Judges Commons^™

Comment On Frederick Schauer's Prediction And Particularity, Gerald F. Leonard

Faculty Scholarship

Ignorance of the law is generally no excuse. I say generally because the century since the publication of The Path of the Law has brought a small but increasing number of exceptions to the rule. In Oliver Wendell Holmes's day, however, exceptions to the rule were nearly nonexistent, much to Holmes's satisfaction. In The Common Law, Holmes said that the law requires persons "at their peril to know the teachings of common experience, just as it requires them to know the law."  He did not, of course, actually think that common experience was perfectly knowable or judicial interpretation perfectly predictable, …

The Justice Who Wouldn't Be Lutheran: Toward Borrowing The Wisdom Of Faith Traditions, Marie Failinger

Faculty Scholarship

Although many authors have debated the propriety of the use of religious arguments in public policy discussions and lawmaking, few have critically reviewed the jurisprudence of particular judges through the lens of their own faith-traditions. Preliminarily, this article attempts a modest contribution to the discussion about the use of religious argument in public discussions by suggesting that judicial opinions should be viewed rhetorically and that religious assumptions and claims may legitimately be "borrowed" analogically into such opinions, at least their forensic and epideictic elements. More concretely, it analyzes themes in some of Justice William Rehnquist's opinions to determine how consistent …

Multiracial Discourse: Racial Classifications In An Era Of Color-Blind Jurisprudence, Tanya K. Hernandez

Faculty Scholarship

This Article analyzes the widespread legal ramifications of the Multiracial Category Movement (MCM) and assesses whether the MCM's proposal effectively advances its stated goal of promoting racial equality. After analyzing the legal import of multiracial discourse, the Article determines that the MCM misperception of race and its fluidity inadvertently furthers the progression of color-blind jurisprudence in direct contravention of the MCM goal of promoting racial equality. Part I provides background and identifies the motivating forces behind the MCM as a color-blind movement. Part II critiques the MCM for its adverse effects upon racial justice efforts in furthering the manner in …

Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler

Faculty Scholarship

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to …

Of Labor Law And Dissonance Colloquy, James J. Brudney

Faculty Scholarship

What accounts for the dissonance between the meaning of our national labor law, as decreed primarily by federal judges, and the social and economic realities of workplace relationships addressed by that law? In his darkly eloquent commentary, Professor Getman acknowledges that such dissonance is not unique to the law governing labor-management relations. Yet the courts' often mistrustful approach toward employee rights under the National Labor Relations Act ( NLRA" or "Act") has had a special impact. The NLRA emerged at a time of social turbulence, and was based on a recognized need to redress the fundamental inequality of bargaining power …

William J. Brennan, Jr., Peter L. Strauss

Faculty Scholarship

When I was privileged to be Justice Brennan's law clerk, he had not yet earned even from his own law school the affection and respect that have prompted the editors of this law review, and doubtless many others, to offer an issue in dedication to him. In the three decades following, he made his claim to both unmistakably clear. His extraordinary tenure on the Court produced 1360 opinions, spread over the last 146 of the Court's first 497 volumes. Nearly a decade after his retirement, it is probably still the case that more opinions in constitutional law teaching materials carry …

Studying Deck Chairs On The Titanic, William L. Reynolds, William M. Richman

Faculty Scholarship

No abstract provided.

Elitism, Expediency, And The New Certiorari: Requiem For The Learned Hand Tradition, William M. Richman, William L. Reynolds

Faculty Scholarship

No abstract provided.

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …

Rosalie Wahl: Her Extraordinary Contributions To Legal Education, James F. Hogg

Faculty Scholarship

Justice Rosalie Wahl is well-known as the first woman to be appointed to the Minnesota Supreme Court, but she has made a lesser known, yet critical, contribution to the quality and effectiveness of legal education in this country. As chair of the American Bar Association's Section on Legal Education and Admissions to the Bar, Wahl created the MacCrate Commission. The MacCrate Report charts the way for improvement in law school teaching and learning, and the discussion following the report lead to the creation of an ABA Commission to take testimony and review the ABA Accreditation Standards. Wahl also chaired this …

A Tribute To Anne Simonett, Edward Toussaint

Faculty Scholarship

Tribute to Judge Anne Simonett, from Judge Edward Toussaint, Chief Judge of the Minnesota Court of Appeals.

