Law Commons^™

In The Best Interests Of Whom?: An Analysis Of Judicial Bias In Custody Disputes Involving Transgender Children, Caden Pociask

Indiana Law Journal

Anti-transgender discrimination and bias loom large in many areas of our society, but perhaps one of the most concerning settings is within the four walls of a courtroom. Evidence suggests that judicial decision making in custody determinations involving transgender children are influenced by anti-transgender bias. In this Note, I examine the current best practice for treating transgender children, the affirmative model, and explore the legal landscape of custody cases involving parents who disagree on how to treat their transgender child. I then suggest a model of comprehensive judicial education reform to help eliminate antitransgender bias from family courts in the …

What Torres V. Madrid Reveals About Fact Bias In Civil Rights Cases, Amanda Peters

Florida State University Law Review

No abstract provided.

Judicial Ethics: A New Paradigm For A New Era, Charles G. Geyh

St. Mary's Journal on Legal Malpractice & Ethics

As the preamble to the Model Code of Judicial Conduct indicates, traditional notions of judicial ethics operate within a rule of law paradigm, which posits that the “three I’s” of judicial ethics—independence, impartiality, and integrity—enable judges to uphold the law. In recent decades, however, social science, public opinion, and political commentary suggest that appointed judges abuse their independence by disregarding the law and issuing rulings in accord with their biases and other extralegal impulses, while elected judges disregard the law and issue rulings popular with voters, all of which calls the future of the three I’s and judicial ethics itself …

Playing Favorites? Implicit Bias On The Bench, Michele Benedetto Neitz

Publications

The concept of implicit bias has moved to the forefront of public discussion in the last decade, and many judges have already been trained on this issue. But it is worth considering how a specific type of implicit bias, in-group favoritism, may affect a judge’s everyday decisions.

Dismissals As Justice, Anna Roberts

Faculty Publications

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of de minimis prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubber-stamp prosecutorial decision making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its …

Dismissals As Justice, Anna Roberts

Faculty Articles

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of de minimis prosecutions, these exercises of judicial power teach two important lessons. First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubber-stamp prosecutorial decision making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its …

Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.

I …

Restoring The Civil Jury In A World Without Trials, Dmitry Bam

Faculty Publications

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the …

Our Unconstitutional Recusal Procedure, Dmitry Bam

Faculty Publications

In this article, I argue that the recusal procedure used in state and federal courts for nearly all of American history is unconstitutional. For centuries, recusal procedure in the United States has largely resembled that of England before American independence. To this day, in most American courtrooms, the judge hearing the case decides whether recusal is required under the applicable substantive recusal rules. If the judge determines that she can act impartially, or that her impartiality could not reasonably be questioned, the judge remains on the case. And although the judge’s decision is typically subject to appellate review — with …

Recusal Failure, Dmitry Bam

Faculty Publications

The American judiciary is suffering from a terrible affliction: biased judges. I am not talking about the subconscious or unconscious biases — stemming from different backgrounds, experiences, ideologies, etc. — that everyone, including judges, harbors. Rather, I am describing invidious, improper biases that lead judges to favor one litigant over another for reasons that almost everyone would agree should play no role in judicial decision-making: the desire to repay a debt of gratitude to those who helped the judge get elected and be reelected.

In this article, I argue that that recusal has failed to prevent biased judges from rendering …

Remarks: Caperton's Next Generation -- Beyond The Bank, Dmitry Bam

Faculty Publications

On November 14, 2014, a symposium entitled, "Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton," was held at New York University. The symposium was sponsored by the Brennan Center for Justice, the American Bar Association's Center for Professional Responsibility, and NYU's Journal of Legislation and Public Policy. This document contains the transcript starting from Dmitry Bam's remarks from one of the four panels, and is entitled "Caperton's Next Generation: Beyond the Bank." The panel members included Professors Jed Shugerman, Debra Lyn Bassett, Gregory S. Parks, Dmitry Bam, and Rex Perschbacher.

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

Socioeconomic Bias In The Judiciary, Michele Benedetto Neitz

Michele Benedetto Neitz

The Dimensions Of Judicial Impartiality, Charles G. Geyh

Articles by Maurer Faculty

Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when "we are all legal realists now," perfect impartiality-the complete absence of bias or prejudice-is at most an ideal; "impartial enough" has, of necessity, become the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: a procedural dimension, in which impartiality affords parties a fair hearing; a political dimension, in which …

2009 Ethical Considerations In Land Use, Patricia E. Salkin

Patricia E. Salkin

This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and financial interests; and cases involving allegations of bias and prejudgment.

Litigating Ethics Issues In Land Use: 2000 Trends And Decisions, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Dissecting Axes Of Subordination: The Need For A Structural Analysis, Darren Lenard Hutchinson

Darren L Hutchinson

No abstract provided.

To Testify Or Not To Testify: The Dilemma Facing Children With Multiple Cases Before The Same Judge In Delinquency Court., Katherine I. Puzone

Katherine I. Puzone

In Juvenile Court, children often have more than one case pending, especially children living in group foster homes and those at alternative schools. In many jurisdictions, all of a child’s cases are assigned to the same judge. If the child is arrested at a later time, the new case is also assigned to the same judge. That means that if a child exercises her right to go to trial in each case, the same judge will hear every case. If they are set for trial on the same day, and they often are, the judge will hear each case in …

Allegedly “Biased,” “Intimidating,” And “Incompetent” State Court Judges And The Questionable Removal Of State Law Class Actions To Purportedly “Impartial” And “Competent” Federal Courts—A Historical Perspective And An Empirical Analysis Of Class Action Dispositions In Federal And State Courts, 1925-2011, Willy E. Rice

