Judges Commons^™

The Politics Of Statutory Interpretation, Margaret H. Lemos

Faculty Scholarship

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …

Legitimacy And Lawmaking: A Tale Of Three International Courts, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

This article explores the relationship between the legitimacy of international courts and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the European Court of Justice (ECJ), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The ECJ is the most activist, but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more …

Two Great Leaders, L.A. Powe Jr.

NYLS Law Review

No abstract provided.

President John Adams And Four Chief Justices: An Essay For James F. Simon, R.B. Bernstein

NYLS Law Review

No abstract provided.

Of Law And The Revolution, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees, emergency laws …

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

Scholarly Articles in Law Reviews & Journals

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

Foreword, Antonin Scalia

Pepperdine Law Review

No abstract provided.

"A Land Of Strangers": Communitarianism And The Rejuvenation Of Intermediate Associations, Derek E. Brown

Pepperdine Law Review

No abstract provided.

Step Aside, Mr. Senator: A Request For Members Of The Senate Judiciary Committee To Give Up Their Mics, Paul E. Vaglicia

Indiana Law Journal

In 1995, a law professor at the University of Chicago Law School dubbed the Supreme Court confirmation hearings “vapid and hollow” and added that they, as implemented, “serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” Ironically, this same law professor, Elena Kagan, later endured the confirmation hearings as a nominee and currently sits as the 112th Justice of the U.S. Supreme Court. While she may be one of the few to ever reach a seat on the High Court, she is not alone in her assessment of the Supreme Court’s lackluster …

Check One And The Accountability Is Done: The Harmful Impact Of Straight-Ticket Voting On Judicial Elections, Meryl Chertoff, Dustin F. Robinson

Georgetown Law Faculty Publications and Other Works

States that elect judges are heir to a populist tradition dating back to the Jacksonian era. In the spectrum between independence and accountability, these states emphasize accountability. Systems vary from state to state, and even within states there may be geographic diversity or different selection systems for different levels of courts. Elections can be partisan or non-partisan, contested, or, as in merit-selection states, retention. Some states have dabbled in public financing of judicial elections. Reformers are most critical of contested partisan elections. Those are the elections where the most money is spent, the nastiest ads aired, and the dignity of …

The Role Of Case Complexity In Judicial Decision Making., Laura P. Moyer

Faculty and Staff Scholarship

The literature on ideology and decision making offers conflicting expectations about how judges’ ideology should affect their votes in cases that raise many legal issues. Using cases from the U.S. Courts of Appeals, I examine the strength of ideology as a predictor of sincere voting in single and multi-issue cases and test whether the same effect for ideology can be seen for liberal and conservative judges. For all judges, ideology yields a larger effect as the number of issues increases; however, conservative judges are much more likely than liberal judges to cast sincere votes at all levels of complexity.

Filling The Judicial Vacancies In A Presidential Election Year, Carl Tobias

University of Richmond Law Review

No abstract provided.

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Michigan Law Review

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in …

Assessing And Addressing The Problems Caused By Life Tenure On The Supreme Court, Philip D. Oliver

The Journal of Appellate Practice and Process

No abstract provided.

The Judicial Appointment Process, John Tunney

Pepperdine Law Review

No abstract provided.

Random Chance Or Loaded Dice: The Politics Of Judicial Designation, Todd C. Peppers, Katherine Vigilante, Christopher Zorn

Scholarly Articles

Here, we take advantage of a unique characteristic of the procedures of the U.S. courts of appeals—the discretion held by chief judges to designate district court judges to three-judge appellate panels— to examine empirically the importance of oversight and judicial hierarchy on judges' behavior in those courts. Specifically, we examine the extent to which decisions about the policy preferences of designated judges vary systematically with the ideological tenor of the chief judge himself, the court as a whole, and the U.S. Supreme Court. More simply put, we ask: are district court judges selected to sit on appeals court panels simply …

Open Secret: Why The Supreme Court Has Nothing To Fear From The Internet, Keith J. Bybee

Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University

The United States Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that the internet age of fluid information and openness has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of …

Fill The Bench And Empty The Docket: Filibuster Reform For District Court Nominations, Jeremy Garson

University of Michigan Journal of Law Reform Caveat

Judges are, without question, vital to our justice system. They interpret, adapt, and apply the law. They resolve disputes for the parties to the case at issue and provide guidance to others in analogous situations. They are the gears that keep the wheels of justice moving. Unfortunately, in the case of our federal courts, many of these gears are missing. Eighty-three of our 874 federal judgeships are vacant, including thirty-four that have been declared “judicial emergencies.” Our Constitution vests the President with the power to nominate federal judges and the Senate with the power to confirm or reject them, and …

Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Mckinley Brennan

Working Paper Series

This is my Introduction to Legal Affinities: Explorations in the Legal Form of Thought (forthcoming 2012) (co-edited with H. Jefferson Powell and Jack Sammons), a volume of essays dedicated to exploring the work of Joseph Vining. The Introduction introduces Vining’s phenomenology of law and surveys the themes and topics developed by the volume’s eight authors: Joseph Vining, Judge John T. Noonan, Jr., Rev. John McCausland, H. Jefferson Powell, Jack Sammons, Steve Smith, James Boyd White, and Patrick Brennan.

Free Speech For Judges And Due Process For Litigants: The Elimination Of First And Fourteenth Amendment Mutual Exclusivity In Siefert V. Alexander, 46 J. Marshall L. Rev. 333 (2012), Margaret Mares

UIC Law Review

No abstract provided.

The Politicization Of Judicial Elections And Its Effect On Judicial Independence, Matthew W. Green Jr., Susan J. Becker

Law Faculty Articles and Essays

This article presents the proceedings of the Cleveland-Marshall College of Law Symposium, The Politicization of Judicial Elections and Its Effect on Judicial Independence and LGBT Rights, held October 21, 2011. The idea for the conference stemmed from the November 2010 Iowa judicial election, in which three justices were voted out of office as a result of joining a unanimous ruling, Varnum v. Brien, that struck down, on equal protection grounds, a state statute limiting marriage rights to heterosexual couples. The conference addresses whether the backlash that occurred in Iowa after the Varnum decision might undermine judicial independence in jurisdictions where …

The Disdain Campaign, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as …

The Politicization Of Judicial Elections And Its Effect On Judicial Independence, Matthew W. Green Jr., Susan J. Becker, Marsha K. Ternus, Camilla B. Taylor

Cleveland State Law Review

This article presents the proceedings of the Cleveland-Marshall College of Law Symposium, The Politicization of Judicial Elections and Its Effect on Judicial Independence and LGBT Rights, held October 21, 2011. The idea for the conference stemmed from the November 2010 Iowa judicial election, in which three justices were voted out of office as a result of joining a unanimous ruling, Varnum v. Brien, that struck down, on equal protection grounds, a state statute limiting marriage rights to heterosexual couples. The conference addresses whether the backlash that occurred in Iowa after the Varnum decision might undermine judicial independence in jurisdictions where …

Introduction, Paul Finkelman

Faculty Scholarship

No abstract provided.

Tax Court Appointments And Reappointments Improving The Process, Danshera Cords

University of Richmond Law Review

This article explores the problems with the appointment and reappointment process of judges to the United States Tax Court, particularly focusing on the recent politicization of the process. Until 1992, the process ensured the appoint-ment of only well-qualified judges to the Tax Court bench. However, beginning with the administrations of Presidents William J. Clinton and George W. Bush, the President infused politics into the nomination process, causing the process to slow and creating vacancies on the court. Such delays threaten the court's effectiveness and disrupt its operations. To solve this problem, the author endorses changing the statute to allow Tax …

The Micro And Macro Causes Of Prison Growth, John F. Pfaff

Faculty Scholarship

No abstract provided.

"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss

Faculty Scholarship

This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of "allocation." Because the term "deference" muddles rather than clarifies the structure's operation, this Essay avoids speaking of "Chevron deference" and "Skidmore deference." Rather, it argues, one could more profitably think in terms of "Chevron space" and "Skidmore weight." "Chevron space" denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints – that is, its allocated authority. "Skidmore weight" …

Samantar And Executive Power, Peter B. Rutledge

Scholarly Works

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

The Judiciary In Political Transitions: The Critical Role Of U.S. Constitutionalism In Latin America, Nuno Garoupa, Maria A. Maldonado

Cardozo Journal of International and Comparative Law

This paper proposes a theory that explains how political transitions deal with incumbent judiciaries. We argue that a new political regime compares the benefit of reshaping the judiciary with loyal appointees against the political and economic costs of directly interfering, including the cost of international reputation. There are several forms of interventionism including court packing, court purging, and violence against the judiciary. We discuss political transitions in Europe and Latin American civil law jurisdictions through the lens of our theory. We argue that American constitutional influence plays a critical role. In addition, we provide a detailed analysis of the recent …

Modeling The Congressional End-Run Constraint, Luke M. Milligan

University of Richmond Law Review

No abstract provided.