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Judges

2004

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Articles 1 - 30 of 54

Full-Text Articles in Law

Defining Dicta, Michael Abramowicz, Maxwell Stearns Dec 2004

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 Dec 2004

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 Nov 2004

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 Sep 2004

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 Sep 2004

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 Sep 2004

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 Sep 2004

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 Sep 2004

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 Jul 2004

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 Jul 2004

The Majoritarian Rehnquist Court?, Neal Devins

Faculty Publications

No abstract provided.


Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr. Jul 2004

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 Jul 2004

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 Jun 2004

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 Apr 2004

Culture Of Quiescence, Carl Bogus

Law Faculty Scholarship

No abstract provided.


Culture Of Quiescence, Carl T. Bogus Apr 2004

Culture Of Quiescence, Carl T. Bogus

Law Faculty Scholarship

No abstract provided.


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 Mar 2004

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 Mar 2004

Chief Justice Harry L. Carrico And The Ideal Of Judicial Independence, Rodney A. Smolla

Scholarly Articles

Not available.


Virtuous Judges And Electoral Politics: A Contradiction?, Marie Failinger Jan 2004

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 Jan 2004

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 …


One Man's Token Is Another Woman's Breakthrough - The Appointment Of The First Women Federal Judges, Mary Clark Jan 2004

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 Jan 2004

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 Jan 2004

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.


A Tournament Of Judges?, Stephen Choi, Mitu Gulati Jan 2004

A Tournament Of Judges?, Stephen Choi, Mitu Gulati

Faculty Scholarship

We suggest a Tournament of Judges where the reward to the winner is elevation to the Supreme Court. Politics (and ideology) surely has a role to play in the selection of justices. However, the present level of partisan bickering has resulted in delays in judicial appointments as well as undermined the public's confidence in the objectivity of justices selected through such a process. More significantly, much of the politicking is not transparent, often obscured with statements on a particular candidate's "merit"- casting a taint on all those who make their way through the judicial nomination process. We argue that the …


Speech And Strife, Robert L. Tsai Jan 2004

Speech And Strife, Robert L. Tsai

Faculty Scholarship

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation …


Judicial Ethics In The Twenty-First Century: Tracing The Trends, Roger J. Miner '56 Jan 2004

Judicial Ethics In The Twenty-First Century: Tracing The Trends, Roger J. Miner '56

Lawyers and the Legal Profession

No abstract provided.


A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan's Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli Jan 2004

A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan's Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli

Faculty Scholarship

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the …


The Allocation Of Profits Between Related Entities And The Oppression Remedy: An Analysis Of Ford Motor Co. V. Omers, Kim Brooks, Anita Anand Jan 2004

The Allocation Of Profits Between Related Entities And The Oppression Remedy: An Analysis Of Ford Motor Co. V. Omers, Kim Brooks, Anita Anand

Articles, Book Chapters, & Popular Press

In Ford Motor Co. v. Ontario Municipal Employees Retirement Board, the Ontario Superior Court of Justice reviewed the transfer pricing arrangements between parent and subsidiaries Ford US and Ford Canada in the context of a going-private transaction. Its review was the key to resolving the two main issues in the case: first, did the transfer-pricing arrangements understate Ford Canada's profits so as to undermine the fair value of Ford Canada's shares? And second, did the transfer-pricing arrangement oppress or unduly disregard the interests of Ford Canada's minority shareholders so as to give rise to the oppression remedy?

In this comment, …


Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault Jan 2004

Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault

Faculty Scholarship

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters …


Defense-Oriented Judges, Abbe Smith Jan 2004

Defense-Oriented Judges, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In this essay, I argue in favor of so-called "defense-oriented judges." Instead of the increasingly prosecution-oriented judicial aspirants who ascend to the bench, we need more judges who care about protecting the rights of the accused, who will put the government to the test, and who have some compassion for those who come before them. Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants are in fact guilty, or because they dislike defense lawyers, we need judges who are truly neutral and disinterested. Instead of judges who …


Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney Jan 2004

Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney

Faculty Scholarship

This article contributes to an ongoing debate about the feasibility and desirability 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 …