Judges Commons^™

The Importance Of Building Fires: Lessons Learned As A Judge On The United States Court Of Appeals For The Armed Forces, James E. Baker

The Journal of Appellate Practice and Process

No abstract provided.

Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco

Articles & Book Chapters

The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …

The Forms And Limits Of Judicial Inquiry: Judges As Inquiry Commissioners In Canada And Australia, Grant R. Hoole

Dalhousie Law Journal

In both Canada and Australia the conduct ofpublic inquiries draws heavily from the expertise of the legal profession, with judges frequently serving as commissioners and inquiry hearings often reproducing the popular imagery of a courtroom. Despite this affinity between public inquiries and the legal profession, however, jurisprudential and academic authorities repeatedly stress that public inquiries are non-adjudicative. Indeed, the received wisdom is that the investigative focus of public inquiries justifies their divergence from the procedural and substantive commitments of adjudication. This paper challenges that assumption. It argues that the service of judges as inquiry commissioners should be premised on their …

Hiring Supreme Court Law Clerks: Probing The Ideological Linkage Between Judges And Justices, Lawrence Baum

Marquette Law Review

Since the 1970s, the overwhelming majority of Supreme Court law clerks have had prior experience clerking in lower courts, primarily the federal courts of appeals. Throughout that period, there has been a tendency for Justices to take clerks from lower court judges who share the Justices’ ideological tendencies, in what can be called an ideological linkage between judges and Justices in the selection of law clerks. However, that tendency became considerably stronger between the 1970s and 1990s, and it has remained very strong since the 1990s.

This Article probes the sources of that alteration in the Justices’ selection of law …

Law Clerks As Advisors: A Look At The Blackmun Papers, Zachary Wallander, Sara C. Benesh

Marquette Law Review

The Justices of the United States Supreme Court seek advice, by way of cert pool memos, when making their consequential agenda-setting decisions. There is some debate over the extent to which these law clerks actually influence the Justices. Focusing on the certiorari stage and on the information and advice provided to the Court via the cert pool memos, we ascertain the extent to which the contents of the memos drive the decision making of the Court. We find that information about conflict, amici, and the position of the United States does indeed influence the Court’s votes, but also that the …

Advice From The Bench (Memo): Clerk Influence On Supreme Court Oral Arguments, Timothy R. Johnson, David R. Stras, Ryan C. Black

Marquette Law Review

Scholars of the U.S. Supreme Court have long debated the role, and possible influence, of clerks on the decisions their Justices make. In this Paper, we take a novel approach to analyze this phenomenon. We utilize pre-oral argument bench memos sent to Justice Harry A. Blackmun from his clerks. Specifically, we use these memos to determine whether Justice Blackmun asked questions of counsel that were recommended by his clerks in the memos. Our data indicate Justice Blackmun often followed his clerks’ advice. Accordingly, we provide another important link to demonstrate Supreme Court clerks can and do affect how their Justices …

Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon

Marquette Law Review

This Essay highlights the evolving institutional changes in the federal judiciary—a protracted confirmation process, higher caseload demands, and declining real salaries—in concurrence with evidence suggesting greater reliance by judges on their law clerks when writing opinions. These dynamic forces arguably undermine the integrity of the judicial process and counsel for legislative action to address judicial working conditions or for changes by judges in the hiring of law clerks.

Keynote Address: Secret Agents: Using Law Clerks Effectively, David R. Stras

Marquette Law Review

Recent scholarship discusses the role of law clerks and their role in influencing the courts on which they work. This Keynote Address discusses the nuts and bolts of law clerks, including how they are selected, what role they play on various courts, and their potential opportunities for influence.

Judging In The Age Of Technology, Fredric I. Lederer

Popular Media

No abstract provided.

The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff

William & Mary Law Review

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is …

Robert Bork & Commercial Speech, Jonathan H. Adler

Faculty Publications

Before he redefined antitrust, Judge Robert Bork took aim at the First Amendment. Though his work in this area was not nearly as influential, it received substantial attention, particularly after President Ronald Reagan nominated Judge Bork to replace Justice Lewis Powell on the Supreme Court in 1987. Judge Bork's 1971 article, Neutral Principles and Some First Amendment Problems challenged the prevailing wisdom on the proper scope of First Amendment protections. In this article, published seven years before The Antitrust Paradox, Bork maintained that only "explicitly political" speech warranted constitutional protection. Other types of speech or expression, including much indisputably …

Revising Civil Rule 56: Judge Mark R. Kravitz And The Rules Enabling Act, Edward H. Cooper

Articles

This contribution uses the history of amending Federal Rule of Civil Procedure 56, “Summary Judgment,” to pay tribute to Mark R. Kravitz and to the Rules Enabling Act process itself. The three central examples involve discretion to deny summary judgment despite the lack of a genuine dispute as to any material fact, the choice whether to prescribe a detailed “point–counterpoint” procedure for presenting and opposing the motion, and the effect of failure to respond to a motion in one of the modes prescribed by the rule. These topics are intrinsically important. The ways in which the Civil Rules Advisory Committee …

International Norms In Constitutional Law, Michael Wells

Georgia Journal of International & Comparative Law

No abstract provided.

