Judges Commons^™

The Politics Of Merit Selection, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In this Article, I undertake an evaluation of a method of judicial selection known as "merit selection." The merit system is distinctive from the other systems of judicial selection in the powerful role it accords lawyers. Proponents of the merit system contend that it is superior to the other forms of judicial selection -- elections or appointment by elected officials -- because lawyers are more likely to select judges on the basis of "merit" and less likely to select judges on the basis of "politics" (i.e., the personal ideological preferences of judicial candidates) than are voters or elected officials. But …

'Equal Citizenship Stature': Justice Ginsburg’S Constitutional Visionq, Neil S. Siegel

Faculty Scholarship

In this essay, Professor Siegel examines the nature and function of constitutional visions in the American constitutional order. He argues that Associate Justice Ruth Bader Ginsburg possesses such a vision and that her vision is defined by her oft-stated commitment to “full human stature,” to “equal citizenship stature.” He then defends Justice Ginsburg’s characteristically incremental and moderate approach to realizing her vision. He does so in part by establishing that President Barack Obama articulated a similar vision and approach in his Philadelphia speech on American race relations and illustrated its capacity to succeed during the 2008 presidential election.

Conflicts Between General Laws And Religious Norms, Dieter Grimm

Cardozo Law Review

No abstract provided.

Obama's Second Chance To Make History, José F. Anderson

All Faculty Scholarship

This short article provides a view of the circumstances and issues surrounding President Obama's nomination of federal circuit Judge Sonia Sotomayor to the U.S. Supreme Court.

With President Barack Obama's nomination of federal circuit Judge Sonia Sotomayor to the Supreme Court, his judicial appointment team has been presented with an early introduction to what has become one the most challenging areas of presidential governance over the last several decades.

The nominations to the nation's highest court have generated controversies going back to Ronald Reagan's failed attempt to elevate the highly controversial federal Judge Robert Bork to the court in the …

Letter To Clerk Of Court Re: Harold Harris, Roger J. Miner '56

Correspondence

No abstract provided.

The Swinging Pendulum Of Sentencing Reform: Political Actors Regulating District Court Discretion, Lydia Brashear Tiede

Brigham Young University Journal of Public Law

No abstract provided.

Chief William's Ghost: The Problematic Persistence Of The Duty To Sit, Jeffrey W. Stempel

Buffalo Law Review

No abstract provided.

Unmasking Judicial Extremism, Carl Tobias

University of Richmond Law Review

No abstract provided.

Issue 4: Table Of Contents

University of Richmond Law Review

No abstract provided.

Zero-Sum Judicial Elections: Balancing Free Speech And Impartiality Through Recusal Reform, David K. Stott

BYU Law Review

No abstract provided.

Fathers, Foreskins, And Family Law, Dena S. Davis

Law Faculty Articles and Essays

In the United States, a custodial parent has the right and responsibility to make medical decisions for one's child. But does that right encompass consenting for a surgical procedure for which there is little or no medical justification? What if the noncustodial parent opposed the procedure? And when is a child old enough to make the decision for him- or herself? How should a physician respond when asked to perform a surgical procedure when the decision is enmeshed in family controversy? These and other questions are considered in Boldt, a recent family law case decided by the Supreme Court of …

Judicial Discretion In Talmudic Times And The Modern Era, A. David Pardo

Cardozo Public Law, Policy & Ethics Journal

The article explores the concept of judicial discretion within the Talmud, particularly comparing the approaches of the Palestinian Talmud (Yerushalmi) and the Babylonian Talmud (Bavli). It highlights how the Yerushalmi adheres to a stricter, more unified interpretation of the Halakhah, while the Bavli adopts a more flexible approach, incorporating extralegal considerations and societal context. The analysis demonstrates that these differences reflect broader jurisprudential theories about the role of discretion in legal decision-making.

Religious Arguments And The United States Supreme Court: A Review Of Amicus Curiae Briefs Filed By Religious Organizations, Andrew S. Mansfield

Cardozo Public Law, Policy & Ethics Journal

The article examines the role of religious organizations in shaping legal arguments before the Supreme Court, particularly in cases involving morally charged issues. It highlights the tension between the Court's avoidance of explicit religious discussions in its decisions and the significant influence of religious amicus briefs. The analysis reveals two primary approaches: limiting religion's role in government and advocating for religion's active participation in public life to define a common good. The Court's silence on religious matters contrasts with the substantial religious arguments presented in briefs, which often emphasize ethical and legal perspectives rooted in religious beliefs.

The "Hidden Judiciary": An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.

Remaking The United States Supreme Court In The Courts' Of Appeals Image, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.

Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Extraordinary Rendition: A Wrong Without A Right, Robert Johnson

University of Richmond Law Review

No abstract provided.

Neglected Justices: Discounting For History, G. Edward White

Vanderbilt Law Review

The category of "neglected Justices" presupposes meaningful baselines for evaluating judicial reputations. A Justice cannot be deemed "neglected" except against the backdrop of some purported consensus about that Justice's reputation and the reputations of other Justices. Moreover, when the category of "neglected Justices" encompasses the performance of Justices who served in different time periods, it also presupposes that evaluative baselines for Justices can retain their integrity in the face of historical change and historical contingency.

This Article argues that when one discounts for history in the process of evaluating judicial reputations, the effects of history are sufficiently powerful to throw …

Does Unconscious Racial Bias Affect Trial Judges?, Chris Guthrie, Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton

William & Mary Law Review

No abstract provided.

William Johnson, The Dog That Did Not Bark?, Mark R. Killenbeck

Vanderbilt Law Review

The conventional wisdom is that Justice William Johnson, Jr., was the "the first dissenter." This is not literally true. The first published opinion of the Court was Georgia v. Brailsford, in which each member of the Court expressed his views seriatim. Ironically, the first to speak was the first Justice Johnson, Thomas of Maryland, whose reasoning helped create a 4-2 split that produced a number of Supreme Court firsts: the first published set of opinions, the first split decision, and the first dissent.

It was the "other" Justice Johnson, William of South Carolina, who earned the reputation as the first …

Brief Of The Conference Of Chief Justices As Amicus Curiae In Support Of Neither Party, Caperton V. A.T. Massey Coal Co., No. 08-22 (U.S. Jan. 5, 2009), Roy A. Schotland

U.S. Supreme Court Briefs

No abstract provided.

Here Comes The Judge! Gender Distortion On Tv Reality Court Shows, Taunya Lovell Banks

Faculty Scholarship

In the judicial world of television court shows women constitute a majority of the judges and where non-white women and men dominate. In real life most judges are white and male. This essay looks at the gender and racial composition and demeanor of these television reality judges. It asks whether women TV reality judges behave differently from their male counterparts and whether women’s increased visibility as judges on daytime reality court shows reinforces or diminishes traditional negative stereotypes about women, especially non-white women.

Isaiah And His Young Disciples: Justice Brandeis And His Law Clerks, Todd C. Peppers

Scholarly Articles

It cannot be said that Louis Dembitz Brandeis has suffered from a lack of scholarly attention. Brandeis is considered to be one of the most influential Justices in the history of the U.S. Supreme Court, and scores of books and law-review articles have been written about Brandeis the lawyer, the political insider, the Zionist, and the Justice. A case can be made, however, that history has not fully recognized the important and lasting contribution that Brandeis made to the development of the institutional rules and norms surrounding the Supreme Court law clerk, an oversight that this essay seeks to rectify.

The Role Of Courts Vis-À-Vis Legislatures In The Same-Sex Marriage Context: Sexual Orientation As A Suspect Classification, Ingrid M. Lofgren

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Rule Of Law Is Dead! Long Live The Rule Of Law!, Keith J. Bybee

College of Law - Faculty Scholarship

Polls show that a significant proportion of the public considers judges to be political. This result holds whether Americans are asked about Supreme Court justices, federal judges, state judges, or judges in general. At the same time, a large majority of the public also believes that judges are fair and impartial arbiters, and this belief also applies across the board. In this paper, I consider what this half-law-half-politics understanding of the courts means for judicial legitimacy and the public confidence on which that legitimacy rests. Drawing on the Legal Realists, and particularly on the work of Thurman Arnold, I argue …

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

Articles

No abstract provided.

Showcase Panel Ii: Judicial Tenure: Life Tenure Or Fixed Non-Renewable Terms?, Hon. J. Harvie Wilkinson Iii, Stephen B. Burbank, Hon. Charles J. Cooper, James Lindgren, David R. Stras

Barry Law Review

No abstract provided.

Case Interpretation, Shawn J. Bayern

Scholarly Publications

This Article develops an approach to constructing the meaning of prior court cases that is more helpful than formalistic, conventional distinctions between concepts like "holdings" and "dicta." Instead of trying to classify judicial announcements into fixed categories, courts should engage in a broader interpretive inquiry when confronting prior cases. Determining what a judicial opinion stands for requires determining the intent that motivated the opinion, as carefully understood in light of the factual and argumentative context that gave rise to it.

Under this view of precedent, binding common law arises in large part from principles explicated after considering facts. Viewing precedent …