Law Commons^™

It Is Given Unto You To Judge, Sheila Mccleve

Vol. 2: Service & Integrity

This article is reprinted from the Clark Memorandum, spring 1992, 2–7.

Conflict Of Interest And Disqualification In The Federal Courts: Suggestions For Reform, Arthur D. Hellman

Testimony

Although federal judges do not run for election, over the last three decades the process of nomination and confirmation has become politicized to a disturbing degree. There is a real danger that the judges will come to be perceived not as dispassionate servants of the law but as political actors who pursue political or ideological agendas. One consequence of these developments is likely to be increased scrutiny of judges’ responses to motions to recuse. Here as in other aspects of the operations of the judiciary, “just trust us” is no longer sufficient.

Two provisions of Title 28 of the United …

The Law Clerk Proxy Wars: Secrecy, Accountability, And Ideology In The Supreme Court, Carolyn Shapiro

All Faculty Scholarship

This piece provides an in-depth review and analysis of two recent books about Supreme Court law clerks, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, by Todd C. Peppers, and Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David L. Weiden. In addition, the essay addresses a question so obvious that it is rarely asked – why is there so much curiosity about Supreme Court law clerks in the first place? In the essay, I analyze a widespread concern – and one discussed in …

Introduction (Excerpt) In Justice Bertha Wilson: One Woman's Difference, Kim Brooks

Articles, Book Chapters, & Popular Press

Bertha Wilson was the first woman to be appointed to Canada's Supreme Court in 1982. Her appointment capped off a career of firsts. She had been the first woman lawyer and partner at a prominent Toronto law firm and the first woman appointed to the Ontario Court of Appeal. Her career and passing in 2007 have provoked reflection on her contributions to Canadian society and caused many to reflect on the question she herself posed: what difference do women judges make? What follows is an excerpt from the introduction to the book. The chapters of the book explore a broad …

Judicial Selection In Rhode Island: Assessing The Experience With "Merit Selection", Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeals, Amy E. Sloan

All Faculty Scholarship

Informal en banc review is a procedural expedient that nine of the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to take actions normally reserved for the full court sitting en banc. The circuits that use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal en banc review is significant when compared with formal en banc review. Informal en banc review is more efficient than formal en banc review, but the efficiency benefits come at a price. Informal en …

Supreme Court Of The United States, October Term 2009 Preview, Update: October 26, 2009, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

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

All Faculty Scholarship

"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 …

First Annual Chief Justice Ronald M. George Distinguished Lecture: Access To Justice In Times Of Fiscal Crisis

Ronald M. George Distinguished Lecture Series

The Inaugural Ronald M. George Distinguished Lecture address delivered by The Honorable Ronald M. George, Chief Justice of the Supreme Court of California on the theme of "Access to Justice in Times of Fiscal Crisis."

Supreme Court Of The United States, October Term 2009 Preview, Georgetown University Law Center, Supreme Court Institute, Amanda M. Boote

Supreme Court Overviews

No abstract provided.

How (Not) To Think Like A Punisher, Alice Ristroph

Faculty Scholarship

No abstract provided.

Private Litigation In A Public Law Sphere:The Standard Of Review In Investor-State Arbitrations, William W. Burke-White, Andreas Von Staden

All Faculty Scholarship

International arbitration and, particularly, investor-state arbitration is rapidly shifting to include disputes of a public law nature. Yet, arbitral tribunals continue to apply standards of review derived from the private law origins of international arbitration, have not recognized the new public law context of these disputes, and have failed to develop a coherent jurisprudence with regard to the applicable standard for reviewing a state's public regulatory activities. This problematic approach is evidenced by a recent series of cases brought by foreign investors against Argentina challenging the economic recovery program launched after a massive financial collapse and has called into question …

Mothers And Sons: The Lloyd Schlup Story, Sean O'Brien

Faculty Works

This article tells the back story of the near-execution of Lloyd Schlup, condemned to die in Missouri for the 1984 murder of fellow Missouri State Penitentiary prisoner Arthur Dade, Jr. Mr. Schlup came within hours of execution before the Supreme Court granted certiorari on his case to decide whether a prisoner who is probably innocent can avail himself of the habeas corpus remedy. Mr. Schlup's and Mr. Dade's mothers played pivotal roles in the ultimate outcome of Schlup v. Delo, 513 U.S. 298 (1995). Dedicated to the memory of Nancy Slater.

