Judges Commons^™

Everything You Wanted To Know About Justice Scalia But Were Afraid To Ask, Or Don't Look Now But Justice Scalia's Originalism Approach Is Fatally Flawed, Arthur R. Landever

Law Faculty Presentations and Testimony

I do not deny Justice Scalia's valiant efforts to vote based upon his originalist principles. But both a justice and an observer are well advised to understand the implications of the culture surrounding the Supreme Court. Originalism, in assuming present culture plays little part, and in seeking to operate in a closed universe, distorts the reality of judicial decision-making, and to that extent, risks unsound constitutional interpretations.

Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which …

Issue 2: Annual Survey 2007 Table Of Contents

University of Richmond Law Review

No abstract provided.

Corporate And Business Law, Gregory R. Bishop, Laurence V. Parker

University of Richmond Law Review

In 2005, the Virginia Stock Corporation Act (the "Virginia Act") was extensively revised and updated for the first time since 1985. Having just undertaken such a major revision to the Virginia Act,

the General Assembly further amended the Act in a more targeted fashion in 2006 and 2007. Section II of this article addresses some of the changes that have taken place since the 2005 amendments and gives a brief overview of some conforming changes that have been incorporated in the Virginia Nonstock Corporation Act (the "Nonstock Act").

There has also been a concerted effort to conform the language and …

Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which …

Locating Authority In Law, And Avoiding The Authoritarianism Of 'Textualism', Patrick Mckinley Brennan

Working Paper Series

Much modern jurisprudence attempts to move the locus of authority away from people with authority in order to locate it instead, for example, in rules or texts. This article argues that authority, wherever it exists, is a quality of the actions of persons. The article mounts this argument by showing how Justice Scalia's textualism is the legal analogue of a largely discredited form of "Christian positivism," one that leads to a form of authoritarianism. The article goes on to argue that authorianism can be avoided only by individuals' and their communities' becoming authoritative, including in the making and enforcement of …

Twelve Prose Poems By Roger J. Traynor (With A Nod To Charles Baudelaire), Jon B. Eisenberg

The Journal of Appellate Practice and Process

No abstract provided.

Preface: Bringing Light To The Halls Of Shadow, Richard J. Peltz

The Journal of Appellate Practice and Process

No abstract provided.

Law & Politics: The Case Against Judicial Review Of Direct Democracy, Corey A. Johanningmeier

Indiana Law Journal

This Note argues against strong judicial review of direct democracy. Judicial review has been the dominant answer in legal scholarship for the perceived danger of majoritarian tyranny in any democratic system. But Progressive movements throughout American history, as well as a growing number of respected law professors, have questioned the assumption that courts or even legislatures are better protectors of discrete and insular minorities than the rights-respecting populace. Although the vast majority of legal scholarship still displays a crippling cynicism about popular competence, this view cannot continue to block progressives from participating in initiative campaigns. Exclusive resort to elitist procedural …

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

During his confirmation hearings. Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. Judges and Justices are servants of the law, not the other way around, he said. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire.

In this inquiry, I identify some tensions between the …

Embracing The Living Constitution: Justice Anthony M. Kennedy's Move Away From A Conservative Methodology Of Constitutional Interpretation, Lisa K. Parshall

North Carolina Central Law Review

No abstract provided.

Reforming The Supreme Court, Roger C. Cramton

Cornell Law Faculty Publications

Life tenure for Supreme Court Justices has had harmful consequences that could not have been foreseen by the Founders. The seriousness of these harms makes it necessary and proper to use the hindsight we enjoy today to correct them. This Article begins with a brief summary of the constitutional provisions relevant to judicial tenure and examines how the system of life tenure functions today. The harmful consequences of life tenure are then examined, leading to the conclusion that a statutory solution is required. The article then proposes such a solution and examines its constitutionality, concluding that language, history and purpose …

In Memoriam: Honourable Gerald Eric Le Dain, 1924-2007, Patrick J. Monahan, Harry W. Arthurs, Bruce B. Ryder

Osgoode Hall Law Journal

No abstract provided.

Native America And The Rule Of Law, Dr. Joe Shirley Jr.

University of Richmond Law Review

No abstract provided.

Memo To The President (And His Opponents): Ideology Still Counts, David A. Strauss

NULR Online

No abstract provided.

