Law Commons^™

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 …

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.

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.

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 …

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

Publications and Research

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

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) …

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

Articles by Maurer Faculty

No abstract provided.

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 …

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; …

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 …

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 …

Judicial Mediation And Signaling, Edward J. Brunet

Nevada Law Journal

No abstract provided.

John Noonan On Marriage And The Family: Continuity And Change In Doctrine, William J. Wagner

Scholarly Articles

In support of its critique, this article first analyzes Judge Noonan's general methodological vantage and shows how he proceeds, within that vantage, to formulate general moral norms. Next, it compares Judge Noonan's work with trends in the reasoning of the United States Supreme Court between 1965 and the present to suggest that some of Noonan's assumptions about the longer-term consequences of his own methodology for stability and continuity in moral theology may be unwarranted. Finally, it argues that Noonan is not justified in assuming that adjudicative reasoning, without more, suffices for the formulation of general moral norms, or that transcendent …

Pay No Attention To That Man Behind The Robe: Judicial Elections, The First Amendment, And Judges As Politicians, Michael R. Dimino

Michael R Dimino

The Propriety Of Poetry In Judicial Opinions, Mary Kate Kearney

Mary Kate Kearney

No abstract provided.

State Laws And The Independent Judiciary: An Analysis Of The Effects Of The Seventeenth Amendment On The Number Of Supreme Court Cases Holding State Laws Unconstitutional, Donald J. Kochan

Donald J. Kochan

In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying …