Law Commons^™

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 …

Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark

University of San Diego Public Law and Legal Theory Research Paper Series

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …

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 …

Generic Constitutional Law, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that …

The Jurisprudence Of Enron: Professionalism As Interpretation, W. Bradley Wendel

Cornell Law Faculty Publications

Jurisprudence can seem like a formidably esoteric field, with conceptual arguments carried on at a high level of abstraction, seemingly remote from the concerns of practicing lawyers. In fact, it is impossible to ignore jurisprudence when thinking about the role of lawyers in the wave of financial accounting scandals exemplified by the collapse of Enron. The Enron case is not about ethics so much as it is about the interpretation and application of a complex scheme of legal norms to innovative business transactions. The lawyers believed they were taking a legitimate, albeit aggressive interpretive attitude toward the law, by structuring …

The Jurisprudence Of Enron: Professionalism As Interpretation, W. Bradley Wendel

Cornell Law Faculty Working Papers

Jurisprudence can seem like a formidably esoteric field, with conceptual arguments carried on at a high level of abstraction, seemingly remote from the concerns of practicing lawyers. In fact, it is impossible to ignore jurisprudence when thinking about the role of lawyers in the wave of financial accounting scandals exemplified by the collapse of Enron. The Enron case is not about ethics so much as it is about the interpretation and application of a complex scheme of legal norms to innovative business transactions. The lawyers believed they were taking a legitimate, albeit aggressive interpretive attitude toward the law, by structuring …

A Government Of Laws And Not Men: Prohibiting Non-Precedential Opinions By Statute Or Procedural Rule, Amy E. Sloan

All Faculty Scholarship

Non-precedential judicial opinions issued by the federal appellate courts have generated significant controversy. Given that the federal appellate courts are unlikely to abandon the practice of issuing non-precedential opinions on their own, what other options exist for prohibiting the practice? This article discusses the constitutionality of a procedural rule or statute prohibiting the federal appellate courts from prospectively designating selected opinions as non-precedential. It explains how the rules governing non-precedential opinions allow federal appellate courts to "opt out" of their own rules of precedent. It then examines the rulemaking process, showing how the Federal Rules of Appellate Procedure are promulgated …

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 …

Court Review: Volume 41, Issue 2 - Table Of Contents

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 41, Issue 2 - Letters

Court Review: The Journal of the American Judges Association

A Judiciary as Good as Its Promise

The Unchanging Role of the Judge

Court Review: Volume 41, Issue 2 - Cover

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 41, Issue 2 - Complete Issue

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 41, Issue 2 - A Judiciary That Is As Good As Its Promise: The Best Strategy For Preserving Judicial Independence, Kevin S. Burke

Court Review: The Journal of the American Judges Association

Nearly 100 years ago, Roscoe Pound gave his famous speech entitled “The Causes of Popular Dissatisfaction with the Administration of Justice.” Pound spoke of three things that contributed to the dissatisfaction he perceived during his time: first, a belief by the people that the administration of justice is easy; second, the historical tension between the branches of government; and, finally, what he described as the sporting theory of justice. While Pound’s focus was on why the public was dissatisfied, it is axiomatic that the causes of the popular dissatisfaction with the administration of justice are the fuel for present threats …

Court Review: Volume 41, Issue 2 - Speak To Values: How To Promote The Courts And Blunt Attacks On Judiciary, John Russonello

Court Review: The Journal of the American Judges Association

This article will outline a number of ideas for communications that could help to promote stronger public support for the courts when they do come under attack. The ideas take into consideration the desires, motivations, and values of the American public that have been learned from years of conducting national and statewide public opinion research on the judicial system for clients such as the ACLU, Justice at Stake Project, the Youth Law Center, and the Open Society Institute, among others. Here are some of the observations on American public opinion that lead to suggestions for court advocates.

Court Review: Volume 41, Issue 2 - Judicial Independence In The Municipal Court: Preliminary Observations From Missouri, Lawrence G. Myers

Court Review: The Journal of the American Judges Association

Preliminary results from a recent survey of the municipal courts in Missouri show significant structural and attitudinal barriers to judicial independence. The results are preliminary in light of the deadline for this issue: only a relatively short time was available to analyze the responses before submitting this article. Even the early returns suggest real problems, however.

Court Review: Volume 41, Issue 2 - The Challenge Of Funding State Courts In Tough Fiscal Times, Michael L. Buenger

Court Review: The Journal of the American Judges Association

It has been described as the worst state fiscal crisis since the end of World War II, with officials from across the country likening it to a “perfect storm,” “the Incredible Hulk of budget deficits,” and a “problem of historic proportions.” Beginning in 2001, almost every state experienced a deep fiscal crisis that placed funding of critical services in jeopardy and rendered many previously hallowed programs subject to draconian cuts, if not outright elimination. The fiscal crisis was particularly traumatic for court systems receiving all or a significant portion of their funding directly from state governments.

