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Articles 121 - 150 of 166
Full-Text Articles in Judges
Are Judges Overpaid?: A Skeptical Response To The Judicial Salary Debate, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Are Judges Overpaid?: A Skeptical Response To The Judicial Salary Debate, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Faculty Scholarship
The public debate over the need to raise judicial salaries has been one-sided. Sentiment appears to be that judges are underpaid. But neither theory nor evidence provides much support for this view. The primary argument being made in favor of a pay increase is that it will raise the quality of judging. Theory suggests that increasing judicial salaries will improve judicial performance only if judges can be sanctioned for performing inadequately or if the appointments process reliably screens out low-ability candidates. However, federal judges and many state judges cannot be sanctioned, and the reliability of screening processes is open to …
Which States Have The Best (And Worst) High Courts?, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Which States Have The Best (And Worst) High Courts?, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Faculty Scholarship
This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with …
Judging Measures, Mitu Gulati, David F. Levi
Judging Measures, Mitu Gulati, David F. Levi
Faculty Scholarship
The question of how to optimally design judicial institutions is one of central importance to the scholarship focused on courts. Basic questions such as whether there should be mandatory retirement for judges, whether judges should be expected to write their own opinions and whether greater racial or gender diversity on the courts improves decision making are optimal design questions. Given the vast variation in the types of judicial system designs used around the world (and even within the United States), it should be possible to conduct a comparative analysis of the relative efficacy of the different designs. These comparisons cannot …
Trading Votes For Reasoning: Covering In Judicial Opinions, Mitu Gulati, Stephen J. Choi
Trading Votes For Reasoning: Covering In Judicial Opinions, Mitu Gulati, Stephen J. Choi
Faculty Scholarship
No abstract provided.
Bias In Judicial Citations: A Window Into The Behavior Of Judges?, Mitu Gulati, Stephen J. Choi
Bias In Judicial Citations: A Window Into The Behavior Of Judges?, Mitu Gulati, Stephen J. Choi
Faculty Scholarship
This article tests for the presence of bias in judicial citations within federal circuit court opinions. Our findings suggest bias along three dimensions. First, judges base outside-circuit citation decisions in part on the political party of the cited judge. Judges tend to cite judges of the opposite political party less often than would be expected considering the fraction of the total pool of opinions attributable to judges of the opposite political party. Second, judges are more likely to engage in biased citation practices in certain high-stakes situations. These high-stakes situations include opinions dealing with certain subject matters (such as individual …
Why Originalism Won’T Die - Common Mistakes In Competing Theories Of Judicial Interpretation, Tara Smith
Why Originalism Won’T Die - Common Mistakes In Competing Theories Of Judicial Interpretation, Tara Smith
Duke Journal of Constitutional Law & Public Policy
In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This Article examines its resilient appeal (with a particular focus on Scalia’s Textualism). By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin’s value theory, and Judicial Minimalism), the Article demonstrates that the heart of Originalism’s appeal rests in its …
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
Faculty Scholarship
A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …
Ranking Judges According To Citation Bias, Mitu Gulati, Stephen J. Choi
Ranking Judges According To Citation Bias, Mitu Gulati, Stephen J. Choi
Faculty Scholarship
In our Essay, we put forward a methodology to assess the amount of political bias that affects judges based on the decisions judges make on whom to cite in their opinions. Unlike prior studies looking at judicial bias that focus on judicial voting outcomes, our study of bias in citation practices is aimed at uncovering more subtle forms of bias. Judges may shy away from acting overly biased when making a highly visible decision such as voting in a particular case, but instead seek to shift the law more subtly through their reasoning and citation patterns in the opinion, thereby …
What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez
What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez
Faculty Scholarship
No abstract provided.
