Judges Commons^™

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

The Role Of The Office Of The Administrative Law Judges Within The United States International Trade Commission, 8 J. Marshall Rev. Intell. Prop. L. 216 (2009), Carl C. Charneski

UIC Review of Intellectual Property Law

Section 337 of the Tariff Act of 1930 makes unlawful, specifically, the importation of products that infringe intellectual property rights. The U.S. International Trade Commission (“ITC”) is the forum in which all section 337 proceedings are adjudicated and, within the ITC, the Office of Administrative Law Judges handles all these proceedings. Section 337 cases can be exceedingly complex and technical, and the Administrative Law Judges (“ALJ”) are the initial triers of fact, administrators, and decision makers in every case. Thus, the amount of work that the ALJs—along with their staff—must meet to see these cases to completion can be substantial. …

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

An Examination Of Strategic Anticipation Of Appellate Court Preferences By Federal District Court Judges, Christina L. Boyd, James F. Spriggs

Scholarship@WashULaw

This Essay tackles the complicated relationships within the federal judicial hierarchy with a focus on the relatively understudied connection between the Supreme Court and district courts.

Administrative Judges' Role In Developing Social Policy, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Criminal And Sentencing Law Review Commissions: Detached, Contemplative Decision Making On Matters Of Criminal Justice Reform, 41 J. Marshall L. Rev. 777 (2008), John J. Cullerton, Kirk W. Dillard, James B. Durkin, Robert S. Molaro, Peter G. Baroni

UIC Law Review

No abstract provided.

The Illinois Criminal Code Of 2009: Providing Clarity In The Law, 41 J. Marshall L. Rev. 815 (2008), Governor James R. Thompson, Justice Gino Divito, Peter G. Baroni, Kathy Saltmarsh, Daniel Mayerfeld

UIC Law Review

No abstract provided.

Working Class Judges, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Part I of this article provides our reanalysis of Scott Baker's data that examines the relationship between judicial salaries and the work habits and voting patterns of federal appellate judges. Part II establishes an additional comparative context that allows us to speculate why Top Five legal markets may foster a more intense tradeoff of influence versus remuneration. Indeed, as we note, the real or perceived financial tradeoffs are so enormous - and conspicuous - in Top Five markets that federal judges may feel they have been lumped together with a large, faceless working class. We conclude by suggesting that the …

Slides: The Future Of Federal Wetlands Regulation, Mark Squillace

The Future of Federal Wetlands Regulation After Rapanos (May 10)

Presenter: Professor Mark Squillace, Director, Natural Resources Law Center, University of Colorado School of Law

35 slides

Agenda: The Future Of Federal Wetlands Regulation After Rapanos, University Of Colorado Boulder. Natural Resources Law Center

The Future of Federal Wetlands Regulation After Rapanos (May 10)

Hot-Topic Discussion held at Brownstein Hyatt Farber Schreck in Denver, Colorado on May 10, 2007 from 12:00 p.m. to 1:15 p.m.

Speaker: Mark Squillace, Director of the Natural Resources Law Center, University of Colorado School of Law.

Commentators: Wayne Forman and Michelle Kales, attorneys, Brownstein Hyatt Farber Schreck

"Rapanos v. United States, 547 U.S. 715 (2006), was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. It was the first major environmental case heard by the newly appointed Chief Justice, John Roberts and Associate Justice, Samuel Alito. The Supreme Court …

"Quotidian" Judges Vs. Al-Qaeda, Mark S. Davies

Michigan Law Review

In Terror in the Balance: Security, Liberty, and the Courts, University of Chicago law professors Eric A. Posner and Adrian Vermeule invite those of us worried about the American response to al-Qaeda to consider the proper role of judges. Judges, of course, are not being dispatched to the hills of Pakistan nor are they securing our borders or buildings. But as the executive seeks to implement a range of new policies in the name of protecting us from al-Qaeda, the judicial treatment of these policies shapes the American response. Posner and Vermeule suggest a kind of Hippocratic view of …

Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm

ExpressO

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court’s crucial voice in environmental and natural resources law cases. Kennedy’s central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S., since he supplied the critical vote in both: upholding local use of the condemnation power for economic development under certain circumstances, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters. In each case Kennedy’s sole concurrence was outcome determinative.

Justice Kennedy has …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Vagueness At The Highest Level: How The Supreme Court Confirmation Hearings Brought An Infrequently Discussed Legal Topic Back Into The Spotlight--Recusal, Brett S. Garson

ExpressO

Recusal has been present in one form or another in most civilized societies dating back to the sixteenth century. Today, recusal law finds its place in American jurisprudence at §§ 144 & 455. The scarce case law and lack of scholarly attention given to recusal perpetuates its aura of ambiguity and makes application of recusal standards to real factual situations difficult. When D.C. Circuit judge John Roberts interviewed with high White House officials seven days prior to hearing Hamdan v. Rumsfeld—a case where President Bush was a defendant and also the personal designator of Salim Hamdan as an enemy combatant—the …

Toward A Federal Common Law Of Bankruptcy: Judicial Lawmaking In A Statutory Regime, Adam J. Levitin

ExpressO

Bankruptcy is a statutory system, yet it is replete with practices for which there is no direct authorization in the Bankruptcy Code. This article argues that the authorization for judicial creation of bankruptcy law beyond the provisions of the Code has been misidentified as the equity powers of bankruptcy courts. This misidentification has led courts to place inappropriate statutory and historical limitations on non-Code practices because of discomfort with unguided equitable discretion.

Both the statutory and historic limitations are problematic. The statutory authorization for the bankruptcy courts’ equitable powers appears to have been repealed by what one judge has called …

The Dubitante Opinion, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

A dubitante (pronounced d[y]oo-bi-tan-tee) opinion indicates that “the judge doubted a legal point but was unwilling to state that it was wrong.” Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion--What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins

University of San Diego Public Law and Legal Theory Research Paper Series

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …

Policymaking By The Administrative Judiciary, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

A Call For Change: Improving Judicial Selection Methods, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Empirical data show that, despite the significant electoral success of state court judges, elections still impact judicial decision making. Using the State of Wisconsin as an example, this Essay suggests that Wisconsin and other state legislatures, with the support of bar associations and academics, should revisit the historical underpinnings of judicial elections and consider both whether electing judges conforms with the historical goals of having an elected judiciary and whether the available empirical data support the belief that elected judges can be systematically consistent and independent in the decision making process.

Muzzling And Caging Administrative Law Judges: The Social Security Administration Attempts To Control Its Most “Notorious” Employees, Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Kruse V. Wells Fargo Home Mortgage, Inc. (Decided September 10, 2004), Jennifer Katehos

NYLS Law Review

No abstract provided.

The (Non)Uniqueness Of Environmental Law, Jay D. Wexler

Faculty Scholarship

In everyday discourse, the label "environmental law" signifies a distinct and unique area of the law. The uniqueness of environmental law stems most obviously from the subject matter of environmental legislation and regulation. But does environmental law also differ from other areas of law with respect to how judges ought to approach deciding cases? Should judges act differently somehow when they are deciding an environmental law case as opposed to, for example, a labor law or banking law case? At least one influential scholar - Richard Lazarus of the Georgetown University Law Center - has argued that the distinctive features …

Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …