Judges Commons^™

Judging Implicit Bias: A National Empirical Study Of Judicial Stereotypes, Justin D. Levinson, Mark W. Bennett, Koichi Hioki

Florida Law Review

American judges, and especially lifetime-appointed federal judges, are often revered as the pinnacle of objectivity, possessing a deep commitment to fairness, and driven to seek justice as they interpret federal laws and the U.S. Constitution. As these judges struggle with some of the great challenges of the modern legal world, empirical scholars must seek to fully understand the role of implicit bias in judicial decision-making. Research from the field of implicit social cognition has long documented negative implicit biases towards a wide range of group members, some of whom may well be harmed in various ways across the legal system. …

Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed

Georgia State University Law Review

Enhanced damages in patent law are a type of punitive damage that can be awarded in the case of “egregious misconduct” during the course of patent infringement. Authorization for enhanced damages comes from 35 U.S.C. § 284, which allows the district court to increase total damages up to three times the amount of actual damages found by the jury. It is well understood that, since enhanced damages are punitive in nature, enhancement should only be considered for cases of “wanton” or “deliberate” infringement. However, determining what constitutes this “egregious” misconduct has vastly transformed over time to include a negligence standard, …

Newsroom: A Mentor And A Friend 2-21-2018, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Maine's Overburdened Law Court: Has The Time Come For A Maine Appeals Court?, Peter L. Murray

Maine Law Review

For the entire 178 years of Maine's statehood, its Supreme Judicial Court, “sitting as the Law Court,” has served as Maine's appellate court of first and last resort for all appeals from its trial courts of general jurisdiction. Over this time span, and particularly over the last three decades, the growth in number and complexity of civil and criminal appeals has placed the Law Court under an extremely heavy burden of cases. The sheer number of the appeals which the Law Court is expected to consider and decide risks exceeding the capacity of the institution for careful, thorough, and deliberate …

Creating Mischief: The Tenth Circuit Declares The Sec’S Administrative Law Judges Unconstitutional In Bandimere V. Securities Exchange Commission, Casey M. Olesen

Maine Law Review

Since the passage of the APA, administrative agencies’ use of Administrative Law Judges (ALJs) to preside over hearings has exploded, and now far outpaces the number trials conducted before federal judges. The Securities and Exchange Commission (SEC) is one such agency that heavily utilizes ALJs to conduct their hearings. Recently, following an apparent higher percentage of SEC wins before their own ALJs as compared to before federal judges, a new constitutional challenge on the basis of the Appointments Clause has been brought before several circuits; that the SEC’s ALJs are inferior officers of the SEC, not employees, and therefore are …

The Judicial Role In Criminal Charging And Plea Bargaining, Darryl Brown

Hofstra Law Review

No abstract provided.

Judicial Responsibility For Justice In Criminal Courts, Lisa Foster

Hofstra Law Review

No abstract provided.

Law Library Blog (February 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Newsroom: 'You Can't Help Being In Awe' 1-30-2018, Michael M. Bowden, Edward Fitzpatrick

Life of the Law School (1993- )

No abstract provided.

"We Are All Textualists Now": The Legacy Of Justice Antonin Scalia, Judge Diarmuid F. O'Scannlain

St. John's Law Review

(Excerpt)

One of my favorite extra-judicial activities is meeting with law students, and it is a pleasure to be with you today. But it is a special privilege to come back to the Jamaica campus of St. John’s College from which I graduated 60 years ago, long before the Law School had moved here from Schermerhorn Street in Brooklyn, and when there was only one building on this former golf course.

I was honored to call Justice Scalia a role model and friend. What I hope to convey to you today, however, is the effect Justice Scalia’s tenure on the …

Judicial Externships: Sharing Current Practices, Dinah Lennon Archambeault

Duke Law Master of Judicial Studies Theses

The need for externships has risen over the years as the importance of providing experiential education to supplement traditional doctrinal law school education has become generally acknowledged. Despite the many articles on externships, few, if any, have addressed how judicial externs are selected and how judicial externships are structured in the courts.

It was necessary to conduct qualitative research to determine how various courts address their extern programs, if at all. Based on the research I have undertaken, practices vary among courts and judges. Not only is there no uniform practice with respect to which courts and even judges place …

Certification Of Legal Questions To The Utah Supreme Court, David Nuffer

Duke Law Master of Judicial Studies Theses

For 30 years, federal courts have certified questions of state law to the Utah Supreme Court. This thesis examines the history and utility of the process and recommends changes to the process in the federal district court and in the Utah Supreme Court.

