Judges Commons^™

Unmasking Judicial Extremism, Carl W. Tobias

Law Faculty Publications

Review of Cass R. Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (2005)

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. …

Obviousness Before And After Judge Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 9 (2009), Mark J. Abate

UIC Review of Intellectual Property Law

Chief Judge Howard T. Markey left an everlasting mark on the meaning of obviousness under 35 U.S.C. § 103. Chief Judge Markey viewed all inventions as combinations of old elements because, in his own words, “Only God works from nothing. Man must work with old elements.” Chief Judge Markey’s obviousness jurisprudence can be characterized by three fundamental principles. First, he looked at an invention as a whole. Second, he looked for real world evidence of nonobviousness because it was a reliable indicator of obviousness. Third, he avoided the dangers of hindsight bias by looking for a reason to combine a …

The Role Of Juries In Managing Patent Enforcement: Judge Howard Markey's Opinions And Writings, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 41 (2009), John R. Alison

UIC Review of Intellectual Property Law

In the 1970s, a trial by jury was rare in patent cases. By the time Chief Judge Markey left the United States Court of Appeals for the Federal Circuit in 1989, jury trials had become the norm. Throughout Judge Markey’s time on the bench he exerted great energy to promote, define, and improve the role of law juries in patent cases. This speech by Judge Markey’s former law clerk, John R. Alison, discusses the three Markey Principles. The first principle of Judge Markey is the fundamental right to a jury trial in patent cases. Second, proceedings in jury trials for …

The Legacy Of Judge Howard T. Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 1 (2009), Antonin Scalia

UIC Review of Intellectual Property Law

On September 16, 2008, Associate Justice of the Supreme Court of the United States Antonin Scalia delivered a speech on the legacy of the late Howard T. Markey. The speech was given at The John Marshall Law School’s The Legacy of Judge Howard T. Markey Symposium, held at the law school in Chicago, Illinois. The text of the speech appears here.

From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz

Articles

In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the U.S. Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder. Among its many surprises, NAMUDNO helps illuminate the Court’s fundamental error nine years ago. Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified …

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Queer Lockdown: Coming To Terms With The Ongoing Criminalization Of Lgbtq Communities, Ann Cammett

Scholarly Works

The criminal justice system exacts a toll on some Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) communities. The experience of living in poverty and the concomitant exposure to a variety of governmental systems puts all poor, but especially LGBTQ low-income people of color, at risk of incarceration. What typically goes unexamined are the myriad ways that LGBTQ people are drawn into and experience the carceral system because of sexual identities and expression. This negative effect surfaces at every conceivable level: the marginalization and subsequent criminalization of queer youth; anti-gay bias in the judicial system; the rerouting of domestic violence cases …

A Review Of “How Judges Think” By Richard A Posner, Chad Flanders

All Faculty Scholarship

This is a short review of How Judges Think by Richard Posner.

United States V. Leveto, Jennifer Steward

NYLS Law Review

No abstract provided.

State Regulation Of Arbitration Proceedings: Judicial Review Of Arbitration Awards By State Courts, Stephen K. Huber

Cardozo Journal of Conflict Resolution

The thesis of this Article can be stated simply and concisely: States possess the power to adopt standards for the conduct of arbitration proceedings and review of arbitration awards that are significantly different from federal law standards. The major objective of this Article is to explore the most important possibilities for reform of arbitration law and practice at the state level. State law standards will be of increasing importance in the reformation of arbitration practice. This Article focuses on the standards of review of arbitration awards employed by state courts, because the power to vacate an arbitration award is the …

The Andean Tribunal Of Justice And Its Interlocutors: Understanding Preliminary Reference Patterns In The Andean Community, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system. We find that the …

Deliberation And Strategy On The United States Courts Of Appeals: An Empirical Exploration Of Panel Effects, Pauline Kim

Scholarship@WashULaw

Recent studies have established that decision-making by federal court of appeals judges is influenced not only by the preferences of the judge, but also the preferences of her panel colleagues. Although the existence of these panel effects is well documented, the reasons they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects - one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit …

How Should We Study District Judge Decision-Making?, Pauline Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin

Scholarship@WashULaw

Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. Yet much of the existing empirical work on federal district courts has failed to take account of the setting in which those judges operate. Too often, empirical studies of the district courts rely on an implicit assumption that judging at the trial court level is fundamentally the same as judging at the appellate level. We argue that this approach is misguided, because the nature of district judges’ work is substantially different from that of appellate judges. For example, unlike in the typical appellate case, a district …

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.

