Judges Commons^™

Kennedy And The Prisons—Moral Exhortation And Technical Fastidiousness, Robert Weisberg

McGeorge Law Review

No abstract provided.

Justice Kennedy’S Sixth Amendment Pragmatism, Stephanos Bibas

McGeorge Law Review

No abstract provided.

The Property Jurisprudence Of Justice Kennedy, John G. Sprankling

McGeorge Law Review

No abstract provided.

Justice Kennedy’S Jurisprudence On The First Amendment Religion Clauses, R. Randall Kelso

McGeorge Law Review

No abstract provided.

There’S A Whole World Out There: Justice Kennedy’S Use Of International Sources, Stephen C. Mccaffrey

McGeorge Law Review

No abstract provided.

Speech, Brian S. Harvey

Journal of Business & Technology Law

No abstract provided.

Why Cant We Be Friends Preserving Public Confidence In The Judiciary Through Limited Use Of Social Networking, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

The Second Circuit’S En Banc Crisis, Mario Lucero

Cardozo Law Review de•novo

Part I of this Note is an empirical survey of the history of the en banc practice in the Second Circuit. First is an explanation of the en banc process and an examination of the hearings en banc that did take place and their outcomes in the Supreme Court. Second is a discussion of the mini en banc, which is the practice of circulating opinions that serves as an abbreviated substitute for full en banc hearings. Third is an examination of the myriad opinions that have been inspired by the denials of rehearing en banc, with special attention to the …

Dealing With The Appellate Caseload Crisis: The Report Of The Federal Courts Study Committee Revisited, Roger J. Miner '56

Federal Court System and Administration

No abstract provided.

How Well Do Measures Of Judicial Ability Translate Into Performance?, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

Diverse measures are used as proxies for judicial ability, ranging from the college and law school a judge attended to the rate at which her decisions are cited by other judges. Yet there has been little serious examination of which of these ability measures is better or worse at predicting the quality of judicial performance—including the management and disposition of cases. In this article, we attempt to evaluate these measures of ability by examining a rich group of performance indicators. Our innovation is to derive performance measures from judicial decisions other than case outcomes (which are inherently difficult to evaluate): …

Judicial Attention As A Scarce Resource: A Preliminary Defense Of How Judges Allocate Time Across Cases In The Federal Courts Of Appeals, Marin K. Levy

Faculty Scholarship

Federal appellate judges no longer have the time to hear argument and draft opinions in all of their cases. The average annual filing per active judgeship now stands at 330 filed cases per year — more than four times what it was sixty years ago. In response, judges have adopted case management strategies that effectively involve spending significantly less time on certain classes of cases than on others. Various scholars have decried this state of affairs, suggesting that the courts have created a “bifurcated” system of justice with “separate and unequal tracks.” These reformers propose altering the relevant constraints of …

The Politics Of Statutory Interpretation, Margaret H. Lemos

Faculty Scholarship

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …

Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney

Faculty Scholarship

This Article contends that ordinary meaning analysis based on dictionaries and language canons cannot be reconciled with the faithful agent model. Fidelity to Congress as a principal entails fidelity to its lawmaking enterprise, not to words or sentences divorced from that enterprise. Congress has indicated that it does not value dictionaries as part of its lawmaking process, and it ascribes at most limited weight to language canons in that process. Further, Justices advocating ordinary meaning analysis too often use dictionary definitions, and language canons such as the rule against surplusage, the whole act rule, and ejusdem generis, in ways that …

Heuristics, Cognitive Biases, And Accountability: Decision-Making In Dependency Court, Matthew I. Fraidin

Journal Articles

On tens of thousands of occasions each year, state court judges wrongly separate children from their families and place them in foster care. And while a child is in foster care, judges are called on to render hundreds of decisions affecting every aspect of the child’s life. This Article uses insights from social psychology research to analyze the environment of dependency court and to recommend changes that will improve decisions. Research indicates that decision makers aware at the time they make a decision that they will be called upon later to explain it may engage in a systematic, deliberate decision-making …

Minding The Court: Enhancing The Decision-Making Process, Pamela Casey, Kevin Burke, Steve Leben

Faculty Works

A compelling and growing body of research from the fields of cognitive psychology and neuroscience provides important insights about how we process information and make decisions. This research has great potential significance for judges, who spend much of their time making decisions of great importance to others. For most judges, this research literature is not part of their judicial education. This article reviews cutting edge research about decision making and discusses its implications for helping judges and those who work with them produce fair processes and just outcomes. It builds on a 2007 American Judges Association paper that encouraged judges …

Affirmative Action, Justice Kennedy, And The Virtues Of The Middle Ground, Allen K. Rostron

Faculty Works

When the Supreme Court hears arguments this fall about the constitutionality of affirmative action policies at the University of Texas, attention will be focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and an equally solid cadre of four conservatives, the spotlight regularly falls on Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decision-making. Though he is often decisive in the sense of casting …

Supreme Court Leaks And Recusals: A Response To Professor Steven Lubet’S Scotus Ethics In The Wake Of Nfib V. Sebelius, 47 Val. U. L. Rev. 925 (2013), Kevin Hopkins

