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Articles 1 - 30 of 54
Full-Text Articles in Law
Defining Dicta, Michael Abramowicz, Maxwell Stearns
Defining Dicta, Michael Abramowicz, Maxwell Stearns
George Mason University School of Law Working Papers Series
In recent decades, legal scholars have devoted substantially greater attention to studying the origin and nature of stare decisis than to defining the distinction between holding and dicta. This appears counter-intuitive when one considers, first, that stare decisis applies only to holdings of announced precedents, and second, that beyond problematic and rudimentary intuitions, the legal system has failed to develop meaningful definitions of these terms. While lawyers, legal scholars, and jurists likely assume that they can identify dicta when they see it, a careful analysis that categorizes the range of judicial assertions in need of proper characterization reveals that defining …
Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney
Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney
The Ohio State University Moritz College of Law Working Paper Series
This article contributes to an ongoing debate about the feasibility and desireability of measuring the "merit" of appellate judges--and their consequent Supreme Court potential--by using objective performance variables. Relying on the provocative and controversial "tournament criteria" proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the "Supreme Court potential" of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two men's careers on the …
Reconsider Old Taboo, Scott Dodson
Reconsider Old Taboo, Scott Dodson
Popular Media
The recent cries of judicial activism need to be scrutinized. Are decisions like Lawrence and Goodrich really activist and, if so, is that even something to be discouraged? In this op-ed, I look closely at the "activism" of these decisions and conclude that there is nothing inherently activist about them. I also conclude that, even if there is, activism is defensible in certain cases when it returns to the people the power to exercise their own individual liberties.
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
University of San Diego Public Law and Legal Theory Research Paper Series
This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or …
Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
University of San Diego Public Law and Legal Theory Research Paper Series
In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own …
Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law
Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates …
A Tournament Of Virtue, Lawrence B. Solum
A Tournament Of Virtue, Lawrence B. Solum
University of San Diego Public Law and Legal Theory Research Paper Series
How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should …
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
University of San Diego Public Law and Legal Theory Research Paper Series
Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …
The Majoritarian Rehnquist Court?, Neal Devins
The Majoritarian Rehnquist Court?, Neal Devins
Faculty Publications
No abstract provided.
Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.
Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.
Faculty Publications
No abstract provided.
The Personality Of U.S. Supreme Court Justice Clarence Thomas, Aubrey Immelman, Jamie Thielman
The Personality Of U.S. Supreme Court Justice Clarence Thomas, Aubrey Immelman, Jamie Thielman
Psychology Faculty Publications
This paper presents the results of an indirect assessment of the personality of U.S. Supreme Court associate justice Clarence Thomas, from the conceptual perspective of Theodore Millon.
Information concerning Justice Thomas was collected from biographical sources, speeches, and published reports and synthesized into a personality profile using the second edition of the Millon Inventory of Diagnostic Criteria (MIDC), which yields 34 normal and maladaptive personality classifications congruent with Axis II of DSM-IV.
The personality profile yielded by the MIDC was analyzed on the basis of interpretive guidelines provided in the MIDC and Millon Index of Personality Styles manuals. Justice …
Supreme Court Statistical Overview, October Term 2003, Georgetown University Law Center, Supreme Court Institute, Liz Hollander
Supreme Court Statistical Overview, October Term 2003, Georgetown University Law Center, Supreme Court Institute, Liz Hollander
Supreme Court Overviews
No abstract provided.
Culture Of Quiescence, Carl Bogus
Culture Of Quiescence, Carl T. Bogus
Appropriate Role Of Foreign Judgments In The Interpretation Of American Law: Hearing Before The H. Comm. On The Judiciary, 108th Cong., Mar. 25, 2004 (Statement Of Vicki C. Jackson, Prof. Of Law, Geo. U. L. Center), Vicki C. Jackson
Testimony Before Congress
No abstract provided.
Chief Justice Harry L. Carrico And The Ideal Of Judicial Independence, Rodney A. Smolla
Chief Justice Harry L. Carrico And The Ideal Of Judicial Independence, Rodney A. Smolla
Scholarly Articles
Not available.
Judicial Ethics In The Twenty-First Century: Tracing The Trends, Roger J. Miner '56
Judicial Ethics In The Twenty-First Century: Tracing The Trends, Roger J. Miner '56
Lawyers and the Legal Profession
No abstract provided.
The Judicial Function: Justice Between The Parties, Or A Broader Public Interest?, Richard Zitrin
The Judicial Function: Justice Between The Parties, Or A Broader Public Interest?, Richard Zitrin
Faculty Scholarship
No abstract provided.
