Law Commons^™

Cazul Aparenţei Ca Normativitate Transformativă. Exemple Din Dreptul American = The Case Of Appearance As A Transformative Norm. Examples From American Law, Dana Neacsu

Law Faculty Publications

Acestarticol discută cum adesea credem că aparenţa este o versiune superficială a realităţii. In acest sens, se demonstrează cum, în anumite condiţii, aparenţele pot facilita apariţia unei realităţi juridice. Mai mult, uneori, nu există nicio diferenţă normativă între apariţia şi realitatea unui interes legal. Totodată, se analizează pe scurt aparenţa de legalitate în contextul statului de drept american - în cateva exemple limitate la reglementările bancare şi activitatea judiciară.

This article discusses the relationship between appearance and reality from a legal perspective, dismantling the belief that appearance is a superficial version of reality without any cause or impact on it. …

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 …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Scholarly Works

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

Playing Forty Questions: Responding To Justice Roberts' Concerns In Caperton And Some Tentative Answers About Operationalizing Judicial Recusal And Due Process, Jeffrey W. Stempel

Scholarly Works

The Chief Justice of the United States would probably have excelled as a negative debater in high school forensics competitions. Good negative debaters are, as my high school English teacher put it, “great point-pickers” in that they frequently challenge affirmative proposals with a series of “what if?” or “how about?” or “what would you do if?” questions designed to leave the affirmative resolution bleeding to death of a thousand cuts. Less charitable observers might call it nit-picking. After reading Chief Justice Roberts's dissenting opinion in Caperton v. A.T. Massey Coal Co., one can easily imagine him as a high school …

The Endless Judicial Selection Debate And Why It Matters For Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

In this overview, I begin by describing the five different systems of state judicial selection that have evolved out of a perennial struggle to strike an optimal balance between judicial independence and judicial accountability. I then explore recent developments that have intensified that struggle, before analyzing, with reference to available research, how different selection systems counter or accommodate such developments. My purpose here is not to write (another) position piece. Rather, my purpose is to step back and contextualize disputes over judicial selection with reference to the independence and accountability issues that animate them, and to isolate what we know …

Methods Of Judicial Selection And Their Impact On Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Right To Talk: Has Justice Antonin Scalia Compromised His Objectivity With A Public Remark?, Lloyd B. Snyder

Law Faculty Articles and Essays

With two assisted suicide cases scheduled for argument before the Supreme Court this term, Justice Antonin Scalia already has publicly staked out his position on the issue. While sentiments he expressed in 1990 in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, are well-known, Scalia told an audience at Catholic University late last year that it is "absolutely plain there is no [constitutional] right to die." Is it proper for sitting judges to make such statements? While no one would deny Scalia his First Amendment right to say what he pleases, that hardly quells concerns about the advisability …

Judging And Diversity: Justice Or Just Us?, Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

It is clear that the inevitable is upon us: as a society Canada is undergoing significant social change and law, as a social institution and mode of social interaction and regulation, cannot be immune to such changes. I want to suggest to you that these transitions are more than statistical - they are cultural and in that sense they will generate significant changes, indeed challenges, to our conventional ways of doing things. Change is of course somewhat unnerving, even disturbing or threatening, but I want to ask what sort of responses are available to us as we attempt to continue …

Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs

Law Faculty Articles and Essays

I would like to use the writings of Moses as a lens to examine some challenges in judging. Moses authored the first five books of the Old Testament known as the Pentateuch or books of the law--Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. He is probably best known for leading the Hebrew people out of bondage in Egypt and for receiving the Ten Commandments. As our discussion today will reveal, he may also be credited with authoring some significant principles with respect to the judicial function.

Rehnquist, Recusal, And Reform, Jeffrey W. Stempel

Scholarly Works

In September 1986, the Senate confirmed William H. Rehnquist as Chief Justice of the United States by a vote of 66 to 33, an unusually close vote for a successful Supreme Court nominee. Although Justice Rehnquist’s elevation from Associate to Chief Justice engendered substantial criticism because of his judicial philosophy, past political activity, and possible views on race relations, the most serious threat to his nomination arose from his decision fifteen years earlier to sit and cast the deciding vote in a Supreme Court case in which many questioned both his impartiality and his candor. That Justice Rehnquist's role in …