Judges Commons^™

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …

How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi

Faculty Scholarship

Richard Posner famously modeled judges as Bayesians in his book, How Judges Think? A key element of being Bayesian is that one constantly updates with new information. This model of the judge who is constantly learning and updating, particularly about local conditions, also is one of the reasons why the factual determinations of trial judges are given deference on appeal. But do judges in fact act like Bayesian updaters? Judicial evaluations of search warrant requests for probable cause provides an ideal setting to examine this question because the judges in this context have access to information on how well they …

Representation On The Courts? The Effects Of Trial Judges' Sex And Race, Christina L. Boyd

Scholarship@WashULaw

Scholars have long sought to resolve whether and to what degree political actor diversity influences the outputs of political institutions like legislatures, administrative agencies, and courts. When it comes to the judiciary, diverse judges may greatly affect outcomes. Despite this potential, no consensus exists for whether judicial diversity affects behavior in trial courts -- i.e., the stage where the vast majority of litigants interact with the judicial branch. After addressing the research design limitations in previous trial court-diversity studies, the statistical results here indicate that a trial judge's sex and race have very large effects on his or her decision …

The Comparative Outputs Of Magistrate Judges, Christina L. Boyd

Scholarship@WashULaw

Do federal magistrate judges make different decisions and produce distinct judicial outputs from district judges? To provide initial empirical evidence on this question, this study utilizes federal district court data covering issue areas including employment discrimination, broader civil rights, intellectual-property rights, and personal-injury torts. The data indicate that magistrate judges are actively involved in civil cases, with as many as sixty-seven percent of cases having one or more magistrate judges serving in some role. These magistrate judges commonly preside over settlement conferences, decide discovery motions, issue reports and recommendations on dispositive motions, preside over status, management, and scheduling conferences, and …

The Ideal Judge: How Implicit Bias Shapes Assessment Of State Judges, Rebecca D. Gill, Rafael Oganesyan

Political Science Faculty Research

Judicial Performance Evaluation (JPE) is generally seen as an important part of the merit system, which often suffers from a lack of relevant voter information. Utah’s JPE system has undergone significant change in recent years. Using data from the two most recent JPE surveys, we provide a preliminary look at the operation of this new system. Our results suggest that the survey component has difficulty distinguishing among the judges on the basis of relevant criteria. The question prompts intended to measure performance on different ABA categories are also indistinguishable. We find evidence that, on some measures, female judges do disproportionately …

Trailblazers And Those That Followed : Personal Experiences, Gender, And Judicial Empathy., Laura P. Moyer, Susan B. Haire

Faculty and Staff Scholarship

This paper investigates one causal mechanism that may explain why female judges on the federal appellate courts are more likely than men to side with plaintiffs in sex discrimination cases. To test whether personal experiences with inequality are related to empathetic responses to the claims of female plaintiffs, we focus on the first wave of female judges, who attended law school during a time of severe gender inequality. We find that female judges are more likely than their male colleagues to support plaintiffs in sex discrimination cases, but that this difference is seen only in judges who graduated law school …

Strategic Behavior And Variation In The Supreme Court’S Caseload Over Time, Kenneth W. Moffett, Forrest Maltzman, Karen Miranda, Charles R. Shipan

SIUE Faculty Research, Scholarship, and Creative Activity

Over the past sixty years, the size of the Supreme Court’s docket has varied tremendously, growing at some points in time and shrinking at others. What accounts for this variation in the size of the docket? We focus on two key strategic factors – the predictability of outcomes within the Court, and whether justices consider the potential actions of other political institutions – and assess whether these factors help to explain the variation in docket size over time. We discover that uncertainty and institutional constraints prevent the Court from choosing cases with complete freedom, even after accounting for other potential …

Judicial Activism’S Effect On Judicial Elections, Nick Fernandes

Student Scholar Symposium Abstracts and Posters

High profile Supreme Court cases have become increasingly commonplace, particularly with the Citizens United court decision granting unprecedented rights to corporations. Many in the media have decried these as examples of increasing “judicial activism”. This trend has trickled down to the state supreme courts as justices have increasingly played a more active role in developing policy. Gay marriage has become legalized in numerous states due to this trend. While public sentiment is unlikely to affect the appointed Supreme Court, it could have a substantial impact on state judicial elections.