In response to the …

Court Review: Volume 41, Issue 2 - The Tyranny Of The “Or” Is The Threat To Judicial Independence, Not Problem-Solving Courts, Kevin S. Burke

Court Review: The Journal of the American Judges Association

If one values freedom, tolerance, and civil liberties, we live at a time when our planet is a dangerous place. Even if one accepts the notion that mankind is composed of decent and good human beings, not all societies place a premium on the values of freedom, tolerance, and civil liberties for all. While there are many factors that promote justice, judicial independence is the cornerstone to freedom and liberty. Now more than at other times in history, a strong, effective, and independent judiciary is imperative. Now more than ever, judges need to realize that maintaining an impartial independent judiciary …

Court Review: Volume 41, Issue 2 - Some Thoughts On The Problems Of Judicial Elections, Jeffrey Rosinek

Court Review: The Journal of the American Judges Association

Election season is within sight again, and with it come the obligatory attacks on the judiciary. Some call it simply campaigning or electioneering, while others believe it is more serious and a form of “judge bashing.” Whatever name the problems are given, the entire election process may have a marked effect on the independence of our judiciary, as well as the ethics of judges and judicial candidates. And in the end, because these problems affect the public’s faith in the judicial system, they must be addressed.

Court Review: Volume 41, Issue 2 - Resource Materials On Judicial Independence, Roy Schotland

Court Review: The Journal of the American Judges Association

In addition to the articles found in this issue of Court Review, which present the considered views of the authors on various subjects, we also seek to stimulate the thinking of the reader regarding judicial independence. For those attending the annual conference of the American Judges Association this year, this will involve review of the materials in this issue and interchange with authors of the articles and a number of others who have given substantial thought to the topic—as well as interchange with other judges in attendance.

For those whose involvement with the National Forum on Judicial Independence will come …

Court Review: Volume 41, Issue 2 - Editor's Note

Court Review: The Journal of the American Judges Association

This issue is focused on judicial independence. On the next page, Mike McAdam, the president of the American Judges Association, explains how it developed that a National Forum on Judicial Independence would be a part of this year’s AJA annual conference. We’re pleased to present this special issue of Court Review, which is intended to stimulate discussion at the conference and to bring the members who couldn’t attend into the process.

Court Review: Volume 41, Issue 2 - Recent Civil Decisions Of The U.S. Supreme Court: The 2003-2004 Term, Charles H. Whitebread

Court Review: The Journal of the American Judges Association

The civil cases decided by the United States Supreme Court during its last term were headlined by its decisions reasserting the rule of law in the context of detainees in the war on terrorism. In addition, the Court handed down a number of decisions on civil rights, the First Amendment, federalism, presidential power, and civil statutory interpretation. We review those cases here.

Court Review: Volume 41, Issue 2 - The Resource Page

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 41, Issue 2 - President’S Column, Michael R. Mcadam

Court Review: The Journal of the American Judges Association

This special edition of Court Review will be devoted to the critical issue of judicial independence. The articles contained here were solicited as part of the National Forum on Judicial Independence, which will take place at the AJA’s 44th annual educational conference in San Francisco. For those attending the conference, these papers will be an integral element of the Forum and will be discussed and debated in San Francisco by the authors and conference attendees. For those who can’t attend the Forum, these articles present excellent analysis by respected judicial professionals about various aspects of the concept of judicial independence.

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady

Working Paper Series

Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …

Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas

All Faculty Scholarship

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The …

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …

Court Review: Volume 41, Issue 1 - The Resource Page

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 41, Issue 1 - Jury Trial Innovations: Charting A Rising Tide, Gregory A. Mize, Christopher J. Connelly

Court Review: The Journal of the American Judges Association

Recently the United States Supreme Court has instructed us that any contested fact, other than a prior conviction, that increases the penalty for a crime must be determined by a jury. In addition, the highest court for the Commonwealth of Virginia has determined that, in capital cases, a claimed defense of mental retardation raises a jury question. Whether it is a case prompted by these high court rulings, one of the many accounting fraud prosecutions in New York, or scientific evidence presented in a products liability action in the Midwest, the American jury is repeatedly being called upon to make …

Court Review: Volume 41, Issue 1 - Complete Issue

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 41, Issue 1 - Table Of Contents

Court Review: The Journal of the American Judges Association

No abstract provided.