Judges Commons^™

Making Judicial Recusal More Rigorous, James J. Sample, David Pozen

Faculty Scholarship

The right to an impartial arbiter is the bedrock of due process. Yet litigants in most state courts face judges subject to election and reelection – and therefore to majoritarian political pressures that would appear to undermine the judges' impartiality. This tension has existed for as long as judges have been elected (and, to some extent, for as long as they have been appointed, in which case campaigns often take a less public but equally politicized form).

In recent years, however, this tension has become more acute. Today, state courts around the country increasingly resemble – and are increasingly perceived …

The Best Defense: Why Elected Courts Should Lead Recusal Reform, Deborah Goldberg, James J. Sample, David Pozen

Faculty Scholarship

In recent years, we have seen an escalation of attacks on the independence of the judiciary. Government officials and citizens who have been upset by the substance of judicial decisions are increasingly seeking to rein in the courts by limiting their jurisdiction over controversial matters, soliciting pre-election commitments from judicial candidates, and drafting ballot initiatives with sanctions for judges who make unpopular rulings. Many of these efforts betray ignorance at best, or defiance at worst, of traditional principles of separation of powers and constitutional protections against tyranny of the majority.

The attacks are fueled in part by the growing influence …

Federal Court Self-Preservation And Terri Schiavo, Jack M. Beermann

Faculty Scholarship

If the federal court in Florida had granted preliminary relief to allow itself more time to consider the constitutional claims that Terri Schiavo's parents brought on her behalf, and if, as expected, those claims were ultimately rejected, the federal court would have been placed in the unenviable position of having to be the institution that made the final decision to terminate Terri Schiavo's feeding and other treatment. Although I have no way of knowing whether this fact, which has not been noted in the commentary,' actually entered into the mind of any of the federal judges who considered the case, …

Symposium: The Role Of The Judge In The Twenty-First Century: Introduction, Eva Nilsen

Faculty Scholarship

The contents of this special issue of the Boston University Law Review are the product of a symposium on "The Role of the Judge in the Twenty-First Century," held on April 21st and 22nd, 2006 at the Boston University School of Law. The symposium presented a rare opportunity for a distinguished group of federal judges and academics to exchange ideas about some of the most pressing and controversial subjects facing the courts. Over the course of two days, panelists explored a number of ongoing challenges to the judiciary, including threats to judicial independence, national security imperatives, exploding caseloads, increasing reliance …

In Praise Of Contextuality - Justice O'Connor And The Establishment Clause, Marie Failinger

Faculty Scholarship

Among Justice Sandra Day O’Connor’s lasting contributions to Supreme Court Jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government in assessing its constitutionality. Typical of this contributor has been her two decades of work in Establishment Clause law, in particular, ended by Lynch v. Donnelly, in which she introduced the “non-endorsement” test and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union, in which it was most recently employed. The non-endorsement test has served as one of the two commonly competing …

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

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

Faculty Scholarship

No abstract provided.

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 …

Judges As "Amateur Scientists", David L. Faigman

Faculty Scholarship

No abstract provided.

Indecent Standards: The Case Of U.S. Versus Weldon Angelos, Eva Nilsen

Faculty Scholarship

In today's highly punitive culture, perhaps Weldon Angelos' fifty-five-year sentence does not seem unusual. He's a 25-year-old man who was convicted in December 2003 of selling marijuana, possessing firearms while drug dealing, and money laundering. ³ The facts proven at trial are that on three occasions in June and July, 2002, Angelos sold eight one-ounce bags of marijuana for $350 each to a government informant. ⁴ The purchaser testified that a firearm was visible during two of these drug sales.⁵ Police seized another gun from Angelos' home five months later pursuant to a warrant.⁶ At no time was …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a …

An Independent Judiciary: The Life And Writings Of Robert N.C. Nix, Jr., Phoebe A. Haddon

Faculty Scholarship

No abstract provided.

Jewish Law: Deciphering The Code By Global Process And Analogy, Donna Litman

Faculty Scholarship

No abstract provided.

Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

No abstract provided.

Can Good Judges Be Good Politician? Judicial Elections From A Virtue Ethics Approach, Marie Failinger

Faculty Scholarship

In this article, the author argues that it is only possible to determine whether judges are likely to be good judges if we understand the practice of judging and the telos of justice toward which its aims, and that elections cannot help voters determine what qualities are necessary in judges and for what reasons. Moreover, I argue that traditional elections require virtues in politicians which are not often found in good (virtuous) judges, making them an unsuitable way of selecting candidates.

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

Faculty Scholarship

No abstract provided.

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

The (Non)Uniqueness Of Environmental Law, Jay D. Wexler

Faculty Scholarship

In everyday discourse, the label "environmental law" signifies a distinct and unique area of the law. The uniqueness of environmental law stems most obviously from the subject matter of environmental legislation and regulation. But does environmental law also differ from other areas of law with respect to how judges ought to approach deciding cases? Should judges act differently somehow when they are deciding an environmental law case as opposed to, for example, a labor law or banking law case? At least one influential scholar - Richard Lazarus of the Georgetown University Law Center - has argued that the distinctive features …

Disappearing Dilemmas: Judicial Construction Of Ethical Choice As Strategic Behavior In The Criminal Defense Context, Manuel Berrélez, Jamal Greene, Bryan Leach

Faculty Scholarship

Imagine the following scenario: A criminal defense attorney represents a man accused of kidnapping and murdering two children in a residential neighborhood. During the course of interviewing key witnesses, the defense attorney becomes convinced that her client was present at the scene of the murder. While her client denies having been present, his alibi changes entirely from one interview to the next. The two main witnesses that the client offers to Corroborate his most recent alibi recant, suggesting to the defense attorney that both they and the defendant were actually present at the scene of the crime. Third parties confirm …

Originalism, Stare Decisis And The Promotion Of Judicial Restraint, Thomas W. Merrill

Faculty Scholarship

If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic debate about originalism versus stare decisis, as if they were rival modes of interpretation that could operate to the exclusion of the other. But the question of practical importance is one of degree and emphasis: in cases where these two sources of authority arguably point in different directions, which one should have a greater claim to our allegiance?

Originalism – interpreting …

Virtuous Judges And Electoral Politics: A Contradiction?, Marie Failinger

Faculty Scholarship

Judge Thomas J. Spargo serves as a fascinating poster-child in the debate on what’s wrong (or right) with judicial elections. Judge Spargo, campaigning for re-election as Justice of the Berne Town Court in upstate New York, was accused of “failing to observe the high standards of conduct” expected as a judge because he handed out doughnuts to voters. Judge Spargo’s case and others illustrate that popular debates about the merits of judicial elections versus judicial selection commissions have probably been mis-focused on two “second-order questions rather than concentrating on “first-order” concerns in judicial selection. This article discusses these questions and …

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 …

A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan's Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli

Faculty Scholarship

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the …

Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney

Faculty Scholarship

This article contributes to an ongoing debate about the feasibility and desirability of measuring the merit of appellate judges - and their consequent Supreme Court potential - by using objective performance variables. Relying on the provocative and controversial tournament criteria proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the Supreme Court potential of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two …

The Judicial Function: Justice Between The Parties, Or A Broader Public Interest?, Richard Zitrin

Faculty Scholarship

No abstract provided.

Speech And Strife, Robert L. Tsai

Faculty Scholarship

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation …

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law deciding the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence," that category of evidence that purports to illustrate other evidence rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional …

Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault

Faculty Scholarship

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters …