Judges Commons^™

Lost In The Thicket, Brad Snyder

Touro Law Review

As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.

Judging Our New Judges: Why We Must Remove Artificial Intelligence From Our Courtrooms Now, Kieran Duffy Newcomb

Honors Theses and Capstones

In this paper, I explore some of the ways in which artificial intelligence might enhance the sentencing process through recidivism prediction technology. Notably, this technology can increase the accuracy of risk predictions and the speed with which sentencing decisions are reached. I then show, however, that the recidivism prediction technology is likely to turn into what data scientist Cathy O’Neil calls a Weapon of Math Destruction. The potential harmfulness of this technology is due not to the inherent nature of the technology, but the symbiotic relationship it will have with our already harmful criminal justice system. I argue that the …

Creating A Just System Of Civil Recourse – Articulating The Controlled Instrumentalist Approach For Marginalized People, Rukmini Banerjee

CMC Senior Theses

A system of civil recourse is a precondition for a just society. In this paper, I outline the ideal version of a system of civil recourse and analyze the accounts of various liberal philosophers to explain how a non-instrumental and mutual accountability theory of civil recourse best encapsulates its stated purpose. I analyze the American system of civil recourse, specifically tort law, and argue that it bypasses the threshold of tolerable injustice for marginalized people in the United States. Using Tommie Shelby’s framework in Dark Ghettos: Injustice, Dissent, and Reform, I argue that marginalized people are not obligated by …

Partisan Panel Composition And Reliance On Earlier Opinions In The Circuit Courts, Stuart M. Benjamin, Byungkoo Kim, Kevin M. Quinn

Faculty Articles

Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard’s treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what …

When Is Legal Methodology Binding?, Jonathan R. Nash

Faculty Articles

Common-law interpretive methodologies are mostly nonbinding, but some interpretive methodologies are seen as binding precedent. This Article offers an explanation for this state of affairs. Whereas the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se nonbinding) and normative analysis, this Article fills a gap in the literature by providing a realist explanation for the legal landscape of binding interpretive methodologies. It identifies whether a methodology is rule-like, and whether it increases judicial legitimacy and/or court power as “pull factors”—that is, incentives that might attract judges to recognize interpretive methodologies as binding. …

Institutional Design And The Predictability Of Judicial Interruptions At Oral Argument, Tonja Jacobi, Patrick Leslie, Zoë Robinson

Faculty Articles

Examining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and …

Filling The Red State Federal Judicial Vacancies, Carl Tobias

Law Faculty Publications

District vacancies without nominees that plague red jurisdictions deserve emphasis in this Essay for several reasons. First, there are myriad district court jurists who trigger greater numbers of empty posts when they assume senior status, retire, or die, which triggers more issues. Legislators have created 677 active trial court positions, which dwarf the 179 active court of appeals judicial posts. The trial courts are tribunals of last resort for most cases; their numerous jurists are the only court members that many litigants encounter, and significantly more district court openings lack nominees. In contrast, appellate courts explicitly articulate considerable policy, include …

Michigan Senators' Crucial Role In Keeping Federal Courts Full, Carl Tobias

Law Faculty Publications

One critical responsibility that the American Constitution assigns senators is the provision of comprehensive advice and consent respecting accomplished federal judicial candidates suggested by the President to serve, particularly in their home states. Democratic Senator Debbie Stabenow, who is completing her fourth term representing Michigan, has always joined with her colleague Democratic Senator Gary Peters in the administration of President Joe Biden and Vice President Kamala Harris to astutely discharge this crucial responsibility. Stabenow and Peters exercised sound judgment, intelligence, hard work, and keen appreciation for the distinct roles that the Constitution accords the President and senators in the confirmation …

Being An Icon: Reflections On Sandra Day O'Connor, Lisa Kern Griffin

Faculty Scholarship

Justice Sandra Day O'Connor's passing in December inspired an outpouring of tributes to the rancher's daughter who blazed a trail through Stanford, legal practice, the Arizona legislature, and the state trial and appellate courts to arrive at the Supreme Court of the United States. She served as the Court's 102nd Justice and the first woman Justice in the institution's almost 200-year history. Justice O'Connor was both a world historical figure and a one-of-a-kind personality. She has been justly celebrated for her tremendous accomplishments as well as her extraordinary personal grace. This reflection offers some insight into what she looked like …

Justice David Hackett Souter And The Right To Privacy, Scott P. Johnson

Mitchell Hamline Law Review

No abstract provided.

A Life In Service: Interview With The Hon. Christopher M. Klein, Nancy B. Rapoport

Scholarly Works

Over the course of a few days, Judge Christopher M. Klein agreed to sit down, figuratively speaking, with Professor Nancy Rapoport and answer a few questions about how he approaches his job as a bankruptcy judge.