UIC Law Open Access Faculty Scholarship

As Professor Steven Lubet notes in his article, Stonewalling, Leaks, and Counter-Leaks: SCOTUS Ethics in the Wake of NFIB v. Sebelius, the ethical conduct of Supreme Court Justices has once again gained national attention. This time, however, the context for public outcry is due to actions of an in-house source who released confidential information to a member of the press concerning the voting behavior and the overall sentiments of members of the Court's minority in one of the most significant and controversial rulings of the year: NFIB v. Sebelius (the "Affordable Care Act"). Professor Lubet uses this leaking of significant …

Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Arbitration And The Future Of Delaware's Corporate Law Franchise, Brian Jm Quinn

Cardozo Journal of Conflict Resolution

On September 9, 2011, Skyworks Solutions, Inc. ("Skyworks") and Advanced Analogic Technologies Incorporation ("AATI") entered into a merger agreement. The agreement included an uncommon provision with respect to dispute resolution. In part, that provision stated, "the parties hereto agree that any and all disputes arising under or related in any way to this Agreement or the Transactions shall be resolved solely in arbitration before the Court of Chancery of the State of Delaware. " Until AATI later sought specific performance of the merger agreement via arbitration pursuant to that provision, little notice had been paid by outside observers to the …

The Law And Science Of Video Game Violence: What Was Lost In Translation?, 31 Cardozo Arts & Ent. L.J. 297 (2013), William K. Ford

UIC Law Open Access Faculty Scholarship

"[A]s a general rule," writes Pulitzer Prize-winning journalist Edward Humes, "courts don't do science very well."' Susan Haack, a professor of law and philosophy, elaborates on why this may be true, offering several reasons for "deep tensions" between science and law. The reasons offered by Haack may be less of a concern where the dispute involves litigation against the government on significant questions of public policy. Recent decisions assessing the constitutionality of laws restricting minors' access to violent video games therefore offer an opportunity to examine how well the courts handled scientific evidence in a situation lacking some of the …

The Reappearing Judge, Steven S. Gensler, Lee Rosenthal

Faculty Articles

No abstract provided.

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

Scholarly Articles in Law Reviews & Journals

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

Book Review: "Taking Law Seriously" A Review Of Reading Law: The Interpretation Of Legal Texts, By Antonin Scalia And Bryan A. Garner, David F. Forte

Law Faculty Articles and Essays

No abstract provided.

The Sky Is Falling (Again): Evaluating The Current Funding Crisis In The Judiciary, Donald E. Campbell

Journal Articles

This Article will consider the current crisis in a broad historical context. This larger narrative can provide a helpful perspective in the current debate. It offers a glimpse into how we came to the current system and allows us to question our assumptions regarding the way the system currently works. Historical context is an important (and under-discussed) aspect of this crisis. As the leaders of the bench and bar come together to evaluate changes to the current system, the discussion should begin with understanding how the system evolved to where it is now and with appreciating the fact that the …

A Tale Of Two Dauberts, Julie A. Seaman

Georgia Law Review

Under the Federal Rules of Evidence and Supreme
Court precedent, a single standard ostensibly governs the
admissibility of scientific and other expert evidence in
criminal and civil cases. Although Georgia has recently
become the forty-fourth state to adopt the Federal Rules of
Evidence, it has declined to adopt Daubert for criminal
cases and has retained the prior, more lenient, standard.
While many commentators view this approach as perverse,
this Article considers the possible virtues not only of
explicitly applying a separate rule to scientific evidence in
criminal cases but also of applying a less stringent rule to
such evidence. Based …

Justice Brennan: Legacy Of A Champion, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

The Role Of The Judge In Non-Class Settlement, Howard M. Erichson

Faculty Scholarship

This commentary argues that judges lack the authority, as a general matter, to approve or reject non-class settlements. While judges overseeing mass litigation can set the stage for settlement by instituting phased discovery, scheduling bellwether trials, and other methods, they should respect the line between facilitation of settlement and control over settlement terms. The paper was presented in response to Judge Alvin Hellerstein’s and his special masters' account of their handling of the September 11 clean-up litigation.

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.

Antitrust And The Judicial Virtues, Daniel A. Crane

Articles

Although commentators frequently debate how judges should decide antitrust cases substantively, little attention has been paid to theories of judicial virtue in antitrust decision making. This essay considers four pairings of virtues: (1) striving for substantive purity versus conceding to institutional realism; (2) incrementalism versus generalism; (3) presenting a unified face versus candidly conceding differences among judges on an appellate panel; and (4) adhering strictly to stare decisis versus freely updating precedents to reflect evolving economic learning or conditions. While recognizing the complexities that sometimes pull judges in the opposite direction, this Article gives the nod to institutional realism, incrementalism, …

Senate Gridlock And Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

One crucial locus of gridlock is appointments to the United States Courts of Appeals, which have grown extremely contentious, as the circuits resolve disputes about controversial issues and can effectively be tribunals of last resort for designated areas. Continuous Republican and Democratic charges, recriminations, and divisiveness have roiled the process for decades. The bench constitutes 179 judgeships; however, seventeen remained vacant at President Barack Obama's second inauguration notwithstanding his pledge to end the "confirmation wars" by assiduously consulting senators. Laboring without ten percent of the appellate court members subverts prompt, inexpensive and fair case disposition and undermines citizen respect for …