Judges Commons^™

Case Files From The Late Hon. Michael S. Kanne Donated To The Jerome Hall Law Library, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The case files of the late Judge Michael S. Kanne have been donated to the Indiana University Maurer School of Law’s Jerome Hall Law Library.

Kanne, a 1968 graduate of the Law School, served on the U.S. Court of Appeals for the Seventh Circuit from 1987 up until his death in June 2022. Prior to his elevation to the Seventh Circuit, Judge Kanne served on the bench of the U.S. District Court of the Northern District of Indiana.

Judge Kanne’s files span the entirety of his service on the Seventh Circuit, and contain papers regarding opinions, concurrences, and dissents …

Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart

Indiana Law Journal

Qualified immunity is a judicially created doctrine that shields government officials from personal liability for civil damages. Courts applying the doctrine, which is heavily dependent on the facts of the case, must determine whether the government officials’ conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. This inquiry is discretionary as judges must determine if the alleged violation was “clearly established,” a term that the Supreme Court has defined in conflicting ways. Moreover, when federal judges conduct the qualified immunity inquiry at the Rule 12(b)(6) motion to dismiss stage, their decision is …

Alumna Doris Pryor, ’03, Nominated To Seventh Circuit, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

President Joe Biden announced three judicial nominees on May 25, including the Hon. Doris L. Pryor—a 2003 graduate of the Maurer School of Law—to the U.S. Court of Appeals for the Seventh Circuit.

The Hon. Jed Rakoff To Serve As 2022 Commencement Speaker, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

Aggregate Stare Decisis, Kiel Brennan-Marquez

Indiana Law Journal

The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate—echoing decades of scholarship—about the doctrine’s role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect “neutral principles” that run orthogonal to a case’s merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits—by diagnosing the magnitude of …

Maurer School Of Law To Host Court Of Appeals Argument, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

Overstepping: U.S. Immigration Judges And The Power To Develop The Record, Jayanth K. Krishnan

Articles by Maurer Faculty

In 1952, Congress established a new federal position to be filled by “special inquiry officers” charged with overseeing deportation cases. These immigration judges—as they eventually came to be called—were assigned to work within the executive branch, namely, the Department of Justice, and they were to be answerable ultimately to a political appointee, the attorney general. Importantly, they received specific statutory authority allowing them to “develop the record” during an immigration case. This power enabled immigration judges to assemble evidence and call, “interrogate, examine, and cross‑examine . . . any witnesses.”

Given that many immigrants who appear in immigration court do …

Facts Versus Discretion: The Debate Over Immigration Adjudication, Jayanth K. Krishnan

Articles by Maurer Faculty

Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, some immigrants looking to avoid deportation may apply for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available …

A Taxonomy On Constitutional Court Appointment Mechanisms In Federal Countries, Molly Madden

Indiana Journal of Constitutional Design

This paper provides a taxonomy of how federal countries appoint judges to their highest courts. Appointment mechanisms involve (1) little or no meaningful input from state government, (2) the states acting in an indirect role, or (3) substantial state government input. Within-group one, countries that allow for little to no meaningful input from state governments, some countries require that one federal body check another federal body during the appointment process, such as the federal executive’s nominees are confirmed by the federal senate. I first evaluate which court or entity in each country answers federalism questions, whether that is a Constitutional …

Judicial Power—Immigration-Style, Jayanth K. Krishnan

Articles by Maurer Faculty

Throughout this current global pandemic, but of course, even before, former President Trump advocated enacting restrictive immigration measures. Under his tenure, the Department of Homeland Security (DHS) assumed enhanced judicial authority and issued decisions that often adversely affected noncitizens. However, in June 2020, the U.S. Supreme Court struck down one of the DHS's most well-known initiatives, which sought to end the 'DACA' program. The Court held that the agency could not do so arbitrarily and had to comply with the requirements set forth in the Administrative Procedure Act.