This paper will specifically be looking at judicial elections in Kentucky. …

Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul

Political Science Honors Projects

The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.

‪Measuring The Effects Of Legal Precedent In Us Federal Courts‬, Jens Frankenreiter, Daniel L. Chen, Susan Yeh

Scholarship@WashULaw

Using data for 2000-2004, our results suggest that new precedent has a strong effect on district court judges’ decision standards. Results are stronger when we focus on decisions in the same area of law. Extending the data to 2012, our results get blurred or even change direction.

Coming Into The Anthropocene, Jedediah Purdy

Faculty Scholarship

This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and …

The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decisionmaking in the foreign affairs area in previous years. But foreign …

In Search Of Justice: An Examination Of The Appointments Of John G. Roberts And Samuel A. Alito To The U.S. Supreme Court And Their Impact On American Jurisprudence, Alberto R. Gonzales

William & Mary Bill of Rights Journal

During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges …

Leadership And Management Training In The North Carolina Judicial System: An Examination Of Identified Need, James E. Hardin Jr.

Duke Law Master of Judicial Studies Theses

The purpose of this paper is to ask whether North Carolina public service lawyers and judges believe that their judicial districts perform with maximum efficiency or whether there could be functional improvement with leadership and management training for system leaders, and with the perceived need of such training, as articulated by these professionals, what a general training model might look like. A brief examination of the institutionally provided leadership and management training offered to system leaders shows sparse resources are expended to develop leaders and train them so that they have the skills to direct individual organizations and change the …

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially …

The Jpe Commission Toward A More Transparent And Informative Evaluation, Rebecca D. Gill, Kenneth Retzl

Political Science Faculty Research

No abstract provided.

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to …

Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay

Faculty Scholarship

No abstract provided.

Implicit Bias In Judicial Performance Evaluations: We Must Do Better Than This, Rebecca D. Gill

Political Science Faculty Research

Judicial performance evaluations (JPEs) are a critical part of selecting judges, especially in states using merit-based selection systems. This article shows empirical evidence that gender and race bias still exist in attorney surveys conducted in accordance with the ABA’s Guidelines. This systematic bias is related to a more general problem with the design and implementation of JPE surveys, which results in predictable problems with the reliability and validity of the information obtained through these survey instruments. This analysis raises questions about the validity and reliability of the JPE. This is a particularly poor outcome, as it means that we are …

The Growth Of Incarceration In The United States: Exploring Causes And Consequences, Jeremy Travis, Bruce Western, F. Stevens Redburn

Publications and Research

After decades of stability from the 1920s to the early 1970s, the rate of incarceration in the United States more than quadrupled in the past four decades. The Committee on the Causes and Consequences of High Rates of Incarceration in the United States was established under the auspices of the National Research Council, supported by the National Institute of Justice and the John D. and Catherine T. MacArthur Foundation, to review evidence on the causes and consequences of these high incarceration rates and the implications of this evidence for public policy.

Our work encompassed research on, and analyses of, the …

Diversity, Deliberations, And Judicial Opinion Writing., Susan B. Haire, Laura P. Moyer, Shawn Treier

Faculty and Staff Scholarship

Underlying scholarly interest in diversity is the premise that a representative body contributes to robust decision-making processes. Using an innovative measure of opinion content, we examine this premise by analyzing deliberative outputs in the US courts of appeals (1997-2002). While the presence of a single female or minority did not affect the attention to issues in the majority opinion, panels composed of a majority of women or minorities produced opinions with significantly more points of law compared to panels with three Caucasian males.