The Closing Of The Judicial Mind, David F. Forte

Law Faculty Articles and Essays

Reviews of R.F. Nagel, Unrestrained: Judicial Excess and the Mind of the American Lawyer, Transaction Publishers (2008) and R. Posner, How Judges Think, Harvard University Press (2008)

Federal And State Judicial Selection In An Interest Group Perspective, Rafael Gely, Michael E. Solimine

Faculty Publications

The literature on judicial selection systems has given considerable attention to the role that politicians and their parties - through their legislative roles - have played in the adoption and operation of these judicial selection systems. Less attention, however, has been given to both the effect that interest groups, broadly defined, have in the creation and implementation of judicial selection systems and the effect that these systems have on the strategies adopted by interest groups to accomplish their goals. This Article seeks to fill this gap. Using the framework advanced by William M. Landes and Richard A. Posner in their …

Forward: Sandra Day O'Connor, Earl F. Nelson, And State Judicial Selection And Retention Systems, R. Lawrence Dessem

Faculty Publications

In difficult cases, in unpopular cases, in cases that may draw criticism from the executive branch of government, the legislature, the media, or the general populace, it is essential that judges be insulated from public pressure. However much we believe in the strength and integrity of the human spirit, we cannot expect judges to do justice without establishing an institutional framework that guarantees them that their next decision, however loathsome or unpopular, will not be their last.

Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman

Testimony

In August 2014, Federal District Judge Mark Fuller was arrested on a charge of misdemeanor battery after his wife called 911 from an Atlanta hotel room and told the operator, “He’s beating on me.” Judge Fuller has agreed to enter a pre-trial diversion program; if he completes the program, the criminal case against him will be dismissed. But Judge Fuller may face other consequences. The Acting Chief Judge of the Eleventh Circuit has initiated proceedings under the federal judicial misconduct statute. And some members of Congress and editorial writers have said that if Judge Fuller does not resign from the …

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

All Faculty Scholarship

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 …

The "Hidden Judiciary": An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.

Fathers, Foreskins, And Family Law, Dena S. Davis

Law Faculty Articles and Essays

In the United States, a custodial parent has the right and responsibility to make medical decisions for one's child. But does that right encompass consenting for a surgical procedure for which there is little or no medical justification? What if the noncustodial parent opposed the procedure? And when is a child old enough to make the decision for him- or herself? How should a physician respond when asked to perform a surgical procedure when the decision is enmeshed in family controversy? These and other questions are considered in Boldt, a recent family law case decided by the Supreme Court of …

Does Anyone Get Stopped At The Gate? An Empirical Assessment Of The Daubert Trilogy In The States, Eric Helland, Jonathan Klick

All Faculty Scholarship

The Supreme Court’s trilogy of evidence cases, Daubert, Joiner, and Kumho Tire appear to mark a significant departure in the way scientific and expert evidence is handled in federal court. By focusing on the underlying methods used to generate the experts’ conclusions, Daubert has the potential to impose a more rigorous standard on experts. Given this potential, some individuals have called for states to adopt the Daubert standards to purge “junk science” from state courts. However, there is relatively little empirical support for the notion that Daubert affects the quality of expert evidence. Using a large dataset of state court …

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Brief Of The Conference Of Chief Justices As Amicus Curiae In Support Of Neither Party, Caperton V. A.T. Massey Coal Co., No. 08-22 (U.S. Jan. 5, 2009), Roy A. Schotland

U.S. Supreme Court Briefs

No abstract provided.

Reflections On Recommendation 12, Naiomi Metallic

Reports & Public Policy Documents

This article focuses on the Marshall Commission Report’s specific recommendation for increased representation of racialized persons within the judiciary.

Augustus Noble Hand / Charles Merrill Hough, Roger J. Miner '56

Legal History

No abstract provided.

Regulating Discourtesy On The Bench: A Study In The Evolution Of Judicial Independence, Bruce Green, Rebecca Roiphe

Articles & Chapters

In this paper, we argue that the myth of the detached, rational judge, free from emotion runs the risk of undermining the quality of judging, obscuring the transparency of judicial decisions, and deterring the development of diverse judicial styles. We explore the history of the myth of the detached judge and how it made its way into rules of judicial conduct. By contextualizing this image of the judiciary, the article concludes that the rules of judicial conduct have come to embody an antiquated understanding of judicial independence and ought to be revised to reflect a more modern concept of the …

Case Interpretation, Shawn J. Bayern

Scholarly Publications

This Article develops an approach to constructing the meaning of prior court cases that is more helpful than formalistic, conventional distinctions between concepts like "holdings" and "dicta." Instead of trying to classify judicial announcements into fixed categories, courts should engage in a broader interpretive inquiry when confronting prior cases. Determining what a judicial opinion stands for requires determining the intent that motivated the opinion, as carefully understood in light of the factual and argumentative context that gave rise to it.

Under this view of precedent, binding common law arises in large part from principles explicated after considering facts. Viewing precedent …

Inaugural Lecture Invitation And Brochure, Golden Gate University School Of Law

Ronald M. George Distinguished Lecture Series

No abstract provided.

Here Comes The Judge! Gender Distortion On Tv Reality Court Shows, Taunya Lovell Banks

Faculty Scholarship

In the judicial world of television court shows women constitute a majority of the judges and where non-white women and men dominate. In real life most judges are white and male. This essay looks at the gender and racial composition and demeanor of these television reality judges. It asks whether women TV reality judges behave differently from their male counterparts and whether women’s increased visibility as judges on daytime reality court shows reinforces or diminishes traditional negative stereotypes about women, especially non-white women.