Judges Commons^™

Bringing A World Of Light To Technology And Judicial Ethics, David Hricik

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The Luddites thought that by smashing machines in early 19th Century England, they could eliminate the threat that those machines presented to them. Of course, they were wrong. As was the case during the Luddites’ time, technology continues to march inexorably onward in today’s society. As a result, those within the legal community—judges in particular—have no choice but to begin using technology. Although judges are currently using technology, they sometimes do so without understanding what they are doing.

Already, today’s “new-fangled” contraptions have ensnared judges. Perhaps the most widely known example is Judge Kozinski of the United States Court of …

Pivoting To Progressivism: Justice Stephen J. Chadwick, The Washington Supreme Court And Change In Early Twentieth Century Judicial Reasoning And Rhetoric, Hugh D. Spitzer

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Relatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century in a period when the United States Supreme Court often overturned reform measures on constitutional grounds. In contrast, between 1910 and 1913, the Washington State Supreme Court rapidly changed its doctrinal analysis and its stance on judicial deference to elected lawmakers, aligning the state’s constitutional law with the public’s new views on the responsibility of government in addressing social and economic challenges. A fascinating window on the progressive period and changes in judicial reasoning and rhetoric is provided …

The Controversy Over Citations To Foreign Authorities In American Constitutional Adjudication And The Conflict Of Judicial Philosophies: A Reply To Professor Glendon, Michel Rosenfeld

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The controversy over U.S. Supreme Court justices citing foreign authorities in constitutional cases reflects a deeper ideological divide between restrictive and expansive judicial philosophies. This debate, evident in cases like Lawrence v. Texas and Roper v. Simmons, transcends traditional labels like originalism or political ideology, focusing instead on whether judges should defer to majoritarian decisionmaking or actively shape evolving rights. The article argues that the furor over foreign citations will diminish once the broader philosophical clash over judicial interpretation is resolved, as differences over foreign authorities are secondary to this central divide.

The Courts And National Security: The Ordeal Of The State Secrets Privilege, David Rudenstine

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The state secrets privilege, originally established in United States v. Reynolds, has evolved into a powerful tool for the Executive to shield actions from judicial scrutiny, undermining the rule of law and constitutional checks and balances. This expansion, driven by judicial deference and circuit court interpretations, now prioritizes national security over accountability, threatening core legal principles. The article argues for reform to balance national security concerns with judicial oversight and individual rights.

Self-Government And The Judicial Function, David Rudenstine

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No abstract provided.

What Would Congress Want? If We Want To Know, Why Not Ask?, Danieli Evans

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Judges often disagree about which interpretation of a statute is most faithful to 'legislative intent.' If judges are concerned about adhering to democratic preferences when interpreting statutes, why not ask Congress what it would prefer? I propose a procedure that would enable the Court, in a case where Justices are divided over the meaning of a statute, to submit both sides' reasoning to Congress, and Congress may choose to vote on its preferred of the alternative rulings the Court puts before it. Congress's preferences would be evidentiary only; they would not bind the Court to make one decision or another. …

Antitrust And The Judicial Virtues, Daniel A. Crane

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Although commentators frequently debate how judges should decide antitrust cases substantively, little attention has been paid to theories of judicial virtue in antitrust decision making. This essay considers four pairings of virtues: (1) striving for substantive purity versus conceding to institutional realism; (2) incrementalism versus generalism; (3) presenting a unified face versus candidly conceding differences among judges on an appellate panel; and (4) adhering strictly to stare decisis versus freely updating precedents to reflect evolving economic learning or conditions. While recognizing the complexities that sometimes pull judges in the opposite direction, this Article gives the nod to institutional realism, incrementalism, …

On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi

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In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising throughout the post-arrest justice process, extending beyond the …

Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi

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This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference …

Judges And Their Papers, Kathryn A. Watts

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Who should own a federal judge’s papers?

This question has rarely been asked. Instead, it has generally been accepted that the Justices of the U.S. Supreme Court and other federal judges own their working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues such as abortion and flag burning. In contrast, …

Notice-And-Comment Sentencing, Richard A. Bierschbach, Stephanos Bibas

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The article argues that criminal sentencing, often perceived as a singular, justice-focused moment, is in reality a complex, fragmented process heavily influenced by prosecutorial discretion and plea bargaining. It contends that public participation, inspired by principles of administrative law, could enhance the fairness, transparency, and legitimacy of sentencing and related processes, such as charging and plea bargaining. By integrating public input and structured decision-making, the criminal justice system could better align with democratic values and address systemic disparities.

The Loss Of Constitutional Faith: Mccleskey V. Kemp And The Dark Side Of Procedure, Scott E. Sundby

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No abstract provided.

