Judges Commons^™

Interpretive Divergence All The Way Down: A Response To Aaron-Andrew P. Bruhl And Ethan J. Leib, Elected Judges And Statutory Interpretation, 79 U Chi L Rev 1215 (2012), Anita S. Krishnakumar

Faculty Publications

This article is a response to the law review article cited in its title. It focuses on a corollary question raised by the article's analysis: if one takes seriously the proposition that it may make sense for elected judges to interpret statutes differently than do appointed judges, should judicial opinions written by elected judges look substantially different from those written by appointed judges? Part I examines the relative roles of judicial opinions written by elected versus appointed judges in a world in which divergence is practiced. Part II explores specific ways in which we might want or expect an elected …

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …

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

Faculty Scholarship

No abstract provided.

A Dynamic Model Of Doctrinal Choice, Scott Baker, Pauline Kim

Scholarship@WashULaw

This paper develops a repeated game model of the choice of doctrinal form by a higher court. Doctrine can take any point along a continuum from more determinate, rule-like legal commands to more flexible, standard-like directives. In deciding a case, the Supreme Court not only decides on a substantive outcome, but also chooses where on this continuum to set the doctrine. The lower court then applies the legal command to future cases. In doing so, it may wish to take into account new information, but the cost of doing so varies with the form of the legal doctrine. The model …

Supreme Court Prequel: Justice Stevens On The Seventh Circuit Symposium, Stefanie A. Lindquist

Scholarship@WashULaw

Justice Stevens’s retirement from the U.S. Supreme Court has occasioned numerous retrospectives on his lengthy career as a Supreme Court Justice. Yet Justice Stevens’s career began on the Seventh Circuit and his voting behavior and doctrinal positions on the circuit court provide a unique window into his judicial character and the roots of his thinking on important issues that continued to preoccupy him on the Supreme Court. In this Essay, I first analyze then-Judge Stevens’s voting behavior on the court of appeals by examining the frequency with which he wrote separate opinions, as well as his voting interagreement with his …

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

The Use Of Mediation As A Complement To The Integrated Domestic Violence Courts Of New York, Lauren K. Williams

Cardozo Journal of Conflict Resolution

In 2001, New York created the Integrated Domestic Violence Courts in order to more efficiently and more comprehensively address domestic violence cases. Domestic violence cases that were formerly spread out between two or three different courts can now be resolved in front of one judge. While this new court does minimize the hassle for the parties involved in the dispute and does eliminate inconsistent rulings by different judges in different courts, this new court structure does not address some problems that have existed with courts' approaches to resolving domestic violence. These problems include (1) that abusers can often afford to …

Beyond Caperton: “Public Confidence” In Courts And Close Relationships Between Judges And Jurors, Byron C. Lichstein

Catholic University Law Review

No abstract provided.

Humphrey’S Executor Squared: Free Enterprise Fund V. Public Company Accounting Oversight Board And Its Implications For Administrative Law Judges, Robert S. Garrison Jr.

Student Works

No abstract provided.

Lower Court Constitutionalism: Circuit Court Discretion In A Complex Adaptive System, Doni Gewirtzman

Articles & Chapters

While federal circuit courts play an essential role in defining what the Constitution means, one would never know it from looking at most constitutional scholarship. The bulk of constitutional theory sees judge-made constitutional law through a distorted lens, one that focuses solely on the Supreme Court with virtually no attention paid to other parts of the judicial hierarchy. On the rare occasions when circuit courts appear on the radar screen, they are treated either as megaphones for communicating the Supreme Court’s directives or as tools for implementing the theorist’s own interpretive agenda. Both approaches would homogenize the way circuit courts …

Law Review Scholarship In The Eyes Of The Twenty-First Century Supreme Court Justices: An Empirical Analysis, Brent Newton

Georgetown Law Faculty Publications and Other Works

An analysis of the twenty-first century Justices’ citations of law review scholarship—how often they cite articles, the professional identities of authors of the cited articles, and the rankings of the law reviews in which the cited articles appear—provides an excellent prism through which to assess today’s law reviews. In addition to having had varied and rich legal careers as practitioners, policy-makers, and lower court judges, the majority of the current Justices were, at earlier points in their careers, full-time law professors. Presumably, the Justices are able to separate the wheat from the chaff in the law reviews. The present study …

Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Publications

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.

