Law Commons^™

Judicial Laterals, Jonathan R. Nash

Vanderbilt Law Review

Lawyers already in practice at one law firm often move to another law firm. This type of move is referred to as "lateraling." A lawyer might choose to lateral for many of the reasons we often think people in general take new positions: better job security, better pay, better benefits, greater prestige, more interesting work, better future job prospects, more leisure time, and/or more predictable hours.' In contrast to lawyers in private practice, we do not commonly associate judges with lateraling. But the fact is that, just as some judges are reassigned or promoted within a judicial system (for example, …

Judicial Politics And Decisionmaking: A New Approach, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Vanderbilt Law Review

In twenty-five different experiments conducted on over 2,200 judges, we assessed whether judges' political ideology influences their resolution of hypothetical cases. Generally, we found that the political ideology of the judge matters, but only very little. Across a range of bankruptcy, criminal, and civil cases, we found that the aggregate effect of political ideology is either nonexistent or amounts to roughly one quarter of a standard deviation. Overall, the results of our experiments suggest that judges are not "politicians in robes."

The Ideological Consequences Of Selection: A Nationwide Study Of The Methods Of Selecting Judges, Brian T. Fitzpatrick

Vanderbilt Law Review

How best to select judges has been the subject of great debate ever since the founding of the United States. Over the course of American history, four basic methods of selection have been tried (with some variations among them): appointment by elected officials, partisan election, nonpartisan election, and selection by a technocratic commission.' The first three methods will be familiar to most readers: gubernatorial or legislative appointment of judges, contested elections with party affiliation on the ballot, and contested elections without party affiliation on the ballot. But readers may be less familiar with the last method: many states today use …

Corpus Linguistics: Misfire Or More Ammo For The Ordinary - Meaning Canon?, John D. Ramer

Michigan Law Review

Scholars and judges have heralded corpus linguistics—the study of language through collections of spoken or written texts—as a novel tool for statutory interpretation that will help provide an answer in the occasionally ambiguous search for “ordinary meaning” using dictionaries. In the spring of 2016, the Michigan Supreme Court became the first to use corpus linguistics in a majority opinion. The dissent also used it, however, and the two opinions reached different conclusions. In the first true test for corpus linguistics, the answer seemed to be just as ambiguous as before.

This result calls into question the utility of corpus linguistics. …

Moral Issues And The Virtuous Judge: Reflections On The Nomination And Confirmation Of Supreme Court Justices, Robert J. Araujo, S.J.

The Catholic Lawyer

No abstract provided.

Guideline Amendments Dramatically Change The Structure Of Organizational Fines, Paul E. Fiorelli

The Catholic Lawyer

No abstract provided.

The Judge And His Clerks, Barbara F. Riegelhaupt, Kaighn Smith Jr., J. Peter Byrne

Maine Law Review

In his memoir, Life and Times in the Three Branches, Judge Coffin recounts the history of the institution of the law clerk and observes, “I was the first such creature Maine had seen.” He served as a clerk from April 1947 to June 1949 for United States District Court Judge John D. Clifford, working in the same chambers that he would later inhabit as a judge. Over the course of his more than four decades on the Court of Appeals, Judge Coffin would have sixty-eight clerks of his own. Those of us lucky enough to be in that family of …

The Speeches Of Frank M. Coffin: A Sideline To Judging, Daniel E. Wathen, Barbara Riegelhaupt

Maine Law Review

The Authors of this Article are engaged in a separate project to publish the full collection of law-related speeches delivered by Judge Coffin during his tenure on the bench. That collection in its entirety consists of more than 125 speeches, and it is a treasure trove of thoughts on the judiciary as an institution, the law, judging, the legal profession, legal education, and legal luminaries past and present. The speeches are also worthy of study purely as examples of communication, advocacy, speechcraft, composition, humor, and whimsy. Within the confines of this Article, the modest goal is to provide samples of …

In His Own Words: Judge Coffin And Workability, William C. Kelly Jr.