Agenda: Arizona V. California At 50: The Legacy And Future Of Governance, Reserved Rights, And Water Transfers, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Arizona v. California at 50: The Legacy and Future of Governance, Reserved Rights, and Water Transfers (Martz Summer Conference, August 15-16)

The Colorado River is an economic, environmental and cultural lifeline of the southwestern United States, and the allocation of its scarce waters are a source of ongoing controversy. This year marks the 50th anniversary of the Supreme Court decision in Arizona v. California. While the case was an important landmark in the still-evolving relationship between these two Lower Basin states, it remains most relevant today by the way in which it clarified federal rights and responsibilities. This is especially true in the areas of federal (including tribal) reserved rights, the role of the Interior Secretary in Lower Basin water …

The Role Of The Federal Judge In The Constitutional Structure: An Originalist Perspective, Diarmuid F. O'Scannlain

San Diego Law Review

Join me now in examining some of the structural features of our Constitution. And let’s do so by focusing upon cases that have come before my court—the United States Court of Appeals for the Ninth Circuit, the second highest federal court in the land, inferior only to the Supreme Court of the United States. My goal is to present, in modest outline, an originalist perspective on the federal judge’s role, particularly my role as a circuit judge, in the constitutional order.

Holmes, Cardozo, And The Legal Realists: Early Incarnations Of Legal Pragmatism And Enterprise Liability, Edmund Ursin

San Diego Law Review

The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy …

Interagency Litigation And Article Iii, Joseph Mead

All Maxine Goodman Levin School of Urban Affairs Publications

Agencies of the United States often find themselves on opposite sides of the "v." in disputes ranging from alleged unfair labor practices in federal agencies to competing statutory interpretations to run-of-the mill squabbles over money. Yet Article III's case-or-controversy requirement includes—at a minimum—adverse parties and standing. Courts have disagreed with one another over the extent to which litigation between the sovereign and itself meets Article III standards. Despite the volume of scholarship on Article III standing, relatively little attention has been paid to Article III's requirement of adverse parties in general, or the justiciability of intrabranch litigation in particular. Looking …

Women Ruling The Bench: Steps To Achieving Gender Parity On State Courts, Cheyenne L. Horien

Political Science Theses and Capstones

Across the United States, each state practices one of several methods of selecting judges to their courts. Many of these processes have not changed for decades and some argue this results in minorities, both gender and racial, receiving fewer spots on the bench. I focus explicitly on the gender aspect of judicial selection: Why are there fewer women judges in some states than in others? Previous literature on this topic is mixed. I analyzed data gathered from the American Judicature Society and other sources. Among the five methods (appointment, combination, merit selection, non-partisan election, partisan election), because of the many …

Judicial Attention As A Scarce Resource: A Preliminary Defense Of How Judges Allocate Time Across Cases In The Federal Courts Of Appeals, Marin K. Levy

Faculty Scholarship

Federal appellate judges no longer have the time to hear argument and draft opinions in all of their cases. The average annual filing per active judgeship now stands at 330 filed cases per year — more than four times what it was sixty years ago. In response, judges have adopted case management strategies that effectively involve spending significantly less time on certain classes of cases than on others. Various scholars have decried this state of affairs, suggesting that the courts have created a “bifurcated” system of justice with “separate and unequal tracks.” These reformers propose altering the relevant constraints of …

Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel

Faculty Scholarship

This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.

Suboptimal Social Science And Judicial Precedent, Ben Grunwald

Faculty Scholarship

No abstract provided.

Mocking Equality: Reproduction Of Gender Hierarchy In Collegiate Mock Trial, Lily M. Foss

Scripps Senior Theses

During the information sessions that the Scripps Mock Trial Team hosts at the beginning of the school year for those interested in mock trial, it's customary for all the returning team members to talk about why we decided to join mock trial in college. We had no team at my high school, but at the end of my senior year, my AP American Government teacher decided that having a mock trial in class would give us valuable insight into the American legal system. I was chosen to give the closing statement for the defense, and I found my calling. My …