Judges Commons^™

The Role Of The Judge In Non-Class Settlement, Howard M. Erichson

Faculty Scholarship

This commentary argues that judges lack the authority, as a general matter, to approve or reject non-class settlements. While judges overseeing mass litigation can set the stage for settlement by instituting phased discovery, scheduling bellwether trials, and other methods, they should respect the line between facilitation of settlement and control over settlement terms. The paper was presented in response to Judge Alvin Hellerstein’s and his special masters' account of their handling of the September 11 clean-up litigation.

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.

Simplifying The Standard Of Review In North Carolina Administrative Appeals, Sarah H. Ludington

Faculty Scholarship

No abstract provided.

More Law Than Politics: The Chief, The “Mandate,” Legality, And Statesmanship, Neil S. Siegel

Faculty Scholarship

This chapter in a forthcoming book on NFIB v. Sebelius asks whether the various parts of Chief Justice Roberts’s opinion on the minimum coverage provision are legally justifiable. I focus on what Roberts decided, not why he decided it that way.

Law is fully adequate to explain the Chief Justice’s vote to uphold the minimum coverage provision as within the scope of Congress’s tax power. Roberts embraced the soundest constitutional understanding of the Taxing Clause. He also showed fidelity to the law by applying—and not just giving lip service to—the deeply entrenched presumption of constitutionality that judges are supposed to …

Legitimacy And Lawmaking: A Tale Of Three International Courts, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

This article explores the relationship between the legitimacy of international courts and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the European Court of Justice (ECJ), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The ECJ is the most activist, but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more …

Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum

Faculty Scholarship

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …

Localist Statutory Interpretation, Ethan J. Leib

Faculty Scholarship

This paper argues for more attention to citizens’ point of contact with our legal system within local courts – and makes an effort to conceptualize local judges as parts of local governments. Once the paper highlights the role of local courts within the constellation of local government, it offers an argument for why certain forms of "localist judging" are appropriate postures for local judges to take when confronted with hard cases of statutory interpretation. The paper explores the virtues of a type of "intrastate judicial federalism."

In The Absence Of Scrutiny: Narratives Of Probable Cause, Mitu Gulati, Jack Knight, David F. Levi

Faculty Scholarship

This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the "good faith" exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not …

Jewish Identity And Judging: Seymour Simon Of Illinois, Jack M. Beermann

Faculty Scholarship

Illinois Supreme Court Justice Seymour F. Simon (1915-2006) would have filled the stereotype of the righteous man in Jewish lore. He was a man of principle, communicated those principles in an insistent tone to anyone who would listen, worked hard to further the cause of justice and earned a reputation as a committed public servant. Justice Simon served as Justice of the Illinois Supreme Court from 1980-1988 after having served on the Illinois Appellate Court from 1974-1980. Before winning election to the courts, Justice Simon was a politician, serving, inter alia, as an alderman in the City of Chicago and …

A Conversation With Justice Ruth Bader Ginsburg, Ruth Bader Ginsburg, Gillian E. Metzger, Abbe Gluck

Faculty Scholarship

Professor Gillian Metzger: Katherine, thank you for that wonderful overview of all that the Justice has achieved and the history of Columbia Law School. And I want to apologize for those to whom I am showing my back, but this will allow us to have more of a conversation with the Justice.

Justice, thank you so much for being with us today. It is a real privilege for us to get to talk to you this way, and we know for the entire audience. You have had – as you have now heard (LAUGHS) – an amazing and just tremendously …

The Pre-Session Recess, Peter L. Strauss

Faculty Scholarship

In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama made to …

The Lay Of The Land: Examining The Three Opinions In J. Mcintyre Machinery, Ltd. V. Nicastro, Adam N. Steinman

