Judges Commons^™

The Rise And Fall Of Bad Judge: Lady Justice Is No Tramp, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

Scholarly Articles in Law Reviews & Journals

The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …

Of Judges, Law, And The River: Tacit Knowledge And The Judicial Role, Chad M. Oldfather

Journal of Dispute Resolution

“What does it mean to be a judge?” That’s a tall order, and one is tempted to begin—and perhaps to end—by formulating taxonomy of characteristics that judges ought to have. Indeed, that is a tactic that others have used. The resulting lists differ in their particulars, but are broadly similar. The enumerated traits include attributes like intelligence, legal knowledge, judgment, decisiveness, and so on.

Addressing Three Problems In Commentary On Catholics At The Supreme Court By Reference To Three Decades Of Catholic Bishops' Amicus Briefs, Kevin C. Walsh

Law Faculty Publications

Much commentary about Catholic Justices serving on the Supreme Court suffers from three related shortcomings: (1) episodic, one-case-at-a-time commentary; (2) asymmetric causal attributions resulting from inattention to cases in which Catholic Justices vote for outcomes opposite those advocated by the Catholic Bishops' Conference; and (3) inattention to broader jurisprudential and ideological factors. This article uses an overlooked resource to identify and counteract these shortcomings. It assesses the votes of the Justices-Catholic and non-Catholic alike-in the full set of cases from the Rehnquist Court and the Roberts Court (through June 2014) in which the United States Conference of Catholic Bishops filed …

Marriage Equality Comes To Virginia, Carl W. Tobias

Law Faculty Publications

Part I of this article chronicles marriage equality's rise and development nationally. It ascertains that challenges, which fos- tered the invalidation of marriage prohibitions that essentially govern nearly all jurisdictions, including Virginia, have triggered some controversy. Part II scrutinizes Judge Wright Allen's resolu- tion of the Virginia litigation and the United States Court of Ap- peals for the Fourth Circuit determination, which affirmed her ruling. This portion finds that the district jurist comprehensively assessed the relevant legal and factual issues when striking down the proscription while the Fourth Circuit appropriately upheld her opinion. Part III then derives lessons from the …

Our Unconstitutional Recusal Procedure, Dmitry Bam

Faculty Publications

In this article, I argue that the recusal procedure used in state and federal courts for nearly all of American history is unconstitutional. For centuries, recusal procedure in the United States has largely resembled that of England before American independence. To this day, in most American courtrooms, the judge hearing the case decides whether recusal is required under the applicable substantive recusal rules. If the judge determines that she can act impartially, or that her impartiality could not reasonably be questioned, the judge remains on the case. And although the judge’s decision is typically subject to appellate review — with …

Remarks: Caperton's Next Generation -- Beyond The Bank, Dmitry Bam

Faculty Publications

On November 14, 2014, a symposium entitled, "Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton," was held at New York University. The symposium was sponsored by the Brennan Center for Justice, the American Bar Association's Center for Professional Responsibility, and NYU's Journal of Legislation and Public Policy. This document contains the transcript starting from Dmitry Bam's remarks from one of the four panels, and is entitled "Caperton's Next Generation: Beyond the Bank." The panel members included Professors Jed Shugerman, Debra Lyn Bassett, Gregory S. Parks, Dmitry Bam, and Rex Perschbacher.

Unspringing The Witness Memory And Demeanor Trap: What Every Judge And Juror Needs To Know About Cognitive Psychology And Witness Credibility, Mark W. Bennett

American University Law Review

The soul of America's civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses' memories and the effect of the witnesses' demeanor on their credibility. Almost all jurisdictions' pattern jury instructions about witness credibility explain nothing about how a witness's memories for events and conversations work-and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness's "memory" with no additional guidance. Similarly, the same pattern …

Get Out From Under Your Overcoat, Jeanne J. Graham

William Mitchell Law Review

No abstract provided.