Maine Law Review

Early in his judicial career, Judge Coffin proffered the concept of “workability” as one of the core factors in judging. Justice and Workability: Un Essai, his first published reflection on this idea, appeared in the Suffolk University Law Review in 1971. To frame the discussion, he started with a formal definition: “[T]he extent to which a rule protecting a right, enforcing a duty, or setting a standard of conduct—which is consistent with and in the interests of social justice—can be pronounced with reasonable expectation of effective observance without impairing the essential functioning of those to whom the rule applies.” This …

The Ways Of A Judge And On Appeal, Kermit V. Lipez

Maine Law Review

What do you do when your judicial hero, the author of two important books on appellate judging, was for many years your neighbor, friend, colleague, and mentor? You revel in your good fortune, and you share your admiration for his books. Judge Coffin’s long involvement in the political world contributed significantly to a primary focus of his two books on appellate judging, The Ways of a Judge, published in 1980, and On Appeal, published in 1994. As a political organizer, a candidate for public office, a Congressman, and an administrator in a federal agency, Judge Coffin understood his accountability to …

Coffin's Court: A Colleague's View, Levin Campbell

Maine Law Review

These reminiscences focus on the eleven years, from 1972 to 1983, that Frank M. Coffin of Maine was the Chief Judge of the United States Court of Appeals for the First Circuit. While Coffin’s judicial career extended over more than forty years, I chose this period because it was a time when his influence over the court’s work was at its peak, as well as because he himself later singled it out as a “judicial Garden of Eden,” during which the First Circuit enjoyed its status as the last remaining three-judge federal court of appeals in the nation.

Frank Morey Coffin's Political Years: Prelude To A Judgeship, Donald E. Nicoll

Maine Law Review

Each day when I go to my study, I see a wood block print of two owls gazing at me with unblinking eyes. Ever alert, they remind me of the artist, who in his neat, fine hand, titled the print “Deux Hiboux,” inscribed it to the recipients and signed it simply “FMC 8-2-87.” In addition to his talents as an artist and friend in all seasons, FMC was a remarkable public servant in all three branches of the federal government and, with his friend and colleague Edmund S. Muskie, a creative political reformer for the State of Maine. Throughout his …

Frank Coffin And Enlightened Governance, Robert A. Katzmann

Maine Law Review

I have often thought that Judge Frank M. Coffin is one of a handful of statesmen of recent times I could easily imagine in Philadelphia in the summer of 1787 (indeed, as a central figure in a David McCollough biography). If he had been, as competing factions struggled to find solutions to thorny issues, Madison’s Notes would inevitably and often have recorded: “With negotiations on the verge of collapse, all eyes turned to Frank Coffin, who found not only the key to compromise, but also the better way.”

The Legacy Of Judge Frank M. Coffin, Peter R. Pitegoff

Maine Law Review

Judge Coffin had adopted the University of Maine School of Law as if it were his own. He was a committed friend to the Law School and served on the advisory Board of Visitors for almost two decades. Like so many others, I felt his keen personal commitment as well, with his periodic calls and visits, his steady counsel and encouragement. Before arriving in Maine, I had known of Judge Coffin. Little did I anticipate that he would so enrich my experience as Dean at Maine Law. He remains a role model to so many of our graduates and leaves …

Reforming Recusal Rules: Reassessing The Presumption Of Judicial Impartiality In Light Of The Realities Of Judging And Changing The Substance Of Disqualification Standards To Eliminate Cognitive Errors, Melinda A. Marbes

St. Mary's Journal on Legal Malpractice & Ethics

In recent years, high profile disqualification disputes have caught the attention of the public. In each instance there has been an outcry when a presiding jurist was asked to recuse but declined. Unfortunately, even if the jurist explains his refusal to recuse, the reasons given often are unsatisfying and do little to quell suspicions of bias. Instead, litigants, the press, and the public question whether the jurist actually is unbiased and doubt the impartiality of the judiciary as a whole. This negative reaction to refusals to recuse is caused, at least in part, by politically charged circumstances that cause further …

The Rank-Order Method For Appellate Subset Selection, Michael J. Hasday

Notre Dame Law Review Reflection

This Essay proceeds as follows: Part I discusses the “fatal flaws” of random assignment and direct selection: outlier panels and judicial gaming, respectively. Part II introduces the rank-order method and explains how this method is superior to either random assignment or direct selection. Part III provides detailed examples of how the rank-order method works in practice. Part IV concludes.

Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita

St. Mary's Journal on Legal Malpractice & Ethics

The use of electronic social communication has grown at a phenomenal rate. Facebook, the most popular social networking website, has over 1,968,000,000 users—a number that has exponentially grown since its inception in 2004. The number of judges accessing and using electronic social media (ESM) has also increased. However, unlike the general population, judges must consider constitutional, ethical, technical, and evidentiary implications when they use and access ESM. The First Amendment forbids “abridging the freedom of speech” and protects the expression of personal ideas, positions, and views. However, the American Bar Association’s Model Code of Judicial Conduct and the Texas Code …

Disrespectful Dissent: Justice Scalia's Regrettable Legacy Of Incivility, J. Lyn Entrikin

The Journal of Appellate Practice and Process

No abstract provided.

