specifically, we examine statements involving the nominees' views on stare decisis, originalism and legislative history, and also statements involving their views on the rights of criminal defendants. We then rank order the nominees' confirmation hearings …

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article tests a model of judicial decisionmaking that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. …

The Dubitante Opinion, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

A dubitante (pronounced d[y]oo-bi-tan-tee) opinion indicates that “the judge doubted a legal point but was unwilling to state that it was wrong.” Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion--What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of …

A Call For Change: Improving Judicial Selection Methods, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Empirical data show that, despite the significant electoral success of state court judges, elections still impact judicial decision making. Using the State of Wisconsin as an example, this Essay suggests that Wisconsin and other state legislatures, with the support of bar associations and academics, should revisit the historical underpinnings of judicial elections and consider both whether electing judges conforms with the historical goals of having an elected judiciary and whether the available empirical data support the belief that elected judges can be systematically consistent and independent in the decision making process.

Voting And Electoral Politics In The Wisconsin Supreme Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article examines criminal cases decided by the Wisconsin Supreme Court over a fifteen-year period in an effort to discern whether judicial elections undercut judicial independence by affecting the ways justices vote. Wisconsin was chosen for this study because the state's mix of appointed and elected judges allows a researcher to control for different judicial selection systems. Specifically, this Article questions whether voting patterns may be affected by a justice's proximity to judicial elections, election margins, and whether a justice was appointed or elected in the initial term, since the governor may appoint a justice to fill a vacancy on …

Now You See It, Now You Don't: Depublication And Nonpublication Of Opinions Raise Motive Questions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The basis for these comments is a decision last year by the Eighth Circuit Court of Appeals in Anastasoff v. United States. The court held that an Eighth Circuit local rule, which authorized nonpublication of opinions and explicitly stated that unpublished opinions were to have no precedential effect, was unconstitutional. The panel, in an opinion by Judge Richard S. Arnold, reasoned that a court rule purporting to confer upon appellate judges an absolute power to decide which decisions would be binding and which would not be binding went well beyond the “judicial power” within the meaning of Article III of …

Judicial Interference With Effective Advocacy By The Defense, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A fundamental premise of the American criminal justice system is defense counsel's zealous professional advocacy. Representation of a criminal defendant to be effective must be vigorous. In administering a trial, judges have a duty to ensure a fair and orderly proceeding. On occasion, however, judges overstep the line and impede defense counsel's advocacy functions unfairly. This article describes some of the ways that trial judges may violate legal and ethical standards by improperly interfering with defense counsel's courtroom functions.

Vincent L. Broderick--A Distinguished Jurist And Great Teacher, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

Judge Broderick had a wonderful sense of humor and taught our law students, the bench and bar, and his colleagues, to be stronger professionals and better human beings. He will be sorely missed by the faculty, deans, students, and alumnae of the Pace University School of Law.

Supervisory Power Of The New York Courts, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article discusses the role of supervisory power in the judicial culture of New York. In order to place supervisory power in a context, Part II outlines the emergence and decline of supervisory power in the federal system. Part III then traces the origin of supervisory power in New York to Cardozo's dictum in Lemon. Part IV explains how supervisory power is an aspect of the much broader inherent judicial power, which finds expression in the familiar common law decision-making process. Part V discusses three principal areas in which supervisory power has been exercised by New York courts since Cardozo: …

Thurgood Marshall: The Lawyer As Judge, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

When Thurgood Marshall took the Oath in 1967, it was the twilight of one of the Court's most brilliant periods: the Warren Court's revolution of criminal and racial justice. He was a part of that alliance for two Terms. When a new Court, and new alliances, moved the Court into the dark shadows, he and his closest colleague, William Brennan, Jr., held staunchly to their vision of the Court's historic function “to be watchful for the constitutional rights of the citizen, and against any stealthy encroachment thereon.” He remained faithful to that vision to the end when, as a lone …

"Taking" The Imperial Judiciary Seriously: Segmenting Property Interests And Judicial Revision Of Legislative Judgments, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This Article examines the diversion of the Takings Clause from its historic limited role to that of a charter for courts to second-guess legislative determinations of land-use rights and wrongs. As we shall see, prior to Lucas the Supreme Court and others following its lead have generally not regarded the Takings Clause as a warrant for reaching de novo determinations on land use problems and then substituting such judicial determinations, if different, for those of the legislature. Some notable exceptions in the Claims Court and Federal Circuit will then be considered along with the ostensible Supreme Court authority, a sentence …

Justice Brennan And The First Amendment Minefield: In Respectful Appreciation, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

It is a special privilege, and a personal joy, for me to have the opportunity to contribute a piece honoring such a revered figure. I make no claim to scholarly objectivity. My premise is simple: William J. Brennan has given us a legacy of first amendment decisions, concurrences, and dissents that reflect great honor on the jurist. My portion of this Festschrift provides selected examples of Justice Brennan's contribution, and concludes by thanking him for serving, through his opinions, as a mentor for me throughout my career as a teacher of constitutional law.

Judicial Misconduct During Jury Deliberations, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The author considers the two principal types of improper judicial behavior that may occur during the jury deliberation process. Judicial conduct that attempts to place undue pressure on a jury to reach a verdict may include verdict-urging instructions, threats and intimidation, and inquiry into the numerical division of the jury on the merits of the verdict. Judicial participation in private, ex parte communications with jurors may also subvert orderly trial procedure and undermine the impartiality of the jury. Neither kind of judicial conduct may be allowed to compel a verdict from a jury.

Justice William J. Brennan, Jr. - The Moral Force Of His Language, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The enduring strength of Justice William J. Brennan Jr.'s constitutional vision is a tribute to his extraordinary scholarship and powerful logic. His opinions will be studied, cited, and honored for generations for their immense contribution to the constitutional protection of individual rights. But there is a further dimension to his jurisprudence that has always struck me - the moral force of his language. Justice Brennan's eloquent, passionate, and compassionate prose constantly exhorts us to a higher moral plane. To the disadvantaged, the accused, the dissident, and the condemned, Justice Brennan's words are a timeless anthem of sustenance and hope.

Review Of "Honorable Justice: The Life Of Oliver Wendell Holmes" By S. Novick, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.