Law Commons^™

A Reply--The Missing Portion, Pierre Schlag

Publications

No abstract provided.

The Elusive (But Worthwhile) Quest For A Diverse Bench In The New Millennium, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

The Politics Of Crime And The Threat To Judicial Independence, Jeannine Bell

Articles by Maurer Faculty

No abstract provided.

Why Judicial Elections Stink, Charles G. Geyh

Articles by Maurer Faculty

Those who are concerned about judicial independence and accountability in the United States quite rightly focus their attention on state judicial election campaigns. It is there that the most sustained and successful efforts to threaten judicial tenure in response to isolated, unpopular judicial decisions have occurred; and it is there that escalating campaign spending has created a public perception that judges are influenced by the contributions they receive. Attempts to address these problems have been undermined by four political realities that the author refers to as "the Axiom of 80 ": Eighty percent of the public favors electing their judges; …

Almost Pro Bono: Judicial Appointments Of Attorneys In Juvenile And Child Dependency Actions, Barbara Glesner Fines

Faculty Works

No abstract provided.

Reining In The American Litigator: The New Role Of American Judges, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Recalibrating Federal Judicial Independence Symposium: Perspectives On Judicial Independence: Accountability And Separation Of Power Issues, James J. Brudney

Faculty Scholarship

It is well settled that independent courts play a vital role in promoting rule-of-law and separation-of-powers norms. At the same time, judicial independence must be reconciled with other values that we also wish to recognize as foundational. Professor Brudney addresses two areas of controversy that are associated with the celebration of judicial autonomy in our legal culture. He first discusses the role of political and personal background factors in shaping judicial selection and influencing judicial outcomes. He explains why both the President and Congress have come to rely increasingly on such background factors when seeking to anticipate the broad contours …

The Norm Of Prior Judicial Experience And Its Consequences For Career Diversity On The U.S. Supreme Court, Lee Epstein, Jack Knight, Andrew D. Martin

Faculty Scholarship

No abstract provided.

The Political (Science) Context Of Judging, Lee Epstein, Jack Knight, Andrew D. Martin

Faculty Scholarship

No abstract provided.

Who Was William Marbury?, David F. Forte

Law Faculty Articles and Essays

Of all the disappointed office seekers in American history, only William Marbury has been so honored as to have his portrait hung in the chambers of the United States Supreme Court alongside that of James Madison. The two titular protagonists to the Marbury v. Madison dispute had no idea that their original contretemps would ever find its way to litigation, let alone eventual mythic significance as the foundation stone of judicial review.

What Do We Mean By "Judicial Independence"?, Stephen B. Burbank

All Faculty Scholarship

In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …

Remarks Of Seth P. Waxman At The Memorial Observance For Justice Byron R. White, United States Supreme Court, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

Members of the Court, members of the family, and friends of Justice White- Alone among today's speakers, I met Justice White only late in his life. Growing up in the law, my relationship with him was the one many kids today have with Michael Jordan - I wanted to be "like White" -like the kind of man he was. I still have that aspiration. Like Byron White, I served in the Department of Justice and was altered forever by that honorable institution. And - like Justice White, in my own lesser way, I strove within the walls of this institution …

Virtue Jurisprudence: A Virtue-Centered Theory Of Judging, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

"Virtue jurisprudence" is a normative and explanatory theory of law that utilizes the resources of virtue ethics to answer the central questions of legal theory. The main focus of the essay is the development of a virtue-centered theory of judging. The exposition of the theory begins with exploration of defects in judicial character such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgment. A virtue-centered account of justice is defended against the argument that theories of fairness are prior to theories of justice. The …

"Sir, Yes, Sir!": The Courts, Congress And Structural Injunctions, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This is a deeply confused book. Not that the authors' stance is unclear: They have seen federal courts in action, and they don't like what they see. Their subject is federal judicial supervision of state and local governments through injunctive decrees. The authors' position wouldn't be confused - or at least would be confused in a different way - if they dealt with injunctive decrees aimed at enforcing what the judges took to be constitutional requirements. In such cases there's at least something coherent that can be said about judges displacing democratic decision-making. Sandler and Schoenbrod, though, don't deal with …

Why Theories Of Law Have Little Or Nothing To Do With Judicial Restraint, Philip E. Soper

Articles

The question I explore here, stated in its broadest form, is this: What is the connection between theory and practice between academic claims about how judges should decide cases and the actual behavior of judges as revealed in the opinions they write? More particularly, do theories about the nature of law have any implications for the question whether a judge should adopt an "activist" or a "restrained" approach to deciding cases? As you might infer from my title, I defend here what I call "the skeptical thesis" in answer to both the general and particular questions. Judges pay little or …

Robert Anderson Van Wyck (1847-1918), Janet Butler Munch

Publications and Research

Robert Anderson Van Wyck (1847-1918). was a judge and NYC mayor.