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

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There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

Justice Stevens's Black Leather Arm Chair, Kathryn A. Watts

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As a law clerk to Justice Stevens in the October Term 2002, I felt that the very best part of the job came almost every afternoon. Without any advance warning, the Justice would get up from his desk and walk through chambers to the law clerks’ main office and plop down into a well-worn black leather arm chair that formed part of a cozy seating area flanked by tall bookshelves filled with volumes of case reporters and the United States Code.

As soon as the Justice started settling himself into his arm chair, my co-clerks and I all knew …

The Endorsement Factor, Marci A. Hamilton

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No abstract provided.

Lies, Damned Lies, And Judicial Empathy, Mary Anne Franks

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No abstract provided.

Tribute: Dores Mccrary Mccree, David L. Chambers

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Dores McCree made your day a little better whenever she walked into a room. When you talked with her, you knew her goal was simply to enjoy your company, not to get something out of you, and not to show herself off. She was good at talking and good at listening. She'd cock her head slightly and ask questions to which she really cared about the answers. On more than one occasion, I had to jockey with others to be able to sit with her at a dinner.

Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard

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To outsiders, securities law is not all that interesting. The body of the law consists of an interconnecting web of statutes and regulations that fit together in ways that are decidedly counter-intuitive. Securities law rivals tax law in its reputation for complexity and dreariness. Worse yet, the subject regulated-capital markets-can be mystifying to those uninitiated in modem finance. Moreover, those markets rapidly evolve, continually increasing their complexity. If you do not understand how the financial markets work, it is hard to understand how securities law affects those markets.

The Supreme Court And The Push For Transparency In Lower Court Appointments In Japan, Daniel H. Foote

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The theme of this symposium issue is ―Decision Making on the Japanese Supreme Court.‖ From that title, readers understandably might assume the focus is squarely on decisions in judicial cases. Yet, as Lawrence Repeta observes in his Article for this issue, the Japanese Supreme Court bears responsibility for another major category of decision making: judicial administration.1 One vitally important aspect of judicial administration for which the Supreme Court bears primary responsibility is the selection of lower court judges, together with personnel management of judges (including decisions on promotions and transfers, which are a standard element of Japan’s career judiciary).2 The …

Specters Of Law: Why The History Of The Legal Spectacle Has Not Been Written, Peter Goodrich

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The article examines the intersection of law, theology, and visual/performance elements, arguing that legal discourse often overlooks the significance of typography, imagery, and theatricality. It highlights how legal texts use formatting techniques like bold and italics to convey meaning and draws parallels with theological concepts, such as the duality of power and the role of images in governance. The analysis critiques the legal tradition for neglecting these performative aspects and emphasizes the need to recognize law as a theater that denies its own theatricality.

Constitutional Expectations, Richard A. Primus

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The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

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When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts

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During the past three decades, one Supreme Court justice— John Paul Stevens—has authored two of the most significant administrative law decisions that speak to the judiciary’s role in checking agency interpretations of the statutes that they administer. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., Justice Stevens’s landmark 1984 decision unanimously upheld the EPA’s construction of a term found in the Clean Air Act. Subsequently, in Massachusetts v. EPA, Justice Stevens’s 2007 opinion for a five-justice majority handed a major win to global environmental security by ordering the EPA to reconsider its refusal to regulate greenhouse …

The Reluctant Tattletale: Closing The Gap In Federal Judicial Discipline, David Pimentel

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No abstract provided.

Reframing The Independence V. Accountability Debate: Defining Judicial Structure In Light Of Judges' Courage And Integrity, David Pimentel

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No abstract provided.

What's Left Of Solidarity? Reflections On Law, Race, And Labor History, Martha R. Mahoney

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No abstract provided.

Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane

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Judges will tell you that they are comparatively poor rate regulators. The specialized, technical competence and supervisory capacity that public utilities commissions enjoy are usually absent from judicial chambers. Nonetheless, when granting antitrust remedies-particularly remedies for monopolistic abuse of intellectual property-courts sometimes purport to act as rate regulators for the licensing or sale of the defendant's assets. At the outset, we should distinguish between two forms ofjudicial rate setting. In one form, a court (or the FTC in its adjudicative capacity) grants a compulsory license and sets a specific rate as part of a final judgment or an order. The …

From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz

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In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the U.S. Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder. Among its many surprises, NAMUDNO helps illuminate the Court’s fundamental error nine years ago. Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified …

Limits Of Interpretivism, Richard A. Primus

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Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.

How Should We Study District Judge Decision-Making?, Pauline T. Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin

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Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. The choices available to judges are determined not only by the law and facts of the case but also by procedural context. The incentives and constraints shaping judges’ decision-making will vary depending on, for example, whether they have a life-appointment or are elected; whether they hear cases alone or with colleagues; and whether and under what circumstances their decisions might be altered, overturned, or undone by the actions of others. The basic insight that the institutional context matters has led to increasingly sophisticated studies of how …