Yet, there have been other areas where the DHS, particularly through its …

Judicial Independence At Twilight, Charles G. Geyh

Articles by Maurer Faculty

Judicial independence is a fixture of American government, but its structure has never been fully understood. As long as the federal judiciary has survived episodic attacks with its independence intact, there has been no pressing need to know how or why. But a confluence of cyclical, sustained, and sudden developments now threatens the federal judiciary’s autonomy in arguably unprecedented ways and demands a more comprehensive analysis of judicial independence and its vulnerabilities. This article begins by reconceptualizing the structure of judicial independence in three tiers. At the apex is an ancient, Rule of Law Paradigm, which proceeds from the premise …

The Architecture Of Judicial Ethics, Charles G. Geyh

Articles by Maurer Faculty

In 1999, Professor Stephen Burbank wrote an article entitled The Architecture of Judicial Independence. It is a foundational piece that gave structure to what was then an understudied field. At the heart of that article is a profound insight: stable and enduring judicial systems are the product of forces in constructive tension. Thus, in the context of judicial administration, Burbank conceptualized judicial independence with reference to judicial accountability, and characterized pressure points in the relationship between them as complementary, not contradictory; and in later work, he made a similar point about the interplay between the law and policy in judicial …

Le Role Politique De La Cour Supreme, Toujours Recommence, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker

Indiana Law Journal

In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch

stack of paper. But in the same year, federal administrative agencies promulgate

80,000 pages of regulations—which makes an eleven-foot paper pillar. This move

toward electorally unaccountable administrators deciding federal policy began in

1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than

elected representatives, unelected bureaucrats increasingly make the vast majority

of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three

areas: delegation, deference, and independence.

This trend is about to be reversed. In the coming years, Congress will …

Judicial Independence: Tweak The Guiding Paradigm, Charles G. Geyh

Articles by Maurer Faculty

Over time, the public has simply ceased to believe judges when say that they follow the law, and nothing but. If judges impose their ideological policy preferences, the argument goes, why should they be independent from political controls, when other policymakers are not? We have reached the point where, when judges seek to defend the customs and conventions that have guarded against incursions upon their independence by arguing that “we are all about the law and nothing else,” the public response has increasingly become, “No, no, no, your nose is growing.”

Judicial Independence And The Budget: A Taxonomy Of Judicial Budgeting Mechanisms, Alexander Rosselli

Indiana Journal of Constitutional Design

This Paper addresses three aspects of judicial budgeting. First, it will identify the four broad families of constitutional provisions that consider the judicial budget. While the majority of procedures and requirements that govern judicial budgeting are found in statues, many nations’ constitutions explicitly address judicial salaries. Other constitutions only broadly address judicial budgeting. Second, we will analyze different approaches to judicial councils. Third, this Paper will address several different approaches to the judicial budgeting process. This includes how the judiciary’s budget is proposed, as well as how it is allocated and managed. Finally, this Paper will touch upon the tension …

Bhopal In The Federal Courts: How Indian Victims Failed To Get Justice, Jayanth K. Krishnan

Articles by Maurer Faculty

Over thirty-five years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (“UCIL”), which had as its parent company the American-based Union Carbide Corporation (“UCC”). Thousands were killed, with many more injured. One hundred forty-five cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were consolidated through the multi-district litigation (“MDL”) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens …

The Legal Fiction Of The Right To Defense In The Colombian Criminal Justice System, Manuel Iturralde

Indiana Journal of Global Legal Studies

In the first section of the article, I will discuss Omar's case to show why he did not have a fair trial, and particularly how his rights to access to justice and to defense were infringed, both by the public defense he was provided and by the judges that decided his case.

In the second section, I will show that Omar's case is a tellingillustration of the features of the Colombian criminal justice system, which systematically and disproportionately sentences and imprisons marginalized and poor people-in great measure because they lack the financial resources to pay for better and more motivated …

Improving Taiwan's Civil Procedure By Citizen Participation: Focusing On Expert Testimony In Public Interest Cases, Yin-Song Hsu

Maurer Theses and Dissertations

“The life of the law has not been logic; it has been experience.”

United States Supreme Court Justice Oliver Wendell Holmes, Jr's famous quotation adequately explains the institutional purpose of citizen participation in important trials. Court decisions require both logical reasoning and a practical adherence to the reality of citizens’ experiences. Currently, the Taiwanese public believes that judicial decisions are often not in line with national perceptions of law. In addition, judges’ limited social experiences often cause the public to distrust their verdicts. The life experiences of citizens can properly fill in the gaps in judicial knowledge and supplement the …

Dean's Desk: Students Find Clerkships In Smaller Counties Rewarding, Austen L. Parrish

Austen Parrish (2014-2022)

The students at the Indiana University Maurer School of Law come to Bloomington from all over the nation. During their summers, the temptation is for them to work in the country’s largest cities, often with the majority working in Indianapolis, Chicago, Washington, D.C., and New York. Many others work in our innovative Stewart Fellows global internship program, where students are placed in countries throughout the world.

