Judges Commons^™

Settling For A Judge: A Comment On Clermont And Eisenberg, Samuel R. Gross

Articles

Trial by Jury or Judge: Transcending Empiricism,1 by Kevin Clermont and Theodore Eisenberg, is not only an important article, it is unique. To most Americans, trial means trial by jury. In fact, over half of all federal trials are conducted without juries2 (including 31% of trials in cases in which the parties have the right to choose a jury3), and the proportion of bench trials in state courts is even higher.4 And yet, while there is a large literature on the outcomes of jury trials and the factors that affect them,5 nobody else has systematically compared trials by jury to …

Way Beyond Candor, Gail Heriot

Michigan Law Review

Scott Altman's excellent article, Beyond Candor, causes me to pose this query: Does his theory contain not only the seeds of its own rejection, but perhaps also (if I am not careful) the seeds of the rejection of its rejection?

Altman tells us of the orthodox view that judges should be encouraged to be both honest with the public and honest with themselves about how they arrive at their decisions. Through this combination of public candor and critical introspection, judges will produce better judicial opinions and ultimately a better legal system, or so the argument runs.

Abe Fortas: A Biography, Michael F. Colosi

Michigan Law Review

A Review of Abe Fortas: A Biography by Laura Kalman

Electing Justice, Sol Wachtler

Michigan Law Review

A Review of In Pursuit of Justice: Reflections of a State Supreme Court Justice by Joseph R. Grodin

Review Of Cardozo: A Study In Reputation, By R. Posner, Richard D. Friedman

Reviews

Judge Richard Posner has written a genial book about one of our greatest judicial icons, Benjamin N. Cardozo.1 He seeks not only to assess the merits of Cardozo's writings, both on and off the bench, but also to measure, and determine the causes of, Cardozo's reputation. The book is an outgrowth of a lecture series,2 and it reveals its origins in at least two ways. First, the book attempts to reach a mixed audience, composed of both lawyers and laypeople, and in this aspect it is very successful. Nonlawyers, I believe, will have little difficulty following Judge Posner's essential arguments, …

Self-Regulation Of Judicial Misconduct Could Be Mis-Regulation, Anthony D'Amato

Michigan Law Review

Judge Harry T. Edwards has written a lucid and seemingly logical plea for the judiciary to be granted exclusive self-regulation over all matters of judicial misconduct that fall short of crimes or impeachable offenses. His essay demonstrates the seriousness with which he regards misconduct that would bring shame to the federal judiciary. He believes that the judiciary as a whole is the best institution to ascertain and take measures against individual aberrant judges who are guilty of various forms of misconduct, and I have no doubt of the sincerity of his belief. Yet when we look at claims for self-regulation …

Beyond Candor, Scott Altman

Michigan Law Review

In Part I, I consider whether judges might hold inaccurate beliefs that make them more candid and constrained. I suggest that even if theories of neutral decisionmaking are incomplete and inaccurate, a legal system in which judges hold these beliefs about their own behavior could have advantages. If many judges believe that they can, should, and do decide almost all cases by following the law, they might behave differently than they would if they held more accurate beliefs. They might behave so as to facilitate repression and denial, because their self-esteem depends on maintaining the belief that they decide as …

Selecting Law Clerks, Patricia M. Wald

Michigan Law Review

April may indeed have been "the cruellest month" this year for federal judges and their prospective clerks. For a decade now, federal judges have been trying - largely without success - to conduct a dignified, collegial, efficient law clerk selection process. Because each federal judge has only to choose two to three clerks each year, and there is a large universe of qualified applicants graduating each year from our law schools, this would not seem an insurmountable task. And because each federal judge has choice first-year positions to offer and has no need or ability to dicker on salary or …

Electronic Media Access To Federal Courtrooms: A Judicial Response, Laralyn M. Sasaki