Judicial Selection In Congress’ Lame Duck Session, Carl W. Tobias

Indiana Law Journal

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

Law Faculty Articles and Essays

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.

In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in …

The Jekyll And Hyde Of First Amendment Limits On The Regulation Of Judicial Campaign Speech, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Local Judges And Local Government, Ethan J. Leib

Faculty Scholarship

This interview-based empirical study explores how local judges view themselves and their crosscutting roles in local and state government. In particular, it considers local judges’ relationships with the public that elects them, the executive and legislative branches of their localities, and the larger statewide judicial bureaucracy of which they are a very large but somewhat disconnected part. The Article reports on the results of interviews with local judges at the county, town, and village levels — and suggests some broader lessons for scholars, officials, and policymakers interested and active in local government law and politics. Those who study local government …

High Court Pretense, Lower Court Candor: Judicial Impartiality After Capterton V. Massey Coal Co., Lynne H. Rambo

Faculty Scholarship

Apolitical, impartial judging has always been our judicial ideal. In the last twenty years, however, special interest groups have sought power over (and through) judges by pouring millions into judicial elections, and the Court has recognized their first amendment right to do so. In the midst of this politicization of judicial elections, the Court five years ago reinforced the impartiality ideal, holding very broadly in Caperton v. Massey Coal Co. that it violates due process for a judge to sit whenever there is a “probability of bias,” i.e., whenever the average judge is unlikely to be neutral. Caperton involved a …

When Disciplines Collide: Polygamy And The Social Sciences On Trial, Jodi Lazare

Articles, Book Chapters, & Popular Press

This article draws on the Supreme Court of British Columbia's Reference re: Section 293 of the Criminal Code of Canada [the Polygamy Reference] as a concrete example of the benefits and limitations of intense judicial reliance on social science evidence in the adjudication of constitutional rights and freedoms at the trial level. By examining the evidence tendered, I suggest that the current adversarial model of adjudication is illsuited to combining the legal and the social scientific endeavours. The divergent values, methodologies and objectives of the legal and scientific enterprises severely limit the benefits that the former can yield, thus compromising …

Hryniak: Two Years Later: The Multiple Applications Of ‘That Summary Judgment Case’ From The Supreme Court Of Canada, Jessica Fullerton, Suzie Dunn

Articles, Book Chapters, & Popular Press

In January 2014, the Supreme Court of Canada released its decision in Hryniak v Mauldin2 and called for a “culture shift” in the approach to summary judgment and the civil justice system more generally. With the ambitious goal of reducing protracted, costly litigation that undermines access to justice – all the while ensuring the fair and just adjudication of disputes – it is surprising that Hryniak has not garnered more attention.

Or has it? It has been nearly two years since the Supreme Court’s call for change was levied. Since that time, Hryniak has been cited more than 800 times …

Judicial Priorities, Bert I. Huang, Tejas N. Narechania

Faculty Scholarship

In an unprecedented move, the Illinois Supreme Court in the mid-1990s imposed hard caps on the state's appeals courts, drastically reducing the number of opinions they could publish, while also narrowing the formal criteria for opinions to qualify for publication. The high court explained that the amendment's purpose was to reduce the "avalanche of opinions emanating from [the] Appellate Court," which was causing legal research to become "unnecessarily burdensome, difficult and costly." This unusual and sudden policy shift offers the chance to observe the priorities of a common law court in its production of published opinions. The method we introduce …

Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong

Faculty Articles

This phenomenon suggests a pressing need for further scrutiny into matters relating to the education of judges in this country. This Essay therefore considers of a number of fundamental issues relating to judicial education in the United States so as to consider, at least as a preliminary matter, whether regulatory capture exists. Given the scope of this Essay, some issues are necessarily excluded. Nevertheless, this Essay hopes to trigger a deeper debate about judicial education in this country.