Justice Lewis F. Powell, Jr. And The Counterrevolution In The Federal Securities Laws, Adam C. Pritchard

Articles

The confirmation of Lewis F. Powell, Jr., to the Supreme Court coincided with a dramatic shift in the Court's approach to securities law. This Article documents Powell's influence in changing the Court's direction in securities law. Powell's influence was the product of his extensive experience with the securities laws as a corporate lawyer, which gave him much greater familiarity with that body of law than his fellow Justices had. That experience also made him skeptical of civil liability, particularly class and derivative actions. Powell's skepticism led him to interpret the securities law in a consistently narrow fashion to reduce liability …

Constitutional Sunsetting?: Justice O'Connor's Closing Comments On Grutter, Vikram David Amar, Evan H. Caminker

Articles

Most Supreme Court watchers were unsurprised that Justice Sandra Day O'Connor's vote proved pivotal in resolving the University of Michigan affirmative action cases; indeed, Justice O'Connor has been in the majority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O'Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) …

An Incentives Approach To Patent Settlements: A Commentary On Hovenkamp, Janis & Lemley, Maureen A. O'Rourke

Faculty Scholarship

Professors Hovenkamp, Janis, and Lemley have attempted to clarify one of the most vexing issues facing antitrust and intellectual property law today: What analytical framework should antitrust authorities and courts use in considering whether patent settlement agreements in infringement cases violate the antitrust laws? The issue is complex because many ostensibly anticompetitive restraints in settlement agreements are perfectly legal if the underlying patent right is valid. Unfortunately, in some cases, the relevant patents are either invalid or not infringed. Thus, the antitrust analysis hinges on resolution of an intellectual property question.

Reforming Securities Class Actions From The Bench: Judging Fiduciaries And Fiduciary Judging, Lisa L. Casey

Journal Articles

The attorneys' fees awarded to plaintiffs’ counsel in securities fraud class actions have generated controversy for years. Critics have claimed that enormous fee awards come at the expense of defrauded investors and simply spur extortionate lawsuits against issuers and other potential deep pocket defendants. Commentators also have raised concerns that plaintiffs' class action lawyers manipulated class representatives, persons who had little incentive to monitor class counsel’s activities.

To address these concerns, Congress enacted the Private Securities Litigation Reform Act ("PSLRA"). Among other things, the statute sought to protect absent class members by giving control of the litigation to lead plaintiffs …

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

Proposed Legislation On Judicial Election Campaign Finance, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In light of the recent extraordinary rise in judicial campaign spending, illustrated in Ohio's 2000 judicial elections (and elsewhere, and in Ohio again in 2002), we must consider improving the Model Code of Judicial Conduct. The 1999 amendments to the Code addressed campaign finance, but did not address two major problems. The first one is the absence of limits on aggregate contributions from law firms; only Texas has such limits. This gap allows large contributions from law firms to go to judges presiding in cases in which those firms participate, circumventing the recusal and disqualification triggers. The second problem is …

The Invention Of Health Law, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

By default, the courts are inventing health law. The law governing the American health system arises from an unruly mix of statutes, regulations, and judge-crafted doctrines conceived, in the main, without medical care in mind. Courts are ill-equipped to put order to this chaos, and until recently they have been disinclined to try. But political gridlock and popular ire over managed care have pushed them into the breach, and the Supreme Court has become a proactive health policy player. How might judges make sense of health law's disparate doctrinal strands? Scholars from diverse ideological starting points have converged toward a …

Augustus Van Wyck (1850-1922), Janet Butler Munch

Publications and Research

Augustus Van Wyck (1850-1922) was a judge and NY gubernatorial candidate.