University of Michigan Journal of Law Reform

This Note examines the ongoing electronic media access dispute and suggests methods to establish access. Because reform of current law would be implemented largely at the judicial "front lines"-the 700-plus U.S. district judges' courtrooms ---the concerns and desires of district judges are of primary importance to any proposed change. The survey documented an institutional resistance to an expanded media presence in federal courtrooms; this institutional inertia may be the strongest single reason that change has not occurred. Part I of this Note presents the federal rules, canons, and resolutions comprising the current prohibition against video and audio-equipment access, as well …

Judicial Discretion: Is One More Of A Good Thing Too Much?, David B. Sentelle

Michigan Law Review

A Review of Judicial Discretion by Aharon Barak

Concerned Readers V. Judicial Opinion Writers, Erik Paul Belt

University of Michigan Journal of Law Reform

In this action, Plaintiffs sought a writ of mandamus compelling the offending judges to write better, but the court below denied the writ. Plaintiffs then petitioned for relief from poor writing. Because some judges do, in fact, write clear and effective opinions, we have granted certiorari to resolve the differences between the various courts. The issue before us, then, is whether judges and clerks have abused their discretion by writing weak opinions and, if so, how they can improve their writing. Because stronger writing greatly eases the reader's job and makes opinions more effective, we hold that judges and clerks …

Judging The Judges: Three Opinions, James Boyd White

Articles

For some time I have been working on the problem of judicial criticism, focusing especially on the question: What is it in the work of a judge that leads us to admire a judicial opinion with the result of which we disagree, or to condemn an opinion that "comes out" the way we would do if we were charged with the responsibility of decision? The response I have been making is that this kind of judicial excellence (and its opposite too) lies in the sort of social and intellectual action in which the opinion engages: in the character the court …

The Supreme Court In Politics., Terrance Sandalow

Reviews

Despite all that has been written about the bitter struggle initiated by President Reagan's nomination of Robert Bork to a seat on the Supreme Court, its most remarkable feature, that it was waged over a judicial appointment, has drawn relatively little comment. Two hundred years after the Philadelphia Convention, Hamilton's "least dangerous" branch - least dangerous because it would have "no influence over either the sword or the purse, no direction either of the strength or the wealth of the society, and can take no active resolution whatever"'-had come to occupy so important a place in the nation's political life …

The Parable As Legal Scholarship, G. Edward White

Michigan Law Review

A Review of Two Jewish Justices: Outcasts in the Promised Land by Robert Burt

Precedent In Law, Erik G. Light

Michigan Law Review

A Review of Precedent in Law edited by Laurence Goldstein

Regulating Judicial Misconduct And Divining "Good Behavior" For Federal Judges, Harry T. Edwards

Michigan Law Review

In recent years, we have witnessed an unprecedented number of instances in which federal judges have been accused of criminal behavior and other serious acts of misconduct. This raises major concerns regarding the scope and enforcement of canons of conduct for members of the judicial branch. It would be presumptuous for anyone to suggest a complete understanding of the notion of "good behavior" for federal judges, or to claim a fully satisfactory prescription for the problem of "judicial misconduct." That is not my object. In reflecting on these issues, however, I have come to realize that I may not share …

Judge Posner's Jurisprudence Of Skepticism, Steven J. Burton

Michigan Law Review

This essay suggests that there is an instructive incompleteness in Judge Posner's transition from scientific observer to legal actor. His legal skepticism should be understood as a legacy of his days as an inquiring economist, observing and forming beliefs about law and the judicial process from the academy. His affirmation of judicial practices stems from his new respect for practical reason, which seems to result from the experience of performing judicial duties. This essay will argue that a more complete assimilation of the practical perspective of the legal actor would undercut Judge Posner's arguments for legal skepticism.

Practical Legal Studies And Critical Legal Studies, Jay M. Feinman

Michigan Law Review

The basic questions that Practical Legal Studies confronts are how judges decide cases and how judges should decide cases. The traditional analytic response to these questions has been that judges apply formal methods of legal reasoning, and the formal methods sufficiently comport with the courts' role in the political structure to provide legitimacy. That response has been untenable for a generation or more; thus PLS has moved to informal legal reasoning as a description of adjudication and as a source of legitimacy.