On The Validity And Vitality Of Arizona’S Judicial Merit Selection System: Past, Present, And Future, Mark I. Harrison, Sara Sternberg Greene, Keith Swisher, Meghan H. Grabel
On The Validity And Vitality Of Arizona’S Judicial Merit Selection System: Past, Present, And Future, Mark I. Harrison, Sara Sternberg Greene, Keith Swisher, Meghan H. Grabel
Faculty Scholarship
This Article demonstrates that merit selection is functioning commendably in Arizona and, for the most part, provides the public with a judicial selection process far more informative and generally superior to “traditional elections.” Part I of this Article sketches the history of Arizona’s merit selection of judges and its previous state-wide judicial election system. Part II discusses and analyzes attacks on merit selection and, in addition, assesses the effect of the Judicial Performance Review program initiated in 1992 to enhance the efficacy of the merit selection system. Finally, largely through extensive interviews of many participants in Arizona’s merit selection system, …
Courts, Congress, And Public Policy, Part Ii: The Impact Of The Reapportionment Revolution On Congress And State Legislatures, Jeffrey R. Lax, Mathew D. Mccubbins
Courts, Congress, And Public Policy, Part Ii: The Impact Of The Reapportionment Revolution On Congress And State Legislatures, Jeffrey R. Lax, Mathew D. Mccubbins
Faculty Scholarship
No abstract provided.
Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast
Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast
Faculty Scholarship
No abstract provided.
Courts, Congress, And Public Policy, Part I: The Fda, The Courts, And The Regulation Of Tobacco, Jeffrey R. Lax, Mathew D. Mccubbins
Courts, Congress, And Public Policy, Part I: The Fda, The Courts, And The Regulation Of Tobacco, Jeffrey R. Lax, Mathew D. Mccubbins
Faculty Scholarship
No abstract provided.
Checks And Balances: Congress And The Federal Court, Paul D. Carrington
Checks And Balances: Congress And The Federal Court, Paul D. Carrington
Faculty Scholarship
This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …
Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez
Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez
Faculty Scholarship
No abstract provided.
Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck
Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck
Faculty Scholarship
No abstract provided.
Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati
Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati
Faculty Scholarship
No abstract provided.
A Tournament Of Judges?, Stephen Choi, Mitu Gulati
A Tournament Of Judges?, Stephen Choi, Mitu Gulati
Faculty Scholarship
We suggest a Tournament of Judges where the reward to the winner is elevation to the Supreme Court. Politics (and ideology) surely has a role to play in the selection of justices. However, the present level of partisan bickering has resulted in delays in judicial appointments as well as undermined the public's confidence in the objectivity of justices selected through such a process. More significantly, much of the politicking is not transparent, often obscured with statements on a particular candidate's "merit"- casting a taint on all those who make their way through the judicial nomination process. We argue that the …
The Political (Science) Context Of Judging, Lee Epstein, Jack Knight, Andrew D. Martin
The Political (Science) Context Of Judging, Lee Epstein, Jack Knight, Andrew D. Martin
Faculty Scholarship
No abstract provided.
The Norm Of Prior Judicial Experience And Its Consequences For Career Diversity On The U.S. Supreme Court, Lee Epstein, Jack Knight, Andrew D. Martin
The Norm Of Prior Judicial Experience And Its Consequences For Career Diversity On The U.S. Supreme Court, Lee Epstein, Jack Knight, Andrew D. Martin
Faculty Scholarship
No abstract provided.
Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai
Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai
Faculty Scholarship
In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …
Giants In A World Of Pygmies? Testing The Superstar Hypothesis With Judicial Opinions In Casebooks, Mitu Gulati, Veronica Sanchez
Giants In A World Of Pygmies? Testing The Superstar Hypothesis With Judicial Opinions In Casebooks, Mitu Gulati, Veronica Sanchez
Faculty Scholarship
No abstract provided.
A "Freshman" Takes Charge: Judge John J. Parker Of The United States Court Of Appeals, 1925-1930, Peter G. Fish
A "Freshman" Takes Charge: Judge John J. Parker Of The United States Court Of Appeals, 1925-1930, Peter G. Fish
Faculty Scholarship
No abstract provided.
Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles
Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles
Faculty Scholarship
Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as …
The Supreme Court As A Strategic National Policymaker, Lee Epstein, Jack Knight, Andrew D. Martin
The Supreme Court As A Strategic National Policymaker, Lee Epstein, Jack Knight, Andrew D. Martin
Faculty Scholarship
No abstract provided.
William Wirt & The Invention Of The Public Lawyer, H. Jefferson Powell
William Wirt & The Invention Of The Public Lawyer, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight
Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight
Faculty Scholarship
No abstract provided.
Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova
Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova
Faculty Scholarship
No abstract provided.
Marshall’S Questions, Walter E. Dellinger Iii, H. Jefferson Powell
Marshall’S Questions, Walter E. Dellinger Iii, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler
Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler
Faculty Scholarship
Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to …