Politcs And The Courts: A Positive Theory Of Judicial Doctrine And The Rule Of Law, Mathew D. Mccubbins, Roger G. Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.

Thinking To Be Paid Versus Being Paid To Think, Merritt B. Fox

Faculty Scholarship

In the first chapter of The Economic Structure of Corporate Law, Frank Easterbrook and Daniel Fischel make an arresting statement:

... [P]eople who are backing their beliefs with cash are correct; they have every reason to avoid mistakes, while critics (be they academics or regulators) are rewarded for novel rather than accurate beliefs. Market professionals who estimate these things wrongly suffer directly; academics and regulators who estimate wrongly do not pay a similar penalty. Persons who wager with their own money may be wrong, but they are less likely to be wrong than are academics and regulators, who are wagering …

Chief Justice Rehnquist, Pluralist Theory, And The Interpretation Of Statutes, Thomas W. Merrill

Faculty Scholarship

Chief Justice William H. Rehnquist is often viewed as the ultimate "political" judge. According to Mark Tushnet, for example, "[o]ne could account for perhaps ninety percent of Chief Justice Rehnquist' s bottom-line results by looking, not at anything in the United States Reports, but rather at the platforms of the Republican Party." Nowhere is this attitude more prevalent than with respect to issues of statutory interpretation. When I informed colleagues I was working on an article about Chief Justice Rehnquist's theory of statutory interpretation, the almost universal response was: "What theory?"

Contrary to the common view that Chief Justice Rehnquist …

Rediscovering Conservatism: Burkean Political Theory & Constitutional Interpretation, Ernest A. Young

Faculty Scholarship

Recent decisions of the Rehnquist Court--particularly the Court's 1992 decision in Planned Parenthood v. Casey--have caused many to question widely-held assumptions about the meaning of judicial conservatism. In this article, Ernest Young argues that the views of the modern judicial "conservatives" such as Judge Robert Bork and Justice Antonin Scalia are antithetical to classical conservative political theory, as exemplified by the writings and speeches of the eighteenth-century British philosopher/politician Edmund Burke. In particular, Mr. Young argues that strict adherence to the original understanding of the Constitution, judicial deference to democratic majorities, and formulation of legal directives as bright-line rules are …

Summaries Of Justice Raymond L. Sullivan's Majority Opinions On The Supreme Court Of California, Marsha N. Cohen

Faculty Scholarship

No abstract provided.

Introduction, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Parading Ourselves: Freedom Of Speech At The Feast Of St. Patrick, Larry Yackle

Faculty Scholarship

Three things are true. First, American society is now absorbed in yet another great civil rights movement, this one on behalf of gay, lesbian, and ambisexual citizens, which will lead ineluctably to the elimination of legal burdens on the basis of sexual orientation.' Change will come slowly, with much backing and filling, and at an awful price measured in human pain. Intolerance for the homosexualities that exist among us, and the homosexual behavior in which many of us engage, will persist in quarters where the law cannot reach.2 Yet private homophobia, deprived of legal sanction, will ultimately be discredited and …

Judicial Vacancies And Delay In The Federal Courts: An Empirical Evaluation, In Symposium, The Civil Justice Reform Act, A. Kimberley Dayton

Faculty Scholarship

This Article examines the relationship between federal district court judicial vacancies --whether caused by the executive branch's failure to timely nominate judges, Congress's failure to confirm presidential nominees, or some other reason -- and delays in processing the civil caseload. The hypotheses tested are several configurations of the hypothesis “judicial vacancies cause delay.” The statistical method of analysis of covariance is used to test this hypothesis and thereby evaluate the degree to which delays, defined by reference to certain case management statistics, are correlated to vacancy rates in individual federal district courts, and within the federal system as a whole. …

Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski

Faculty Scholarship

Three weeks before he died in May 1873, the frail and ailing Salmon P. Chase joined three of his brethren in dissent in one of the most important cases ever decided by the United States Supreme Court, the Slaughter-House Cases.1 This decision was a watershed in United States constitutional history for several reasons. Doctrinally, it represented a rejection of the virtually unanimous decisions of the lower federal courts upholding the constitutionality of revolutionary federal civil rights laws enacted in the aftermath of the Civil War. Institutionally, it was an example of extraordinary judicial activism in overriding the legislative will of …

Women Judges And Better Justice For All, John D. Feerick

Faculty Scholarship

According to the most recent report of The New York Judicial Committee on Women in the Courts, published in October 1992, out of a total of 1,129 judges, only 183 are female. It is clear women are under-represented in the judiciary. Decisive action is required in order to increase opportunities for women to become judges. In January 1992, Governor Cuomo's Task Force on Judicial Diversity ("the Task Force") issued its report. The Task Force strongly supported diversity and set forth compelling reasons why a diverse bench is in the public interest. The report reminded us that "diversity is vital because …

Judicial Opinions As Binding Law And As Explanations For Judgments, Thomas W. Merrill

Faculty Scholarship

To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: "judicial supremacy" and "departmentalism." In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the "holdings" of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the …

Enslaved To Judicial Supremacy?, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Case Management In The Eastern District Of Virginia, In Symposium, Civil Litigation In The 1990'S, Part Ii, A. Kimberley Dayton

Faculty Scholarship

Part I of this Article describes the administrative structure of the Eastern District of Virginia and its case management practices. Part II demonstrates that, despite the Eastern District of Virginia's status as one of the busiest federal district courts, it has consistently been one of the most efficient and effective federal courts in the nation. As a result, in Part III, this Article concludes that the experience of the Eastern District of Virginia raises many questions about the premises underlying the Civil Justice Reform Act, the proposed amendments to the Federal Rules, and the means by which Congress and the …

Revisiting Overton Park: Political And Judicial Controls Over Administrative Actions Affecting The Community, Peter L. Strauss

Faculty Scholarship

Overton Park is a 342-acre municipal park lying close to downtown Memphis, Tennessee, in one of that city's better residential areas. Citizens to Preserve Overton Park, Inc. v. Volpe is a Supreme Court decision frequently cited for its general propositions about judicial review of informal administrative action that, to the citizens of Memphis, was one way-station in a more than two-decade struggle concerning whether and where an inner-city expressway, part of Interstate 40, would be built. Overall, the story of that struggle reveals a complex brew of national and local politics about the marriage of highway convenience to urban amenity; …

The Judicial Prerogative, Thomas W. Merrill

Faculty Scholarship

In John Locke's account of separation of powers, the executive is not limited to enforcing the rules laid down by the legislature. The chief magistrate also exercises the prerogative, a power "to act according to discretion for the public good, without the prescription of the law and sometimes even against it. "Locke explained that such a discretionary power is required because "it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigor on …

A Tribute To Peter S. Popovich, James F. Hogg

Faculty Scholarship

A tribute to Peter S. Popovich, Chief Justice of the Minnesota Supreme Court 1989-1990 and William Mitchell College of Law alumni.

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

Faculty Scholarship

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

Legal Process And Judges In The Real World, Peter L. Strauss

Faculty Scholarship

It is gratifying, reading through a paper and noting here and there points that you might like to make, to find that by the end the author has anticipated them and made them well. This paper sneaks up on you. If at the outset it seems to be accepting that Justice Scalia has a jurisprudence of statutory interpretation that coheres and restrains, by the end it has shown the self-contradictions and decidedly political and institutional stakes in the textualist position the Justice appears to have been carving out for himself.

I am not going to address Professor Zeppos's account of …

Justice Brennan, Peter L. Strauss

Faculty Scholarship

The editors of the St. John's Law Review have given me the boon of a few pages in which to celebrate Justice Brennan with you. The problem for a former law clerk, for anyone who has known this man, is to know where to begin, and how to keep the appreciation within manageable compass.