Faculty Articles

Judges as well as members of plaintiffs’ and defense bars agree: a class action is a superior, efficient, and inexpensive procedural tool to litigate disputes that present similar questions of fact and law. To be sure, corporations and insurers have a long history of filing successful class actions against each other in state courts. Yet those corporate entities convinced Congress to embrace an uncommon view: continuing to allow allegedly “hostile” and “biased” state judges and juries to hear and decide everyday consumers’ “purely substantive state law class actions” is unfair and inefficient. Responding to the plea, Congress enacted the Class …

Partiality And Disclosure In Supreme Court Opinions, Robert F. Nagel

Publications

This Essay begins by identifying the various kinds of partiality the Justices of the Supreme Court can have in the cases they decide. Although there is widespread recognition of the influence these biases might have, for the most part the Justices continue to write opinions as if they (and other judges) were entirely disinterested. This practice is often thought to be justified as a source of judicial legitimacy, but there are a number of reasons to doubt that a pretense of impersonality is actually important for maintaining respect for the Court. Consequently, the possibility has to be considered that the …

Forensic Science Evidence And Judicial Bias In Criminal Cases, Hon. Donald E. Shelton

Hon. Donald E. Shelton

Although DNA exonerations and the NAS report have raised serious questions about the validity of many traditional non-DNA forms of forensic science evidence, criminal court judges continue to admit virtually all prosecution-proferred expert testimony. It is is suggested that this is the result of a systemic pro-prosecution bias by judges that is reflected in admissibility decisions. These "attitudinal blinders" are especially prevalent in state criminal trial and appellate courts.

Comparative Federalism And The Role Of Judiciary, Daniel Halberstam

Book Chapters

The distinctive feature of federalism is to locate the central and constituent governments' respective claims of organizational autonomy and jurisdictional authority within a set of privileged legal norms that are beyond the arena of daily politics. For the most part, the debate about the role of the judiciary as federal umpire has taken place within two separate disciplinary compartments: comparative politics and law. Building on recent e��orts to bring these two disciplines closer, this article provides a fresh look at three common criticisms of granting the central judiciary power to protect federalism. It argues that political safeguards of federalism are …

Brief Of Amici Curiae In Support Of Respondent, Robert Calvin Brown, Iii V. State Of Maryland, No. 08-118, Brenda Bratton Blom

Court Briefs

Amici brief filed by the University of Maryland School of Law’s Clinical Program and members of the Baltimore legal community including legal educators, lawyers, student attorneys, service providers, government administrators, community based organizations, and nationally recognized individuals from community justice initiatives and organizations on Respondent’s behalf. The individuals and organizations represented in the brief have all collaborated together to build and support what are colloquially known as “problem solving dockets”: courts that are specialized, alternative sentencing dockets that offer diversionary programs to qualified offenders. The dockets are run out of Maryland’s district and circuit courts, but not separate, freestanding judicial …

United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy

American Indian Law Review

This article is a case study of United States v. Hatahley using the methodology of "legal archaeology" to reconstruct the historical, social, and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over one hundred horses and burros. The first section of the article presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining the parties, the history of incidents culminating …

2009 Ethical Considerations In Land Use, Patricia E. Salkin

Scholarly Works

This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and financial interests; and cases involving allegations of bias and prejudgment.

Deceptive Appearances: Judges, Cognitive Bias, And Dress Codes, Marybeth Herald

Marybeth Herald

Although it is no longer legal to deny women the right to work simply because they are women, an employer can still require women conform to gender-based appearance norms in order to keep their jobs. In some industries, lipstick, foundation, mascara, and blush remain essential components of a woman's professional uniform. In these industries, men are spared the obligation of cosmetic upkeep, because only women must don face-paint to appear comfortably recognizable to customers.

Why this differential dress-code is not considered discrimination on the basis of sex under Title VII is the mystery. The textual force of anti-discrimination law would …

Understanding The Person Beneath The Robe: Practical Methods For Neutralizing Harmful Judicial Biases, Evan R. Seamone

Journal Articles

This article presents hands-on self-awareness techniques for use by judges, arbitrators, members of commissions, and other legal decision-makers who are confronted with complex cases. All too often, these judges are expected to make the “right” decisions without knowing how to accomplish this task. While judges, no doubt, are capable of applying the law to a case, this is only one aspect of righteous behavior. This article is concerned with the related expectation that judges are capable of rendering fair and impartial decisions. No matter how much training they receive, judges can only avoid biases that are known to them.

Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(I), Willy E. Rice

Faculty Articles

Economic necessity, expanding dockets, and judicial bias and unfairness are reasons for removing summary judgement practice from declaratory judgment trials in Texas. The Texas Supreme Court adopted the summary judgment rule primarily to prevent juries from considering arguably groundless causes, to reduce costs, and to increase "the efficient administration of justice." The Texas Supreme Court could prevent summary judgment practice in declaratory judgment cases.

Texas's judges have the power to decide questions of fact and law when considering whether to award declaratory relief, negating the perceived need to entertain motions for summary relief. Trial judges must employ those doctrines to …

Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(L)., Willy E. Rice

St. Mary's Law Journal

Economic necessity, expanding dockets, and judicial bias and unfairness are reasons for removing summary judgement practice from declaratory judgment trials in Texas. The Texas Supreme Court adopted the summary judgment rule primarily to prevent juries from considering arguably groundless causes, to reduce costs, and to increase "the efficient administration of justice." The Texas Supreme Court could prevent summary judgment practice in declaratory judgment cases. Texas's judges have the power to decide questions of fact and law when considering whether to award declaratory relief, negating the perceived need to entertain motions for summary relief. Trial judges must employ those doctrines to …