Law Commons^™

Families Matter: Recommendations To Improve Outcomes For Children And Families In Court, Barbara A. Babb, Gloria Danziger

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The Families Matter initiative was designed as a major, multi-year undertaking to develop legal practice methods and approaches to reduce the destructive consequences of the family legal process. The initiative was intended to respond to the need for deep and meaningful reform of the family law process.

Convened in June 2010 by the University of Baltimore School of Law Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC), the Families Matter Symposium brought together an interdisciplinary group of family law experts for two days at the University of Baltimore to identify problems regarding the practice of family …

Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman

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This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups …

Beyond Saints And Sinners: Discretion And The Need For New Narratives In The U.S. Immigration System, Elizabeth Keyes

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Beyond Saints and Sinners examines the forces affecting the exercise of discretion in American immigration courts, and argues that in this present age of immigration anxiety, the same facts that place an individual in deportation proceedings may constitute the reasons a judge will, relying on discretion, deny them relief for which they are otherwise eligible. The article explores the polarized narratives told about "good" and "bad" immigrants, the exceptionally difficult task of adjudicating in overburdened immigration courts, and the ways in which these polarized narratives interact with psychological short-cuts, or heuristics, that affect judicial exercises of discretion. After engaging in …

Significant Statistics: The Unwitting Policy Making Of Mathematically Ignorant Judges, Michael I. Meyerson, William Meyerson

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This article will explore several areas in which judges, hampered by their mathematical ignorance, have permitted numerical analysis to subvert the goals of our legal system. In Part II, I will examine the perversion of the presumption of innocence in paternity cases, where courts make the counter-factual assumption that regardless of the evidence, prior to DNA testing, a suspect has a 50/50 chance of being the father. In Part III, I will explore the unnecessary injection of race into trials involving the statistics of DNA matching, even when race is entirely irrelevant to the particular case. Next, in Part IV, …

Imagining Judges That Apply Law: How They Might Do It, James Maxeiner

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"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law.

American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts …

Obama's Second Chance To Make History, José F. Anderson

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This short article provides a view of the circumstances and issues surrounding President Obama's nomination of federal circuit Judge Sonia Sotomayor to the U.S. Supreme Court.

With President Barack Obama's nomination of federal circuit Judge Sonia Sotomayor to the Supreme Court, his judicial appointment team has been presented with an early introduction to what has become one the most challenging areas of presidential governance over the last several decades.

The nominations to the nation's highest court have generated controversies going back to Ronald Reagan's failed attempt to elevate the highly controversial federal Judge Robert Bork to the court in the …

Child Custody Evaluations: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, J. Mason Weeda, William A. Mack

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This review of custody evaluation literature encompasses a number of perspectives gleaned from the following: practitioners who perform the evaluations; the professional organizations that recognize the necessity to establish performance standards for practitioners; and the judges who depend on the findings and recommendations in the evaluations to assist with difficult custody decisions.

General agreement exists among practitioners about the components of a comprehensive evaluation (interviews of adults responsible for child care, interviews of children and their preferences, life histories, observations, psychological testing, document review, and collateral source data), though little consensus exists about the details of performance concerning a given …

If You Can't Beat 'Em, Join 'Em: A Pragmatic Approach To Nonprecedential Opinions In The Federal Appellate Courts, Amy E. Sloan

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For many years, judges and academics have debated the pros and cons of non-precedential judicial opinions in the federal appellate courts. Although the utility, necessity, and advisability of non-precedential opinions remain interesting issues to debate, at this point they are somewhat beside the point. Academics have lost the debate on non-precedential opinions. Judges control whether non-precedential opinions are permissible, and judges are not going to give them up anytime soon.

So, as the saying goes, if you can't beat 'em, join 'em. Rather than continue to debate the merits of non-precedential opinions, the better course of action is to find …

Separate And Obedient: The Judicial Qualification Missing From The Job Description, J. Amy Dillard

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The national debate about the role of judges, their qualifications and ideologies consumes news coverage, as evidenced by the recent appointment hearings of Chief Justice John Roberts and Justice Samuel Alito and the aborted nomination of Harriet Miers. The American Bar Association is in the process of re-evaluating and updating its Model Code of Judicial Conduct. The poverty of the quality of the debate, with legislators on both sides of the aisle discussing a few political issues and largely ignoring issues of ethics and temperament, leaves the public with little helpful information about whether judicial candidates will abide by the …

Objecting To Court Ordered Mediation, Jane C. Murphy

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Maryland judges have wide discretion to refer parties to mediate a variety of civil matters. Title 17 of the Maryland Rules, enacted in 1998, governs mediation of civil cases in the circuit courts. These rules are supplemented by Maryland Rule 9-205, which addresses mediation of child custody and visitation disputes. Although these rules define mediation and address mediator qualifications in some detail, they say very little about either a party's right to object to mediation or the court's authority to compel participation in mediation.

Given that the mediation rules are relatively new and mediation orders would generally be considered interlocutory, …

The Judiciary In The United States: A Search For Fairness, Independence And Competence, Stephen J. Shapiro

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Alexander Hamilton referred to the judiciary as “the least dangerous branch” because it could neither make nor enforce the law without help from the other two branches of government. In the years since then, however, courts and judges in the United States have assumed a much more prominent role in society. American judges preside over criminal trials and sentence those convicted, decide all kinds of civil disputes, both large and small, and make important decisions involving families, such as child custody. They have also become the primary guarantors of the civil and constitutional rights of American citizens.

The case of …

Assessing The New Judicial Minimalism, Christopher J. Peters

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In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …

Managed Care And Managed Sentencing — A Tale Of Two Systems, Ronald Weich

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The daily injustices mount. The front line professionals who administer the system cry out for more discretion to depart from the rigid rules that bind them, Congress finally hears their call, and is poised to enact sweeping reforms.

Are improvements in federal sentencing law on the way? Probably not in the near future. But the new Congress will surely take up proposals to regulate the managed health care industry, and the impending debate over a proposed "Patients' Bill of Rights" law offers important lessons for federal sentencing policy.

At first blush, sentencing reform and health care reform have about as …