Understanding The Value Of Judicial Diversity Through The Native American Lens, Paige E. Hoster

American Indian Law Review

No abstract provided.

A Tribute To The Honorable Carmen Beauchamp Ciparick, Penelope Andrews

Articles & Chapters

No abstract provided.

Justice Stevens's Black Leather Arm Chair, Kathryn A. Watts

Articles

As a law clerk to Justice Stevens in the October Term 2002, I felt that the very best part of the job came almost every afternoon. Without any advance warning, the Justice would get up from his desk and walk through chambers to the law clerks’ main office and plop down into a well-worn black leather arm chair that formed part of a cozy seating area flanked by tall bookshelves filled with volumes of case reporters and the United States Code.

As soon as the Justice started settling himself into his arm chair, my co-clerks and I all knew …

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Scholarly Works

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

"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" …

Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman

All Faculty Scholarship

This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups …

Beyond Saints And Sinners: Discretion And The Need For New Narratives In The U.S. Immigration System, Elizabeth Keyes

All Faculty Scholarship

Beyond Saints and Sinners examines the forces affecting the exercise of discretion in American immigration courts, and argues that in this present age of immigration anxiety, the same facts that place an individual in deportation proceedings may constitute the reasons a judge will, relying on discretion, deny them relief for which they are otherwise eligible. The article explores the polarized narratives told about "good" and "bad" immigrants, the exceptionally difficult task of adjudicating in overburdened immigration courts, and the ways in which these polarized narratives interact with psychological short-cuts, or heuristics, that affect judicial exercises of discretion. After engaging in …

Minor's Personal Injury Actions And Settlements In North Carolina, John M. Kirby

Campbell Law Review

This Article addresses the issues that are peculiar to claims of minors in North Carolina. Persons who are the age of majority prosecute and settle claims that raise numerous substantive and procedural issues. These issues can be compounded, however, when the claimant is a minor. The distinct issues that arise with a minor’s claim include: that a minor is often held to a different standard of conduct; that other persons are held to a higher or different standard of conduct toward a minor; that other persons may have a duty to protect the minor; that courts generally protect the interests …

Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

This Article empirically examines the question of whether courts of appeals judges cast ideological votes in the context of bankruptcy. The empirical study is unique insofar as it is the first to specifically examine the voting behavior of circuit court judges in bankruptcy cases. More importantly, it focuses on a particular type of dispute that arises in bankruptcy - debt-dischargeability determinations. The study implements this focused approach in order to reduce heterogeneity in result. We find, contrary to our hypotheses, no evidence that circuit court judges engage in ideological voting in bankruptcy cases. We do find, however, non-ideological factors - …

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 …

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 …

Can The Rule Of Law Survive Judicial Politics?, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Judicial Mindsets: The Social Psychology Of Implicit Theories And The Law, Victor D. Quintanilla

Articles by Maurer Faculty

This article introduces Dr. Carol Dweck’s seminal and significant line of psychological research on the phenomenon of implicit theories and draws on this research as a lens through which we might better understand judicial decision-making. In particular, the article focuses on the implications of two types of implicit theories – whether people believe that phenomena are static and fixed versus dynamic and malleable. By introducing this research, this article aims to forward a research agenda designed to examine how social, contextual, and situational forces influence judicial behavior.

An entity theory reflects the mindset that phenomena are fixed and unlikely to …

The Worst Supreme Court Case Ever? Identifying, Assessing, And Exploring Low Moments Of The High Court, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray

Articles & Chapters

Prosecutors, like mostAmericans, view the criminal-justice system asfundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices-and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors-contribute to the staggering and disproportionate incarceration of black Americans. In …