The Use Of International Sources In Constitutional Opinion, Daniel Bodansky

Georgia Journal of International & Comparative Law

No abstract provided.

All In The Family: The Influence Of Social Networks On Dispute Processing (A Case Study Of A Developing Economy), Manuel A. Gómez

Georgia Journal of International & Comparative Law

No abstract provided.

Judicial Diversity After Shelby County V. Holder, William Roth

Michigan Law Review First Impressions

In 2014, voters in ten of the fifteen states previously covered by the Voting Rights Act ("VRA") preclearance formula-including six of the nine states covered in their entirety-will go to the polls to elect or retain state supreme court justices. Yet despite the endemic underrepresentation of minorities on state benches and the judiciary's traditional role in fighting discrimination, scholars have seemingly paid little attention to how Shelby County v. Holder's suspension of the coverage formula in section 4(b) has left racial minorities vulnerable to retrogressive changes to judicial-election laws. The first election year following Shelby County thus provides a compelling …

Is Resistance To Foreign Law Rooted In Racism?, Sheldon Bernard Lyke

NULR Online

No abstract provided.

Shame, Angry Judges, And The Social Media Effect, Maxine D. Goodman

Catholic University Law Review

No abstract provided.

Buying Time? False Assumptions About Abusive Appeals, Michael Kagan, Fatma Marouf, Rebecca Gill

Catholic University Law Review

No abstract provided.

The Way The Court Gauges Consensus (And How To Do It Better), Robert J. Smith, Bidish J. Sarma, Sophie Cull

Cardozo Law Review

The Supreme Court gauges whether a national consensus against a punishment exists by reference to a number of objective indicators. Despite its reliance on these external indicators, scholars have characterized the Court's consensus analysis as little more than a crude charade performed by outcome-oriented Justices. The consensus analysis does lack both transparency and a stable infrastructure, but as this Article demonstrates, commentators are too quick to overlook the possibility that a stable and tightly theorized framework could equip the Court to gauge societal consensus and reduce the perception that the analysis is outcome-driven.

When it comes to consensus analysis, the …

Open Chambers: Demystifying The Inner Workings And Culture Of The Georgia Court Of Appeals, Stephen Louis A. Dillard

Mercer Law Review

I vividly remember the day I learned of my appointment to the Georgia Court of Appeals. I was sitting in my cluttered but comfortable office, preparing for what would ultimately be my last hearing as a lawyer, when the phone rang. On the other end of the line was Governor Sonny Perdue's executive assistant: "Mr. Dillard, do you have time to speak with the governor?" I did, of course. And less than two weeks after that brief but life-changing conversation with Governor Perdue, I was one of Georgia's two newly appointed appellate judges (and the seventy-third judge to serve on …

Personal Is Political For Roberts Court, Eric J. Segall

Faculty Publications By Year

No abstract provided.

Following Lower-Court Precedent, Aaron-Andrew P. Bruhl

Faculty Publications

This Article examines the role of lower-court precedent in the US Supreme Court’s decisions. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, this Article analyzes a variety of potential reasons …

Naalj Membership Application And Questionnaire, Alice Won

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Fixing Disability Courts, D. Randall Frye

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Hearing Examiners And The Administrative Procedure Act, 1937-1960, Joanna L. Grisinger

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Dred Scott: A Nightmare For The Originalists, Sol Wachtler

Touro Law Review

No abstract provided.

Federalism, Diversity, Equality, And Article Iii Judges: Geography, Identity, And Bias, Sharon E. Rush

UF Law Faculty Publications

Each individual has a background, and that background shapes the individual’s views about life, creating an inevitable form of bias referred to as “experiential bias.” Experiential bias is shaped by many identity traits, including, among others, race, sex, sexual orientation, religion and even geography. The geographic identity of state judges and their potential unfair experiential bias is the common justification for federal court diversity jurisdiction. But experiential bias is inescapable, affecting everyone who's ever had an experience, and is generally not unfair, as demonstrated by most studies regarding the "fairness" justification for diversity jurisdiction. More recently, Justice O’Connor connected racial …

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

53rd Henry J. Miller Distinguished Lecture Series, The Hon. Justice John Paul Stevens

Georgia State University Law Review

Remarks by the Honorable John Paul Stevens, Retired Associate Justice of the Supreme Court of the United States, at the 53rd Henry J. Miller Distinguished Lecture Series.