By way of background, Judge Klein was appointed to the bench in 1998 as a United States Bankruptcy Judge for the Eastern District of California. He was a member of the Bankruptcy Appellate Panel of the Ninth Circuit from 1998 through August 2008, serving as Chief Judge from 2007 to 2008. Prior to 1988, after service in the Marine Corps as an artillery officer …

Decisionmaking In Patent Cases At The Federal Circuit, Jason Reinecke

Washington and Lee Law Review

This Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2675 three-judge panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases and provides insight into judicial decisionmaking more broadly. And several results show that many of the worst fears that commentators have about the Federal Circuit appear overstated or untrue. …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

U.S. Judiciary Syllabus: True True Crime Zines, Jason Leggett

Open Educational Resources

An experimental, open education syllabus for a pilot zero textbook cost course, U.S. Judiciary using zines and true crime.

Music, Mayhem, And A Mississippi: Still Burning-The Hope Of Smothering The Deleterious Effects Of Deliberate Indifference, Angela Dixon

Cardozo Journal of Equal Rights & Social Justice

The article argues that the deliberate indifference standard, as applied in Eighth Amendment jurisprudence, fails to adequately address inhumane and unconstitutional prison conditions, particularly in Mississippi. It critiques the standard for prioritizing prison officials' intent over objective conditions, allowing systemic neglect and racial disparities to persist. The analysis advocates for a shift toward an objective standard to better protect human dignity and hold prison administrators accountable.

Appoint Judge Ana De Alba To The Ninth Circuit, Carl Tobias

University of Richmond Law Review

The United States Senate must rapidly appoint Eastern District of California Judge Ana de Alba to the Ninth Circuit. This appellate tribunal is a preeminent regional circuit, which faces substantial appeals, has the largest complement of jurists, and clearly includes a massive geographic expanse. The nominee, whom President Joe Biden designated in spring 2023, would offer remarkable gender, experiential, ideological, and ethnic diversity realized primarily from serving productively with the California federal district, and state trial, courts after rigorously litigating for one decade in a highly regarded private law firm. For over fifteen years, she deftly excelled in law’s upper …

Partisan Judges, Steve Leben

Faculty Works

This article argues that both Republicans and Democrats should look for judges who have intellectual humility and an ability to work with others—even as both parties also look for judges who are generally likely to advance positions favored by them. Part I explores the divergence between the public’s perception that the political views of judges matter and the insistence by most judges that they do not. Ample evidence supports the public’s view, and for judges to be trusted authorities, they should admit this truth. Part II suggests that even after recognizing that political views matter, both political parties (and others …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron

Touro Law Review

No abstract provided.

John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson

Touro Law Review

This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.

Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner

Touro Law Review

This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. …

Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff

Touro Law Review

The Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation.

Felix Frankfurter, Collector Of People, John Q. Barrett

Touro Law Review

Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. This essay, written on the great occasion of Brad Snyder’s Frankfurter biography, considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Frankfurter himself, Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander Bickel, Andrew L. Kaufman, and Philip …

The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein

Touro Law Review

Professor R.B. Bernstein was a legal historian with a J.D. from Harvard Law School who taught at the Colin Powell School for Civic and Global Leadership at City College of New York and New York Law School. He presented the paper below on Professor Felix Frankfurter’s The Public and Its Government, published in 1930. A little more than two months after the conference, sadly, Professor Bernstein passed. His brother Steven Bernstein provided the Touro Law Review with the draft of the paper that Professor Bernstein was preparing to submit for publication. We have added footnotes and made only minor revisions. …

Mediating Pluralism: Felix Frankfurter’S Commitment To Majoritarian Democracy, Dalia Tsuk

Touro Law Review

This Article explores parallels between Frankfurter’s faith in democracy, that is, his trust in the legislative and executive branches as reflected in his jurisprudence of judicial restraint, and Frankfurter’s vision for Jewish (and other) immigrants’ integration into the American polity, namely his conviction that immigrants should shed vestiges of their birth cultures and assimilate into their adopted culture. The Article argues that Frankfurter’s commitment to judicial restraint was his means of mediating the pluralist dilemma, that is, the need to accommodate within the law diverse cultures and values; just as Felix Frankfurter, the first-generation Jewish American, wanted to sidestep ethnic …

Lessons Learned Since Life On The Law Review, Cynthia M. Davis

Marquette Law Review

No abstract provided.

SchröDinger’S Dissent: The Hybrid Authority Of A Dissenting Opinion, Christina M. Frohock

Marquette Law Review

A dissenting opinion is the Schrödinger’s cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is not binding. Outside the universe of precedent, that authority defies easy description. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of commentary. A dissenting judge writes to undercut the law, providing a case law coda. This Article describes the traditional categories of authority, primary and …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

What Mediation Romantics Can Learn From The Model T (Or Maybe The Chevrolet Trax), Nancy A. Welsh

Cardozo Journal of Conflict Resolution

When mediation was reintroduced to the U.S. in the 1970s, it was infused with a democracy-and-self-determination-enhancing, social justice ethos. As the process has been very successfully institutionalized, however, these ambitions have been scaled backalthough, at least arguably, certain "mediative elements" have actually been adopted (or coopted) by other procedural innovations. Perhaps it is time for those of us frustrated with the evolution of mediation to reconcile ourselves to the reality and value of a "basic" model of mediation designed for the sole purpose of getting parties from dispute to settlement-in much the same way that the basic model of a …