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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 …
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.
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.
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 …
Induced Litigation, Tracey E. George, Chris Guthrie
Induced Litigation, Tracey E. George, Chris Guthrie
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 …
Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney
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 …
Must The Reports Of Tax Court Special Trial Judges Be Disclosed?, Leandra Lederman
Must The Reports Of Tax Court Special Trial Judges Be Disclosed?, Leandra Lederman
Articles by Maurer Faculty
No abstract provided.
A Principled Approach To The Quest For Racial Diversity On The Judiciary, Luis Fuentes-Rohwer, Kevin R. Johnson
A Principled Approach To The Quest For Racial Diversity On The Judiciary, Luis Fuentes-Rohwer, Kevin R. Johnson
Articles by Maurer Faculty
As has been the case with respect to many political and social institutions in American society, diversity has been demanded, and at times pursued, in the nomination and appointment of state and federal judges. Nonetheless, commentators have long lamented the lack of diversity among judges in the United States.
U.S. Supreme Court appointments epitomize the glaring lack of diversity on the federal judiciary. Not until 1967 did President Lyndon Baines Johnson appoint the first African American Justice, Thurgood Marshall, to the Court. Since then, a more diverse group of judges has served on the state and federal courts than throughout …
Judging Environmental Law, Richard J. Lazarus
Judging Environmental Law, Richard J. Lazarus
Georgetown Law Faculty Publications and Other Works
The title of this Essay, "Judging Environmental Law," evokes several different themes. On the one hand, the title presents an occasion to discuss the role of judges in environmental law. On the other hand, it offers an opportunity to judge environmental law itself: whether environmental law is guilty, as charged by some in industry, of overreaching in its regulatory requirements; or, whether environmental law is instead guilty, as charged by some environmentalists, of underreaching, by failing to address pressing pollution control and natural resource management concerns. Finally, the title of the Essay possibly presents an occasion for a more theoretical …
Defense-Oriented Judges, Abbe Smith
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 …