Virtuous Judges And Electoral Politics: A Contradiction?, Marie Failinger
Virtuous Judges And Electoral Politics: A Contradiction?, Marie Failinger
Faculty Scholarship
Judge Thomas J. Spargo serves as a fascinating poster-child in the debate on what’s wrong (or right) with judicial elections. Judge Spargo, campaigning for re-election as Justice of the Berne Town Court in upstate New York, was accused of “failing to observe the high standards of conduct” expected as a judge because he handed out doughnuts to voters. Judge Spargo’s case and others illustrate that popular debates about the merits of judicial elections versus judicial selection commissions have probably been mis-focused on two “second-order questions rather than concentrating on “first-order” concerns in judicial selection. This article discusses these questions and …
Federal Justice And Moral Reform In The United States District Court In Indiana, 1816-1869, George W. Geib, Donald B. Kite
Federal Justice And Moral Reform In The United States District Court In Indiana, 1816-1869, George W. Geib, Donald B. Kite
Scholarship and Professional Work - LAS
In November 1840, William Martin, an Indiana mail stage driver found himself standing in United States District Court, convicted of stealing a letter containing bank notes from the mail.^1 District Judge Jesse Lynch Holman reviewed the evidence that convinced the jury, and then lectured the defendant upon his future prospects:
The prospect before you is truly dark and dreary; yet there is a distant ray of hope that may enlighten your path You may do much by a patient submission to the law—by a reformation of life and an upright line of conduct ... to some extent, to regain a …
Book #25, Roger J. Miner '56
One Man's Token Is Another Woman's Breakthrough - The Appointment Of The First Women Federal Judges, Mary Clark
One Man's Token Is Another Woman's Breakthrough - The Appointment Of The First Women Federal Judges, Mary Clark
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss
Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss
Cornell Law Faculty Publications
During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …
Judge Keith, The Constitution And National Security From Haddad To Sinclair - The Damon J. Keith Law Collection Of African-American Legal History Wayne State University Spencer Partrich Auditorium November 18, 2003, Robert Allen Sedler
Law Faculty Research Publications
No abstract provided.
Brennan Center For Justice Symposium Introduction: Diversity, Impartiality, And Representation On The Bench, Kele Williams
Brennan Center For Justice Symposium Introduction: Diversity, Impartiality, And Representation On The Bench, Kele Williams
Articles
No abstract provided.
Political Representation And Accountability Under Don't Ask, Don't Tell, Tobias Barrington Wolff
Political Representation And Accountability Under Don't Ask, Don't Tell, Tobias Barrington Wolff
All Faculty Scholarship
The U.S. military's Don't Ask, Don't Tell policy constitutes a singular type of speech regulation: an explicit prohibition on identity speech by a defined population of individuals that mandates a state of complete social invisibility in both military and civilian life. The impact of such a regulation upon the public speech values protected by the First Amendment should not be difficult to apprehend. And yet, as the tenth anniversary of the policy approaches, First Amendment scholars have largely ignored this seemingly irresistible subject of study, and the federal courts have refused to engage with the policy's implications for public speech …
A Courtroom Diagnosis: Countering The Defense Of Temporary Brittle Bone Disease And Mild Oi, Joelle A. Moreno
A Courtroom Diagnosis: Countering The Defense Of Temporary Brittle Bone Disease And Mild Oi, Joelle A. Moreno
Faculty Publications
In child abuse cases involving multiple fractures, prosecutors and investigators are increasingly facing a relatively new defense. In some jurisdictions, judges are allowing defense medical experts to testify that infants have not been abused, but instead suffer from a mild form of Osteogenesis Imperfecta (OI) or a purported variant of OI, Temporary Brittle Bone Disease (TBBD). These diagnoses are offered in cases where the injuries are highly specific for abuse because they involve: (1) fractures typical of abuse in different stages of healing; (2) infants who have tested negative for conventionally diagnosable metabolic bone diseases (including OI); and (3) infants …
The Advantages Of The Civil Law Judiciary As The Model For Emerging Legal Systems, Charles H. Koch Jr.
The Advantages Of The Civil Law Judiciary As The Model For Emerging Legal Systems, Charles H. Koch Jr.
Faculty Publications
No abstract provided.
Induced Litigation, Chris Guthrie, Tracey E. George
Induced Litigation, Chris Guthrie, Tracey E. George
Vanderbilt Law School Faculty Publications
If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely …