Judges Commons^™

Book Review, Derek Kiernan-Johnson

Publications

No abstract provided.

Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson

Faculty Scholarship

This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic …

Judges And Religious-Based Reasoning, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less …

Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher

Faculty Scholarship

No abstract provided.

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty

Passive-Voice References In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

The Supreme Court regularly references grammar rules when interpreting statutory language. And yet grammar references play a peculiar role in the Court's statutory cases—often lurking in the background and performing corroborative work to support a construction arrived at primarily through other interpretive tools. The inevitable legisprudential question triggered by such references is, why does the Court bother? If grammar rules provide merely a second, third, or fourth justification for an interpretation reached through other interpretive canons, then what does the Court gain—or think it gains—by including such rules in its statutory analysis?

This essay examines these questions through the lens …

American Academy Of Religion V. Napolitano, Margaret Laufman

NYLS Law Review

No abstract provided.

Failed Constitutional Metaphors: The Wall Of Separation And The Penumbra, Louis J. Sirico Jr.

University of Richmond Law Review

No abstract provided.

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky

Akron Law Faculty Publications

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Congress, The Supreme Court, And Judicial Review: Testing A Constitutional Separation Of Powers Model, Stefanie A. Lindquist, Jeffrey A. Segal, Chad Westerland

Scholarship@WashULaw

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current …

Judicial Activism And The Interpretation Of The Voting Rights Act, Luis Fuentes-Rohwer

Cardozo Law Review

No abstract provided.

The Four Pillars Of Constitutional Doctrine, Suzanna Sherry

Cardozo Law Review

No abstract provided.

Citizens United, Stevens And Humanitarian Law Project: First Amendment Rules And Standards In Three Acts, William D. Araiza

Faculty Scholarship

No abstract provided.

Judicial Retirement And Return To Practice, Mary Clark

Scholarly Articles in Law Reviews & Journals

This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.

This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Justice Stevens And The Obligations Of Judgment, David Pozen

Faculty Scholarship

How to sum up a corpus of opinions that spans dozens of legal fields and four decades on the bench? How to make the most sense of a jurisprudence that has always been resistant to classification, by a jurist widely believed to have "no discernible judicial philosophy"? These questions have stirred Justice Stevens' former clerks in recent months. Since his retirement, many of us have been trying to capture in some meaningful if partial way what we found vital and praiseworthy in his approach to the law. There may be something paradoxical about the attempt to encapsulate in a formula …

From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas

Federal Communications Law Journal

After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that "fleeting expletives" are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC's new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The Second …

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Cornell Law Faculty Publications

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

Aliens On The Bench: Lessons In Identity, Race And Politics From The First "Modern" Supreme Court, Lori A. Ringhand

Scholarly Works

Every time a Supreme Court vacancy is announced, the media and the legal academy snap to attention. Even the general public takes note; in contrast to most of the decisions issued by the Court, a majority of Americans are aware of and have opinions about the men and women who are nominated to sit on it. Moreover, public opinion about the nominee has a strong influence on a senator's vote for or against the candidate. If the confirmation hearing held before the Senate Judiciary Committee is largely an empty ritual, why do so many people seem so enthralled by it? …

Fair Measure Of The Right To Vote: A Comparative Perspective On Voting Rights Enforcement In A Maturing Democracy, Janai S. Nelson

Cardozo Journal of International and Comparative Law

The article examines the underenforcement of the right to vote in Ghana, focusing on the exclusion of incarcerated citizens (GICs) despite the 1992 Constitution granting universal adult suffrage. It argues that underenforcement stems from legislative, administrative, and judicial failures, undermining democratic principles. The Ghanaian Supreme Court's decision in OcanseyCHURCIL ruled that denying GICs the right to vote was unconstitutional, aligning with a broader interpretation of voting rights as fundamental. The article emphasizes the importance of explicit constitutional provisions and active enforcement by all government branches to sustain democracy, particularly in emerging democracies.

Judicial Recusal & Expanding Notions Of Due Process, Andrey Spektor, Michael A. Zuckerman

Cornell Law School J.D. Student Research Papers

The merits of judicial elections have been litigated in journals around the country. In light of the recent Supreme Court decisions in White and Caperton, this debate will only intensify. Rather than revisit the arguments for and against electing judges, this Article argues that applying the Mathews v. Eldridge test in cases where a litigant’s due process is threatened by an elected judge—a possibility that the Court initially dismissed in White against Justice Ginsburg’s protests, and then took head on in Caperton—will balance First Amendment rights that judicial elections breed against the rights of the litigants that the Constitution protects. …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying …

Slavery Jurisprudence On The Supreme Court Of North Carolina, 1828-1858: William Gaston And Thomas Ruffin, Timothy C. Meyer

Campbell Law Review

In the years preceding the Civil War, two North Carolina Supreme Court Justices, Chief Justice Thomas Ruffin and Associate Justice William Gaston, offered starkly different legal opinions on issues relating to slavery. Despite broad similarities in their backgrounds and their agreement on many other legal and judicial issues, Ruffin and Gaston approached slavery from sharply contrasting perspectives. Both men used their positions on the bench to influence the treatment and legal status of slaves. While Ruffin vigorously defended the peculiar institution and took the concept of chattel to a logical extreme, Gaston denounced many of its dehumanizing elements. In fact, …

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …

Judicial Independence And Accountability In An Age Of Unconstitutional Constitutional Amendments, Teresa Stanton Collett

Loyola University Chicago Law Journal

No abstract provided.

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 …

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

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 …

Schrödinger’S Cross: The Quantum Mechanics Of The Establishment Clause, Joseph Blocher

Faculty Scholarship

Perhaps the most famous character in modern physics is Schrödinger’s Cat, an unfortunate feline trapped in a box alongside a flask containing deadly poison that may or may not have been released. Thanks to the wonders of quantum mechanics, the cat is both alive and dead — “mixed or smeared out in equal parts” — until the box is opened, at which point the act of observation causes its state to collapse into either life or death.

Far away in the Mojave Desert, the “life” of a six-foot-tall cross is disputed: it is either a religious symbol or it is …