Faculty Scholarship

It was a long time coming. The Supreme Court's decisions last Term in J. McIntyre Machinery, Ltd. v. Nicastro and Goodyear Dunlop Tires Operations, S.A. v. Brown ended a two-decade high-court hiatus from the subject of personal jurisdiction. In McIntyre, the more controversial of the two, the Court concludes that New Jersey state courts lacked jurisdiction over a British manufacturer in a suit by a New Jersey plaintiff who was injured in New Jersey by a machine purchased by his New Jersey employer. McIntyre lacks a majority opinion, however. Instead we have a four-Justice plurality authored by Justice Kennedy, a …

Modern Odysseus Or Classic Fraud - Fourteen Years In Prison For Civil Contempt Without A Jury Trial, Judicial Power Without Limitation, And An Examination Of The Failure Of Due Process, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Touched By Greatness, Shruti Rana

Faculty Scholarship

No abstract provided.

Legal Ethics For The Millennials Avoiding The Compromise Of Integrity, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Standing The Test Of Time: The Breadth Of Majority Coalitions And The Fate Of U.S. Supreme Court Precedents, Stuart M. Benjamin, Bruce A. Desmarais

Faculty Scholarship

Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding …

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Faculty Scholarship

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …

The Meaning Of Mcintyre, Adam N. Steinman

Faculty Scholarship

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as …

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

Evaluating And Improving The Mdl Process, Francis Mcgovern, John G. Heyburn

Faculty Scholarship

No abstract provided.

Introduction, Paul Finkelman

Faculty Scholarship

No abstract provided.

The Micro And Macro Causes Of Prison Growth, John F. Pfaff

Faculty Scholarship

No abstract provided.

"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss

Faculty Scholarship

This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of "allocation." Because the term "deference" muddles rather than clarifies the structure's operation, this Essay avoids speaking of "Chevron deference" and "Skidmore deference." Rather, it argues, one could more profitably think in terms of "Chevron space" and "Skidmore weight." "Chevron space" denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints – that is, its allocated authority. "Skidmore weight" …

Sonia Sotomayor And The Construction Of Merit, Guy-Uriel Charles, Daniel L. Chen, Mitu Gulati

Faculty Scholarship

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such …

Do Female “Firsts” Still Matter?: Why They Do For Women Of Color, Amber Shanahan-Fricke, Angela Onwuachi-Willig

Faculty Scholarship

This Article argues that diversifying the federal judiciary with more women and men of color, but particularly with more women of color, is essential to moving forward and strengthening this country’s democracy. Specifically, this Article responds to arguments by prominent feminists that having female “firsts” on the bench is not as critical as having the “right” women on the bench—“right” meaning those women who are invested in and supportive of what are traditionally viewed as women’s issues. In so responding, this Article acknowledges the appeal of such arguments regarding judicial service from the “right” women, but contends that, while achieving …

Courthouse Iconography And Chayesian Judical Practice, William H. Simon

Faculty Scholarship

Judith Resnik and Dennis Curtis emphasize in Representing Justice that the traditional iconography of courthouses is incongruent with the current practices of the institutions that inhabit them. The key elements of traditional iconography – the blindfolded, scale-balancing Justitia and the courtroom configured for the trial – connote adjudication. Yet, the fraction of judicial work that involves deciding cases on the merits or conducting trials has decreased dramatically. Most judicial work today is basically managerial.

We could reduce this incongruity, on the one hand, by reviving the practical adjudicatory focus of the past or, on the other, by revising the iconography …

Share Transfer Restrictions In Close Corporations As Mechanisms For Intelligible Corporate Outcomes, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove, Adam N. Steinman

Faculty Scholarship

The intersection of federalism and class-action litigation has been an area of significant controversy in recent years. With the 2005 Class Action Fairness Act placing more high-stakes class actions into federal court, an especially crucial question is the extent to which the Erie doctrine and the Rules Enabling Act (REA) require federal courts to follow state class-action law. The Supreme Court’s decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co. begins to confront this issue, but many unanswered questions remain. Under several lines of argument that were neither made nor considered in Shady Grove, the Erie doctrine and the …