Civil Case Appellate Standards Of Review (And A Very Few Unavoidable Related Propositions Of Law), Updated And Revised (Current Through August 3, 2007), Alan G. Gless

State of Nebraska Judicial Branch

Why would a district court judge write about or revise an appellate court judge’s work on appellate standards of review and related propositions of law in civil cases? Well, two reasons – a change in legal mind set and fifteen years’ worth of changes in appellate practice. First, and foremost, when Judge Irwin collected in a single work his 1992 Standards of Review and Propositions of Law, Civil, he was the first in recent Nebraska legal history to do so. Those of us who have used his work owe him our thanks; his contribution was invaluable to both the bench …

New York Board Of Elections V. Torres: Brief Of Amici Curiae Law Professors Guy-Uriel E. Charles, Erwin Chemerinsky, Kareem Crayton, Steven P. Croley, Heather K. Gerken, Michael Kang, Ellen D. Katz, Ethan J. Leib, Michael Pitts, And Daniel P. Tokaji In Support Of Respondents, Ellen D. Katz

Appellate Briefs

The law professors named below teach and write about elections, voting rights, political parties, and electoral competition. Both basic and advanced law courses on voting and elections, as well as a wide range of scholarship on these subjects, regularly considers state authority to regulate conduct by political parties, candidates for office, and individual voters. Amici are among the many scholars who write and teach about the issues before the Court in this case.

Based on this expertise, and on careful review of this Court's decisions, amici argue in this brief that the nominating process the State of New York employs …

Supreme Court Of The United States, October Term 2007 Preview, Georgetown University Law Center, Supreme Court Institute, Rupal Doshi

Supreme Court Overviews

No abstract provided.

Letter To Clerk Of Court Re: Walter Roache & Peter Malley, Roger J. Miner '56

Correspondence

No abstract provided.

Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices "Evolve" And Others Don't?, Michael C. Dorf

Cornell Law Faculty Publications

Why do some Republican Supreme Court Justices evolve over time, becoming more liberal than they were - or at least more liberal than they were generally thought likely to be - when they were appointed, while others prove to be every bit as conservative as expected? Although idiosyncratic factors undoubtedly play some role, for every Republican nominee since President Nixon took office, federal executive branch service has been a reliable predictor. Nominees without it have proved moderate or liberal, while those with it have been steadfastly conservative.

This Essay demonstrates the correlation for all twelve Republican appointees during this period …

The Wait Is Over: Chevron As The Stealth Vermont Yankee Ii, Paul R. Verkuil

Articles

The article argues that the Chevron doctrine has effectively served as a means to moderate the hard-look review of agency rulemaking, rendering the anticipated Vermont Yankee II case unnecessary. It posits that Chevron's deference to agency interpretations of statutes has softened the impact of State Farm's stringent arbitrary-and-capricious review standard, aligning more closely with the judicial restraint envisioned by Vermont Yankee.

Slides: The Future Of Federal Wetlands Regulation, Mark Squillace

The Future of Federal Wetlands Regulation After Rapanos (May 10)

Presenter: Professor Mark Squillace, Director, Natural Resources Law Center, University of Colorado School of Law

35 slides

Agenda: The Future Of Federal Wetlands Regulation After Rapanos, University Of Colorado Boulder. Natural Resources Law Center

The Future of Federal Wetlands Regulation After Rapanos (May 10)

Hot-Topic Discussion held at Brownstein Hyatt Farber Schreck in Denver, Colorado on May 10, 2007 from 12:00 p.m. to 1:15 p.m.

Speaker: Mark Squillace, Director of the Natural Resources Law Center, University of Colorado School of Law.

Commentators: Wayne Forman and Michelle Kales, attorneys, Brownstein Hyatt Farber Schreck

"Rapanos v. United States, 547 U.S. 715 (2006), was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. It was the first major environmental case heard by the newly appointed Chief Justice, John Roberts and Associate Justice, Samuel Alito. The Supreme Court …

Issue 4: Symposium Table Of Contents

University of Richmond Law Review

No abstract provided.

Author Index

University of Richmond Law Review

No abstract provided.

Efforts To Improve The Illinois Capital Punishment System: Worth The Cost?, Thomas P. Sullivan

University of Richmond Law Review

No abstract provided.

Case Index

University of Richmond Law Review

No abstract provided.

Subject Index

University of Richmond Law Review

No abstract provided.

Title Index

University of Richmond Law Review

No abstract provided.

Judging Judges And Dispute Resolution Processes, John M. Lande

Faculty Publications

This article critiques Professor Chris Guthrie's lead symposium article entitled, "Misjudging." Guthrie's article makes two major arguments. The first is a descriptive, empirical argument that judges are prone to error because of three types of "blinders" and that people underestimate the amount of such judicial error. The second argument is prescriptive, recommending that, because of these judicial blinders, disputants should consider using non-judicial dispute resolution processes generally, and particularly facilitative mediation and arbitration.This article critiques both arguments. It notes that, although Guthrie presents evidence that judges do make the kinds of errors that he describes, his article does not address …