Fewer students, however, choose to work in Indiana’s smaller towns, and the hundreds of trial court judges working there often need help. Many trial courts have crowded dockets and limited staffing, particularly those in …

Internet (Re)Search By Judges, Jurors, And Lawyers, H. Albert Liou, Jasper L. Tran

IP Theory

How can Internet research be used properly and reliably in law? This paper analyzes several key and very different issues affecting judges, jurors, and lawyers. With respect to judges, this paper discusses the rules of judicial conduct and how they guide the appropriate use of the Internet for research; the standards for judicial notice; and whether judges can consider a third category of non-adversarially presented, non-judicially noticed factual evidence. With respect to jurors, this paper discusses causes of and deterrents to jurors conducting Internet research during trials; and the recourse available to parties who are adversely impacted by such behavior. …

Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry

Indiana Law Journal

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature—which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.” The result is a disorienting kind of biography by committee, one which produces not one all-encompassing …

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Considering Reconsidering Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

In Reconsidering Judicial Independence, Professor Stephen Burbank revisits the nature of the relationship between judicial independence and judicial accountability—a relationship that he has elucidated over the course of an illustrious career. As Burbank emphasizes, the continuing success of this dichotomy depends on preserving a balance between its halves. But forces generations in the making have led to a new assault on the independence of the judiciary in the age of Trump, which has put the future of the independence–accountability balance in doubt. The age-old rule-of-law paradigm, which posits that independent judges put aside their personal biases and follow the law, …

Judicial Ethics: A New Paradigm For A New Era, Charles G. Geyh

Articles by Maurer Faculty

As the preamble to the Model Code of Judicial Conduct indicates, traditional notions of judicial ethics operate within a rule of law paradigm, which posits that the "three I's" of judicial ethics-independence, impartiality, and integrity-enable judges to uphold the law. In recent decades, however, social science, public opinion, and political commentary suggest that appointed judges abuse their independence by disregarding the law and issuing rulings in accord with their biases and other extralegal impulses, while elected judges disregard the law and issue rulings popular with voters, all of which calls the future of the three I's and judicial ethics itself …

Judicial Disqualification: An Analysis Of Federal Law, Third Edition, Charles G. Geyh

Books & Book Chapters by Maurer Faculty

Judicial Disqualification: An Analysis of Federal Law outlines the statutory framework of federal judicial disqualification law under statutes 28 U.S.C. §§ 455, 144, 47, and 2106. The monograph revises and expands on the previous editions, and analyzes the case law, with a focus both on substantive disqualification standards and procedural requirements.

Access To The Justices’ Papers: A Better Balance, Susan David Demaine

Articles by Maurer Faculty

This article explores the history of Supreme Court Justices’ papers and their status as private property. It discusses questions of access, the public’s interest in understanding the Court and its decisions, and the effect of the Justices’ papers on scholarship and popular research. Several options for encouraging greater openness are proposed.

The "Lower" Federal Courts: Judging In A Time Of Trump, Nancy Gertner

Indiana Law Journal

To be sure, I offer only preliminary thoughts in this Essay. The Trump presidency is young. There are multiple challenges to multiple executive decisions and orders in courts across the country. A full treatment would take the reader into the robust literature on judicial decision making about context and pragmatism, with historical comparisons to other epochs where the challenges were comparable, even to empirical analyses of judging at different periods of time. I start with judging in “ordinary” times, the period during which I served. I then describe the challenges of judging in a time of Trump, and I conclude …

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Articles by Maurer Faculty

No abstract provided.

Judicial Selection And The Search For Middle Ground, Charles G. Geyh

Articles by Maurer Faculty

This Article seeks to transcend perennial election versus appointment debates-including debates over campaign finance and the impact of "dark money"-by taking a closer look at why judicial selection is a contentious mess and discussing how it might be fixed. First, I present the case for elective and appointive systems. Second, I show that the arguments for each system are exaggerated or flawed.Third, I explore why it has been hard for proponents of each system to perceive and acknowledge those exaggerations and flaws, and propose ways to narrow the divide. Although the divide can and should be narrowed, I conclude that …