The structure of the analysis is as follows. First, the Essay considers certain obstacles to research concerning judicial education as a means …

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Faculty Articles

The primary focus of this Article is on providing practical advice on how to write a reasoned decision or opinion (Section IV). However, experts in education theory have found that adult learners do best when they understand why certain information is being presented, so the discussion of how to write reasoned judgments will be preceded by a brief section on why such judgments are necessary or useful (Section III). This Article also considers what a reasoned decision or opinion actually is as a preliminary matter (Section II), since it is impossible to write such a document without a true appreciation …

Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong

Faculty Articles

The primary focus of this Article is to analyze various process-oriented and structural issues relating to reasoned awards in international commercial arbitration so as to improve the practical and theoretical understanding of international awards. That discussion, which is found in Section IV, considers various factors from both the common law and civil law perspectives so as to take into account the blended nature of international commercial arbitration.

Of course, to be fully comprehensible, the detailed analysis in Section IV must first be put into context. Therefore, Section II describes the difficulties associated with defining a reasoned award in international commercial …

Judicial Selection In Congress' Lame Duck Session, Carl W. Tobias

Law Faculty Publications

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Filling The Federal Appellate Court Vacancies, Carl W. Tobias

Law Faculty Publications

Multiple observers have criticized President Barack Obama’s discharge of his Article II constitutional responsibility to nominate and confirm federal judges. Senators have blamed the administration for slowly making nominations, liberals have contended that the executive appointed myriad candidates who are not sufficiently centrist, and conservatives have alleged that President Obama proffered many nominees who could become liberal judicial activists. Despite the sharp criticisms, the President has actually realized much success when nominating and confirming well qualified moderate jurists. President Obama has named more judges than Presidents George W. Bush and Bill Clinton had at this juncture in their tenure, while …

Filling The D.C. Circuit Vacancies, Carl W. Tobias

Law Faculty Publications

This Article's initial section posits a D.C. Circuit snapshot. Part II surveys all three prospects' confirmations. Part III assesses consequences of, and extracts lessons from, the specific processes recounted. Part IV proffers suggestions for improvement.

The Constraint Of Legal Doctrine, Shyamkrishna Balganesh

Faculty Scholarship

As the dominant approach to legal analysis in the United States today, Legal Realism is firmly ensconced in the way scholars discuss and debate legal issues and problems. The phrase “we are all realists now” is treated as cliché precisely because it is in some ways taken to state an obvious reality about the mindset of American legal scholars. While Legal Realism came to represent a variety of different views, all of these views embodied a common theme, namely, the belief that legal doctrine is “more malleable, less determinate, and less causal of judicial outcomes” than is traditionally presumed. Judges …

Supremes, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Grand Challenges, Grand Ideas: Ideas For Surmounting The Biggest Challenges Facing The Judiciary And The Legal Profession Today, David F. Levi

Faculty Scholarship

In delivering the Lloyd D. George Lecture on the Judicial Process at UNLV William S. Boyd School of Law last year, Duke Law School Dean David F. Levi laid out “The Grand Challenges for the Legal Profession and the Judiciary.” Following are his lecture and a roundtable discussion among judicial leaders who are responding to the call for new ideas and solutions for these Grand Challenges.

When Judges Have Reasons Not To Give Reasons - A Comparative Law Approach, Mathilde Cohen

Faculty Articles and Papers

Influential theories of law have celebrated judicial reasongiving as furthering a host of democratic values, including judges' accountability, citizens'participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reasongiving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between reasons for and …

Assumed Sane, Fatma Marouf

Scholarly Works

In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S- that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle—Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in suits challenging …

"Seg Academies," Taxes, And Judge Ginsburg, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

This essay recounts the historical, political, and legal context in which Judge Ginsburg’s ruling in the Wright case arose. This context explains the importance of her decision to the battle against segregated education and highlights as well the repeated efforts of powerful political forces, including the Reagan administration and congressional conservatives, to cripple efforts to prohibit racially discriminatory private schools from receiving federal subsidies through the tax system. This essay also aims to highlight Wright’s place in the modern doctrine of educational discrimination.