Law Commons^™

Trial By Preview, Bert I. Huang

Faculty Scholarship

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience-that is, the judge or the jury who will be the finder …

Modern Odysseus Or Classic Fraud - Fourteen Years In Prison For Civil Contempt Without A Jury Trial, Judicial Power Without Limitation, And An Examination Of The Failure Of Due Process, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Legal Ethics For The Millennials Avoiding The Compromise Of Integrity, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Faculty Scholarship

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …

Evaluating And Improving The Mdl Process, Francis Mcgovern, John G. Heyburn

Faculty Scholarship

No abstract provided.

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

Sonia Sotomayor And The Construction Of Merit, Guy-Uriel Charles, Daniel L. Chen, Mitu Gulati

Faculty Scholarship

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such …

Share Transfer Restrictions In Close Corporations As Mechanisms For Intelligible Corporate Outcomes, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

White Male Heterosexist Norms In The Confirmation Process, Theresa M. Beiner

Faculty Scholarship

Justice Sonia Sotomayor's confirmation hearing took a controversial turn when commentators picked up on a reference in the New York Times to a portion of a speech she gave in 2001. In that speech, then Judge Sotomayor opined that, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." That statement, along with her participation in the per curiam decision in Ricci v. DeStefano, caused a minor storm during her confirmation. More recently, former Harvard Dean and former …

Remarks By Professor Larry S. Gibson On The Occasion Of The Investiture Of Andre M. Davis, Larry S. Gibson

Faculty Scholarship

Remarks by Professor Larry S. Gibson on the Occasion of the Investiture of Andre M. Davis as an Associate Judge of the U.S. Court of Appeals for the Fourth Circuit, April 30, 2010.

Remarks On The Occasion Of The Renaming Of The Robert M. Bell Center For Civil Rights In Education At Morgan State University, Larry S. Gibson

Faculty Scholarship

Remarks presented at the April 28th event honoring Maryland Chief Judge Robert M. Bell and the naming of the Morgan State University’s Center for Civil Rights in Education for the Judge.

A Public Calling: Lessons From The Lives Of Judges Of Color In Pennsylvania, Phoebe A. Haddon

Faculty Scholarship

This paper discusses how Judge Clifford Scott Green, Judge William Marutani, and Judge Juanita Kidd Stout spent their lives as leaders in the law to illustrate the ideal of a "public calling."

All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …

A Coase Theorem For Constitutional Theory, Neil S. Siegel

Faculty Scholarship

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim—that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion—is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan to do so again. …

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

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.

Are Judges Overpaid?: A Skeptical Response To The Judicial Salary Debate, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

The public debate over the need to raise judicial salaries has been one-sided. Sentiment appears to be that judges are underpaid. But neither theory nor evidence provides much support for this view. The primary argument being made in favor of a pay increase is that it will raise the quality of judging. Theory suggests that increasing judicial salaries will improve judicial performance only if judges can be sanctioned for performing inadequately or if the appointments process reliably screens out low-ability candidates. However, federal judges and many state judges cannot be sanctioned, and the reliability of screening processes is open to …

Gender, Race, And Intersectionality On The Federal Appellate Bench., Todd Collins, Laura Moyer

Faculty Scholarship

While theoretical justifications predict that a judge’s gender and race may influence judicial decisions, empirical support for these arguments has been mixed. However, recent increases in judicial diversity necessitate a reexamination of these earlier studies. Rather than examining individual judges on a single characteristic, such as gender or race alone, this research note argues that the intersection of individual characteristics may provide an alternative approach for evaluating the effects of diversity on the federal appellate bench. The results of cohort models examining the joint effects of race and gender suggest that minority female judges are more likely to support criminal …

Judging Measures, Mitu Gulati, David F. Levi

Faculty Scholarship

The question of how to optimally design judicial institutions is one of central importance to the scholarship focused on courts. Basic questions such as whether there should be mandatory retirement for judges, whether judges should be expected to write their own opinions and whether greater racial or gender diversity on the courts improves decision making are optimal design questions. Given the vast variation in the types of judicial system designs used around the world (and even within the United States), it should be possible to conduct a comparative analysis of the relative efficacy of the different designs. These comparisons cannot …

Romancing The Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts, created at the end of the 20th century, make court-based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court-based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem-solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through …

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Diversity On The Bench And The Quest For Justice For All, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

China's Network Justice, Benjamin L. Liebman, Tim Wu

Faculty Scholarship

China's Internet revolution has set off a furious debate in the West. Optimists from Thomas Friedman to Bill Clinton have predicted the crumbling of the Chinese Party-state ("Party-state"), while pessimists suggest even greater state control. But a far less discussed and researched subject is the effect of China's Internet revolution on its domestic institutions. This Article, the product of extensive interviews across China, asks a new and different question. What has China's Internet revolution meant for its legal system? What does cheaper, if not free, speech mean for Chinese judges?

The broader goal of this Article is to better understand …

Representative Government, Representative Court? The Supreme Court As A Representative Body, Angela Onwuachi-Willig

Faculty Scholarship

In this Symposium Essay, I propose, as a thinking matter, that we expand the number of Supreme Court justices to increase the representation of various demographic groups on the Court. In Part I, I advance the argument that the Court should be regarded as a demographically representative body of the citizens of the United States, and in Part II, I argue that the Court should be enlarged to ensure diverse representation of all voices on the most powerful judicial body of our nation.

The Trade Winds Of Judicial Activism: An Introduction To The 2004-2005 Goodwin Seminar Articles By Dennis Morrison, Q.C., And The Honourable Mia Amor Mottley, Q.C., M.P.,, Jane E. Cross

Faculty Scholarship

In Fall 2004, Nova Southeastern University Shepard Broad Law Center hosted a Goodwin Seminar series entitled Trade Winds in Caribbean Law: Evolution of Legal Norms and the Quest for Independent Justice. Since the conclusion of the Goodwin Seminar in November 2004, there have been two significant developments in the Commonwealth Caribbean. First, the Caribbean Court of Justice (CCJ) was inaugurated on April 16, 2005 in Port of Spain, Trinidad. Second, the CARICOM Single Market and Economy (CSME) was launched on January 30, 2006.

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …

Jewish Law: Deciphering The Code By Global Process And Analogy, Donna Litman

Faculty Scholarship

No abstract provided.

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Faculty Scholarship

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney

Faculty Scholarship

This article contributes to an ongoing debate about the feasibility and desirability of measuring the merit of appellate judges - and their consequent Supreme Court potential - by using objective performance variables. Relying on the provocative and controversial tournament criteria proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the Supreme Court potential of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two …