The current focus of federal judges in certifying questions is on utility for the case before the court. But certification of questions from a federal court to a state court is an expression of federalism—a humble acknowledgment by a federal authority which is often regarded as supreme that the state is the proper and best authority to …

Clerking For God’S Grandfather: Chauncey Belknap’S Year With Justice Oliver Wendell Holmes, Jr., Todd C. Peppers, Ira Brad Matetsky, Elizabeth R. Williams, Jessica Winn

Scholarly Articles

Most of what we know about law clerks comes from the clerks themselves, usually in the form of law review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their experiences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contradistinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer a real-time, …

Supreme Court Of The United States, October Term 2018 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Savings—The Missing Element In Chapter 13 Bankruptcy Cases?, David R. Jones

Duke Law Master of Judicial Studies Theses

This paper examines the effects of debtor savings on the viability of chapter 13 bankruptcy plans. The paper further examines the impact of lawyer culture, debtor participation in the bankruptcy process and judicial activism on the use of the savings program by chapter 13 debtors. Using a data set of randomly selected chapter 13 bankruptcy cases filed in the Southern District of Texas, the analysis demonstrates that while savings has a direct positive impact on the success of chapter 13 plans, the degree of that success is significantly influenced by the views held by debtors’ lawyers, chapter 13 trustees and …

Brock Turner: Sorting Through The Noise, Michael Vitiello

McGeorge School of Law Scholarly Articles

PART I. THE MEDIA’S ROLE ............................................................................... 634

A. Six Months for Rape? ............................................................................ 634

B. Okay, But Sixth Months for Sexual Assault? ......................................... 638

C. But Vitiello, You are Cherry-Picking the Facts ..................................... 643

D. But Judge Persky Showed Bias, Racial or Otherwise ........................... 646

PART II: TAKING THE WRONG PATH TOWARDS RECALL ................................... 649

A. Existing Checks on Judicial Misconduct ............................................... 650

B. What’s Not to Like About Recall? ......................................................... 652

III. CONCLUDING THOUGHTS ............................................................................. 659

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Bernard Chao, Catherine Durso, Ian Farrell, Christopher Robertson

Sturm College of Law: Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question depends on and reflects the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about …

Active Judging And Access To Justice, Anna E. Carpenter

Notre Dame Law Review

“Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.”

Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

How Defendant Characteristics Affect Sentencing And Conviction In The Us, Payton Kuenzli

Honors Undergraduate Theses

This research study analyzes whether or not there is any relationship between sentencing and conviction and certain defendant characteristics in the US legal system. In the midst of a time where the nation is strongly divided politically, the topic is often the center of research projects and discussions in academic journals. Specifically, this research explores the 3 characteristics- race, gender, and socioeconomic status. Within this article, multiple case studies from other journals are cited in which research and experiments have suggested that these factors do have influence on both whether or not a defendant gets convicted or for how long …

Constitutional Preservation And The Judicial Review Of Partisan Gerrymanders, Edward B. Foley

Georgia Law Review

This Essay makes three contributions to the debate
over whether the Constitution contains a judicially
enforceable constrain on gerrymanders. First,it directly
tackles the Chief Justice'sfear of thejudiciaryappearing
partisan,observing that the same fear would exist if the
Constitution explicitly banned gerrymanders and
explaining why an implicit ban should be no less
judicially enforceable than an explicit ban under
Marbury v. Madison. Second, invoking the idea of
"institutional forbearance" in the important new book
How Democracies Die, the Essay shows how the
Elections Clause can be construed to protect
congressional districting from abuses of legislative
discretion committed by state legislatures. Together,
these …

Draft Of A Letter Of Recommendation To The Honorable Alex Kozinski, Which I Guess I'M Not Going To Send Now, Yxta Maya Murray

Michigan Journal of Gender & Law

This legal-literary essay engages the current social and jurisprudential moment, encapsulated by the hashtag #metoo. It focuses on the allegations, made in the first week of December 2017, that Ninth Circuit Court of Appeals Judge Alex Kozinski verbally sexually harassed former law clerks Emily Murphy and Heidi Bond. I wrote the lioness’s share of the piece during December 10–11—that is, in the days before news outlets reported that other women complained of Kozinski touching them on the thigh or breast while propositioning them for sex or discussing recent sexual encounters—and concluded that Kozinski was unlikely to face impeachment or meaningful …

Without Evidence: Joel Richard Paul’S John Marshall, Kevin C. Walsh

Scholarly Articles

John Marshall—soldier, lawyer, legislator, statesman, and fourth chief justice of the United States—led a long public life that spanned from the American Revolution to the rise of Jacksonian democracy. Joel Richard Paul’s full-length biography takes the reader from Marshall’s birth on the Virginia frontier in 1755, to his death in 1835 at the head of an American judiciary that had gained significantly in power and respect because of Marshall’s leadership over the preceding 34 years.

