Law Commons^™

Politics In The Non-Political Branch, Justin L. Swanson

College of Journalism and Mass Communications: Professional Projects

Across the country there exists a patchwork of legal systems by which judges are appointed retained. In some states, like Illinois, it is a fully political process where judges actively campaign for election to the bench. But a majority of states, including Nebraska, have adopted the Merit Selection System, which attempts to remove politics from these processes. Nevertheless, politics can enter into the retention votes. And when they do, it can be extremely difficult for judges to overcome.

Share Transfer Restrictions In Close Corporations As Mechanisms For Intelligible Corporate Outcomes, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson

All Faculty Scholarship

In this essay, Professor Robinson supports the current Israeli proposal for structuring judicial discretion in sentencing, in particular its reliance upon desert as the guiding principle for the distribution of punishment, its reliance upon benchmarks, or “starting-points,” to be adjusted in individual cases by reference to articulated mitigating and aggravating circumstances, and the proposal’s suggestion to use of an expert committee to draft the original guidelines.

Listening To Victims, Jayne W. Barnard

Faculty Publications

No abstract provided.

Judicial Opinion Writing: An Annotated Bibliography, Ruth C. Vance

Law Faculty Publications

No abstract provided.

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky

Akron Law Faculty Publications

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Judicial Retirement And Return To Practice, Mary Clark

Articles in Law Reviews & Other Academic Journals

This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.

This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Articles in Law Reviews & Other Academic Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

The Persistent Cultural Script Of Judicial Dispassion, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In contemporary Western jurisprudence it is never appropriate for emotion - anger, love, hatred, sadness, disgust, fear, joy - to affect judicial decision-making. A good judge should feel no emotion; if she does, she puts it aside. To call a judge emotional is a stinging insult, signifying a failure of discipline, impartiality, and reason. Insistence on judicial dispassion is a cultural script of unusual longevity and potency. But not only is the script wrong as a matter of human nature - emotion does not, in fact, invariably tend toward sloppiness, bias, and irrationality - but it is not quite so …

Emotional Regulation And Judicial Behavior, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. In the post-Realist era it is possible to acknowledge that judges have emotional reactions to their work, yet our legal culture continues to insist that a good judge firmly puts those reactions aside. Thus, we expect judges to regulate their emotions, either by preventing emotion’s emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation.

This Article proposes a model for judicial emotion regulation that goes beyond a …

White Male Heterosexist Norms In The Confirmation Process, Theresa M. Beiner

Faculty Scholarship

Justice Sonia Sotomayor's confirmation hearing took a controversial turn when commentators picked up on a reference in the New York Times to a portion of a speech she gave in 2001. In that speech, then Judge Sotomayor opined that, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." That statement, along with her participation in the per curiam decision in Ricci v. DeStefano, caused a minor storm during her confirmation. More recently, former Harvard Dean and former …

Why Judicial Disqualification Matters. Again., Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

I am really happy to be part of this tribute to Paul Verkuil. It may surprise those in the audience to learn that I am bringing some needed diversity to today's proceedings - I am the only other Dutch American on the program! But perhaps my twenty years at the "Administrative Conference" also qualifies me to say a few words about how thrilled I am that we have it back - "ACUS 2.0" we can call it, complete with a website this time- and that Paul is at its helm. And I want to thank Paul for bringing me back …

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …

Lies, Damned Lies, And Judicial Empathy, Mary Anne Franks

Articles

No abstract provided.