Posner presents a two-part response to the questions. First, judges can relatively easily arrive at the correct decision …

Law, Science, And History: Reflections Upon In The Best Interests Of The Child, Peggy C. Davis

Michigan Law Review

A Review of In the Best Interests of the Child by Joseph Goldstein, Anna Freud, Albert J. Solnit, and Sonja Goldstein

The Jurisprudence Of Skepticism, Richard A. Posner

Michigan Law Review

The skeptical vein in American thinking about law runs from Holmes to the legal realists to the critical legal studies movement, while behind Holmes stretches a European skeptical legal tradition that runs from Thrasymachus (in Plato's Republic) to Hobbes and Bentham and beyond. Against the skeptics can be arrayed a vast number of natural lawyers, legal conventionalists, and formalists, including Cicero, Coke, Blackstone, and Langdell, not to mention the majority of contemporary lawyers, judges, and law professors. This article will set forth and defend a moderately skeptical approach to law and judging, one not so far-reaching as that of …

Judicial Criticism, James Boyd White

Book Chapters

Today I shall talk about the criticism of judicial opinions, especially of constitutional opinions. This may at first seem to have rather little to do with our larger topic, "The Constitution and Human Values," but I hope that by the end I will be seen to be talking about that subject too. In fact I hope to show that in what I call our "criticism," our "values" are defined and made actual in most important ways.

I will begin with a double quotation. I recently heard my friend and colleague Alton Becker, who writes about language and culture, begin a …

Wade H. Mccree, Jr.: Born To Be A Judge, Pierce Lively

Michigan Law Review

A Tribute to Wade H. McCree, Jr.

In Defense Of The Constitution's Judicial Impeachment Standard, Melissa H. Maxman

Michigan Law Review

This Note explores the traditional interpretation of the Constitution's impeachment provisions in light of the demands of Judges Claiborne's, Nixon's, and Hastings' cases. Part I describes the signals indicating analytical shortcomings, and thus the need for reexamination of the provisions as currently construed. It shows that the troubling results of the recent standard allowing criminal prosecution before impeachment are apparent to both the courts and the Congress. Part II analyzes the meaning and purpose of the constitutional language, and the recent policy challenges to it. This part shows that, in fact, the impeachment provisions were carefully chosen by the Constitution's …

Wade H. Mccree, Jr., Sara Sun Beale

Michigan Law Review

A Tribute to Wade H. McCree, Jr.

Wade H. Mccree, Jr.: A Compassionate And Great Judge, Horace W. Gilmore

Michigan Law Review

A Tribute to Wade H. McCree, Jr.

A Tribute To Wade Mccree, Allan F. Smith

Michigan Law Review

A Tribute to Wade H. McCree, Jr.

The Quintessential Public Servant, Otis M. Smith

Michigan Law Review

A Tribute to Wade H. McCree, Jr.

Wade Mccree's Michigan Legacy, G. Mennen Williams

Michigan Law Review

A Tribute to Wade H. McCree, Jr.

Safeguarding The Litigant's Constitutional Right To A Fair And Impartial Forum: A Due Process Approach To Improprieties Arising From Judicial Campaign Contributions From Lawyers, Mark Andrew Grannis

Michigan Law Review

This Note will argue that the improprieties arising from some campaign contributions are so egregious that they offend the due process clause of the fourteenth amendment. Consequently, states must either reform judicial campaigns to eliminate such improprieties, or, through mandatory judicial recusal or disqualification, respect the absolute constitutional right to an impartial forum. Part I of this Note will examine the history of disqualification at common law and in American practice, focusing on the extent to which it has been held to be a requirement of due process. Part II will argue that under the applicable due process standards, a …

Dworkin's Domain, Philip E. Soper

Reviews

No one has done more in the last twenty years to revitalize debates about how judges should and do decide cases than Ronald Dworkin. At the same time, no one has been more equivocal than Dworkin in explaining how a theory of adjudication bears on the dispute within legal theory about the connection between law and morality. This fine book continues both traditions.