Kennedy’S Last Term: A Report On The 2017–2018 Supreme Court, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of the …

Capital-Sentencing Law And The New Conservative Court, Scott W. Howe

Cardozo Law Review de•novo

With the Supreme Court now dominated by a solidly conservative majority, recent, well-grounded hopes for prompt judicial abolition of the death penalty have vanished. Furthermore, existing Eighth Amendment doctrines that limit the death penalty could be in jeopardy. Historically, many advocates for abolition have criticized these doctrines. They claim that the Eighth Amendment prohibition on Cruel and Unusual Punishments requires “consistency” in capital selection and that current capital-sentencing doctrines do not satisfy—and sometimes conflict with— this requirement. However, these advocates failed to anticipate the need to defend these doctrines should judicial abolition become an impossibility and the rolling-back of current …

Weighing Democracy And Judicial Legitimacy In Judicial Selection, Kenneth S. Klein

Faculty Scholarship

For over two centuries Americans have debated whether judges should be elected or appointed. While the explicitly-framed tension has been about the relative importance of judicial independence and judicial accountability in a democracy, the underlying issue has been about which structure better promotes the legitimacy of the judiciary. An institution has legitimacy when it enjoys diffuse support even for controversial decisions. Judicial legitimacy is in inherent tension with a judiciary in a democracy, since democracy implicitly assumes political elements to selection of all leaders (including judges), while judicial legitimacy is undermined by politics. The contemporary work on the relationship between …

International Judicial Practices: Opening The "Black Box" Of International Courts, Jeffrey L. Dunoff, Mark A. Pollack

Michigan Journal of International Law

This paper utilizes “practice theory” to identify and analyze the everyday practices of international judges, with particular focus on practices associated with judicial decision-making. Examining judicial practices illuminates a wide range of otherwise hidden activities that shape international judicial opinions; provides a pathway toward uncovering the subjective understandings that international judges attach to their own behaviors; and reveals underlying causal processes and mechanisms that influence tribunal decisions. By opening the “black box” of international courts, the practice turn permits us to shed light on their inner workings, and thereby enrich our understanding of these increasingly important bodies.

Ahead Of His Time: Cardozo And The Current Debates On Professional Responsibility, 34 Touro L. Rev. 63 (2018), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Studying The "New" Civil Judges, Anna Carpenter, Jessica Steinberg, Colleen Shanahan, Alyx Mark

Faculty Articles

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …

Patent Pilot Program Perspectives: Patent Litigation In The Northern District Of Illinois, 17 J. Marshall Rev. Intell. Prop. L. 348 (2018)

UIC Review of Intellectual Property Law

A Patent Pilot Program, or PPP, is geared towards giving designated judges in various districts more experience with patent cases. The Volume 17 RIPL Executive Board interviewed several participating judges in the Northern District of Illinois’ PPP.

This note is comprised of interviews with Judge Thomas M. Durkin, Judge Matthew F. Kennelly, and Judge Rebecca R. Pallmeyer of the United States District Court, Northern District of Illinois; taken over the course of May and June of 2017 by the Volume 17 RIPL Board members Kaylee Willis and Benjamin Lockyer. Its contents compile a uniform effort by both the judges interviewed …

"Adrenaline Of Excellence": The Career Of Judge Gerald Bruce Lee, Editors Of The American University Law Review

American University Law Review

The editors of the American University Law Review proudly dedicate this issue of the Law Review to the Honorable Gerald Bruce Lee, an alumnus of the American University Washington College of Law. As is made clear by the collection of Tributes below, Judge Lee has had a lasting impact not only on this law school and the legal community, but also on the Washington, D.C., metropolitan area. The Law Review hopes that this collection of Tributes, authored by individuals who know Judge Lee best, captures the “adrenaline of excellence” that Judge Lee brought to his career and continues to bring …