Judging The Judges, Stefanie A. Lindquist, Frank B. Cross

Scholarship@WashULaw

The evaluation of judges, especially circuit court judges, has commanded increased attention, with the quantitative analyses of Stephen Choi and Mitu Gulati. However, the proper dimensions for the evaluation of judges remains much disputed. Critics have challenged Choi & Gulati’s scales for measuring judicial quality but have offered little that is positive that would improve measurement. The critics make philosophical challenges to whether the measures truly capture the qualities of judging we should desire, but they offer no measurement tools to improve on Choi and Gulati.

We hope to advance the theoretical and empirical evaluation by incorporating different scales for …

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 …

A New Look At Judicial Impact: Attorney's Fees In Securities Class Actions After Goldberger V. Integrated Resources, Inc., Theodore Eisenberg, Geoffrey Miller, Michael A. Perino

Faculty Publications

Political scientists have long been interested in what impact judicial decisions have on their intended audiences. Compliance has been defined as the lower court's proper application of standards the superior court has enunciated in deciding all cases raising similar or related questions. Most studies find widespread compliance in lower courts, with only rare instances of overt defiance.

This Article attempts to address three questions in the extant judicial impact literature. First, existing studies use rather insensitive measures of compliance and thus may fail to identify instances of subtle resistance to higher court rulings. Second, judicial impact literature has a restrained …

Extending Charter Benefits To Canada’S Poor, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

While the Canadian Charter of Rights and Freedoms has had a major impact on Canada’s political landscape in its first 25 years, its impact on social and economic rights has been minimal. The courts should assume a larger role in advancing the rights of the many Canadians living in poverty and despair.

Judges have traditionally regarded matters of social and economic policy as falling within the expertise of the legislative and executive branches of the state. The Charter has done little to dispel that view. The elected branches of the state must continue to play a major role, but the …

Free From Decree, David Schoenbrod, Ross Sandler

Other Publications

No abstract provided.

Judicial Independence, Harry Tepker

Other Faculty Publications

No abstract provided.

Regulating Discourtesy On The Bench: A Study In The Evolution Of Judicial Independence, Bruce Green, Rebecca Roiphe

Articles & Chapters

In this paper, we argue that the myth of the detached, rational judge, free from emotion runs the risk of undermining the quality of judging, obscuring the transparency of judicial decisions, and deterring the development of diverse judicial styles. We explore the history of the myth of the detached judge and how it made its way into rules of judicial conduct. By contextualizing this image of the judiciary, the article concludes that the rules of judicial conduct have come to embody an antiquated understanding of judicial independence and ought to be revised to reflect a more modern concept of the …

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

Against Textualism, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How …

A Plea For Reality, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Legend has it that a long-ago Chief Justice of Texas said, “No judicial selection system is worth a damn.” This view has been all but proven by American experience; nothing else in American law matches this subject in terms of the volume of written debate and endless sweat spent working for change. The selection system for federal judges is unchanged but far from untroubled, and

the States have never used a common method . . . . [O]ne can identify almost as many different methods . . . as there are States in the Union . . . . Moreover, …

Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what …

The Legal And Constitutional Foundations For The District Of Columbia Judicial Branch, Steven M. Schneebaum

University of the District of Columbia Law Review

No abstract provided.

Keynote Address Of Congresswoman Eleanor Holmes Norton, Eleanor Holmes Norton

University of the District of Columbia Law Review

No abstract provided.

Who Should Appoint Judges Of The D.C. Courts?, Charles A. Miller

University of the District of Columbia Law Review

Since 1970, the District of Columbia court system has been comprised of the District of Columbia Court of Appeals and the Superior Court of the District of Columbia.' From the time of the establishment of the District, judges of its courts have been appointed by the President of the United States, acting on the advice of the Attorney General. When the general issue of District home rule came before Congress in the 1960s, one of the subjects considered was the judicial appointment process. In 1970, the District of Columbia Court Reform and Criminal Procedure Act 2 continued the Presidential appointment …

The District Of Columbia's Judicial Selection Process: The Good, The Bad, And The Ugly, Patricia M. Worthy

University of the District of Columbia Law Review

No abstract provided.