Bringing Compassion Into The Province Of Judging: Justice Blackmun And The Outsiders, Pamela S. Karlan

Dickinson Law Review (2017-Present)

No abstract provided.

The Phenomenology Of Medico-Legal Causation, Nicholas Hooper

Dalhousie Law Journal

The language of counterfactual causation employed from the bench obscures the analytical vacuity of the "butfor" test. This paper takes issue with the consistent recourse to "common sense" as a methodological tool for determining the deeply complex issue of causality. Despite manifestly empty gestures to, e.g., robust pragmatism, the current approach imposes the dominant values of the judiciary in a manner that perpetuates the current distribution of power. Whatever the merits of counterfactual inquiry, its legal iteration requires judges to construct a hypothetical narrative about "how things generally happen." This, in turn, impels a uniquely comprehensive brand ofjudicialcreativity. The results …

Adjudication In The Age Of Disagreement, John Fabian Witt

Fordham Law Review

In the time I have here with you today I would like to offer the beginnings of an answer. It does not lie in the distance between the court’s traditions and Manton’s conduct. That would be too easy. At base, I think the answer lies in something far more subtle and interesting: the relationship between acentral tradition of the Second Circuit and one of the great questions we face as a society today. That question is how to deal with disagreement.

Affirming Firm Sanctions: The Authority To Sanction Law Firms Under 28 U.S.C. § 1927, Vincent J. Margiotta

Fordham Law Review

A circuit split exists as to whether 28 U.S.C. § 1927 allows for an award of sanctions against nonattorneys or nonrepresentatives. Five federal courts of appeals—the Second, Third, Eighth, Eleventh, and the District of Columbia Circuits—hold that, to further the purpose of 28 U.S.C. § 1927, courts have the authority to sanction a law firm for the conduct of its attorneys, in addition to the authority to sanction individual officers of the court. The Sixth, Seventh, and Ninth Circuits disagree, concluding that the statute allows federal courts to sanction only individuals—“attorney[s] or other person[s] admitted to conduct cases in any …

Introduction To Section I: In The Beginning . . . Volume 1 And What It Means To Be A Lawyer, Kristina J. Kim

Dickinson Law Review (2017-Present)

No abstract provided.

Baccalaureate Address Delivered By Charles B. Lore, Ll.D., Chief Justice Of The Delaware Supreme Court, Charles B. Lore

Dickinson Law Review (2017-Present)

No abstract provided.

Rat Race: Insider Advice On Landing Judicial Clerkships, Ruggero J. Aldisert, Ryan C. Kirkpatrick, James R. Stevens Iii

Dickinson Law Review (2017-Present)

For many, the judicial clerkship application process is, to quote Sir Winston Churchill, a “riddle wrapped in a mystery inside an enigma.” It is a frenzied “Pamplona-like” atmosphere that begins on Labor Day +1 and continues unabated for several weeks. The initial week is the make or break point in the application review process because it is then that the judge starts to read each application and makes a “yes” or “no” evaluation. If his vote is a “no,” then no further action is taken. If it is a “yes,” the application passes to the law clerks, who then begin …

Address Of Justice Edward J. Fox Of The Supreme Court Of Pennsylvania, Edward J. Fox

Dickinson Law Review (2017-Present)

No abstract provided.

Introduction To Section Vi: Understanding And Improving Our Judicial System, Hanna Borsilli

Dickinson Law Review (2017-Present)

No abstract provided.

Justice Blackmun And Preclusion In The State-Federal Context, Karen Nelson Moore

Dickinson Law Review (2017-Present)

No abstract provided.

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …

Our Courts, Ourselves: How The Alternative Dispute Resolution Movement Is Re-Shaping Our Legal System, Deborah R. Hensler

Dickinson Law Review (2017-Present)

Twenty-seven years ago, Professor Frank Sander urged American lawyers and judges to re-imagine the civil courts as a collection of dispute resolution procedures tailored to fit the variety of disputes that parties bring to the justice system. Professor Sander’s vision of the justice system encompassed traditional litigation leading to trial, but his speech at the 1976 Roscoe Pound Conference drew attention to alternatives to traditional dispute resolution that he argued would better serve disputants and society than traditional adversarial processes.

Today, interest in dispute resolution is high. This interest cuts across many domains, ranging from the family, to the schoolyard, …