Judges Commons^™

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

Only Skin Deep: The Cost Of Partisan Politics On Minority Diversity Of The Federal Bench: Why Care Whether Judges Look “Like America” If, Because Of Politics, A “Voice Of Color” Has Become A “Whisper Of Color”?, Sylvia R. Lazos

Scholarly Works

This article explores the difficulties encountered in diversifying the federal bench and why the partisanship of the confirmation process decreases the diversity of viewpoints on the bench. Presidents value diversity in nominating judges. While Bill Clinton and George W. Bush had very contrasting political styles and judicial philosophies, the judges appointed by these two presidents now account for almost 80% of the current active federal minority judges. There has been progress in the area of descriptive diversity; currently 18% of the active federal bench is made up of minority judges according to data compiled from the Judicial Center. However, there …

The State Secrets Privilege And Separation Of Powers, Amanda Frost

Scholarly Articles in Law Reviews & Journals

Since September 11, 2001, the Bush administration has repeatedly invoked the state secrets privilege in cases challenging executive conduct in the war on terror, arguing that the very subject matter of these cases must be kept secret to protect national security. The executive's recent assertion of the privilege is unusual, in that it is seeking dismissal, pre-discovery, of all challenges to the legality of specific executive branch programs, rather than asking for limits on discovery in individual cases. This essay contends that the executive's assertion of the privilege is therefore akin to a claim that the courts lack jurisdiction to …

A Necessary And Proper Role For Federal Courts In Prison Reform: The Benjamin V. Malcolm Consentdecrees, Harold Baer Jr., Arminda Bepko

NYLS Law Review

No abstract provided.

Are Senior Judges Unconstitutional?, Ryan W. Scott, David R. Stras

Articles by Maurer Faculty

With burgeoning caseloads and persistent vacancies in many federal courts, senior judges play a vital role in the continued well-being of our federal judiciary. Despite the importance of their participation in the judicial process, however, senior judges raise a host of constitutional concerns that have escaped the notice of scholars and courts. Many of the problems originate with recent changes to the statute authorizing federal judges to elect senior status, including a 1989 law that permits senior judges to fulfill their statutory responsibilities by performing entirely nonjudicial work. Others arise from the ambiguity of the statutory scheme itself, which seems …

Federal Court Special Masters: A Vital Resource In The Era Of Complex Litigation, Mark A. Fellows, Roger S. Haydock

William Mitchell Law Review

This article is dedicated to all those who have served as special masters in federal court. After serving as a judicial master, it is easy to believe in the importance of the role in our grand system of justice. After reading this article, we hope it will be clear how vital masters are to everyone receiving fair, just, and expedient civil justice.

Decline Of Title Vii Disparate Impact: The Role Of The 1991 Civil Rights Act And The Ideologies Of Federal Judges, Michael J. Songer

Michigan Journal of Race and Law

This study employs various statistical techniques to test the efficacy of the 1991 Civil Rights Act in moderating the highly restrictive disparate impact regime imposed by Wards Cove, and to evaluate the hypothesis that political ideology should be a more powerful predictor of case outcomes following the 1991 Act. Part I of the paper describes the evolution of disparate impact doctrine from 1971 to the present. Part II analyzes data from randomly selected disparate impact cases brought by African American plaintiffs and finds that the current disparate impact doctrine emanating from the 1991 Civil Rights Act dramatically decreases the likelihood …

Fourth Circuit Publication Practices, Carl W. Tobias

Law Faculty Publications

Certain publication practices, especially dependence on issuing unpublished opinions, are one major response of federal courts to the increasing number of appeals. Few observers have assessed how specific tribunals employ these practices, although a recent study elucidates them. The Commission on Structural Alternatives for the Federal Courts of Appeals (Commission) gathered much useful data, which have remained strikingly constant, on each court. Because Fourth Circuit's publication practices and reliance on unpublished decisions allow the court to manage a large docket and suggest that it may not enunciate the common law, this Article scrutinizes those practices.

The Article first describes the …

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Chris Wright Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).

Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level, Frank O. Bowman, Michael Heise

Cornell Law Faculty Publications

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.

Our first article, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa Law Review 1043 (May 2001) ( "Rebellion I" ), examined national sentencing data in an effort to determine whether the decline in federal drug sentences is real (rather than a statistical anomaly), and to identify and analyze possible causes of the decline. We …

Picking Federal Judges: A Note On Policy And Partisan Selection Agendas, Micheal W. Giles, Virginia A. Hettinger, Todd C. Peppers

Scholarly Articles

The importance of lower federal courts in the policymaking process has stimulated extensive research programs focused on the process of selecting the judges of these courts and the factors influencing their decisions. The present study employs judicial decisionmaking in the U.S. Courts of Appeals as a window through which to reexamine the politics of selection to the lower courts. It differs from previous studies of selection in three ways. First, it takes advantage of recent innovations in measurement to go beyond reliance on political party as a measure of the preferences of actors in the selection process. Second, employing these …

What Will Diversity On The Bench Mean For Justice?, Theresa M. Beiner

Michigan Journal of Gender & Law

This article is aimed at the general question: whether having a woman judge would make a difference in sexual harassment cases. This article is aimed at this general question, the response to which has been elusive: Does the race, gender, or other background characteristics of a judge make a difference in the outcome of cases? The effects of diversity on the bench are just becoming measurable. Many legal scholars have assumed diversity will make a difference. While this conclusion may seem commonsensical, it is important to be able to support such assertions with actual data. The supposition has been that …

Leaving A Legacy On The Federal Courts, Carl Tobias

University of Miami Law Review

No abstract provided.

Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Cornell Law Faculty Publications

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical …

Book Review —The Federal Courts: Challenge And Reform, Roger J. Miner '56

Book Reviews

No abstract provided.

Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

Foreigner! The word says it all. Verging on the politically incorrect, the expression is full of connotation and implication. A foreigner will face bias. By such a thought process, many people believe that litigants have much to fear in courts foreign to them. In particular, non-Americans fare badly in American courts. Foreigners believe this. Even Americans believe this.

Such views about American courts are understandable. After all, the grant of alienage jurisdiction to the federal courts, both original and removal, constitutes an official assumption that xenophobic bias is present in state courts. As James Madison said of state courts: “We …

Courts In Cyberspace, Theodore Eisenberg, Kevin M. Clermont

Cornell Law Faculty Publications

No abstract provided.

Trial By Jury Or Judge: Which Is Speedier?, Theodore Eisenberg, Kevin M. Clermont

Cornell Law Faculty Publications

Many take as a given that jury-tried cases consume more time than judge-tried cases. Judge Richard Posner of the Seventh Circuit, for example, opines: “Court queues are almost always greatest for parties seeking civil jury trials. This makes economic sense. Such trials are more costly than bench trials both because of jury fees (which … understate the true social costs of the jury) and because a case normally takes longer to try to a jury than to a judge …. Parties are therefore “charged” more for jury trials by being made to wait in line longer.”

A close reading reveals …

Fact-Bargaining: An American Phenomenon, William T. Pizzi

Publications

No abstract provided.

Exorcising The Evil Of Forum-Shopping, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

Most of the business of litigation comprises pretrial disputes. A common and important dispute is over where adjudication should take place. Civil litigators deal with nearly as many change-of-venue motions as trials. The battle over venue often constitutes the critical issue in a case.

The American way is to provide plaintiffs with a wide choice of venues for suit. But the American way has its drawbacks. To counter these drawbacks, an integral part of our court systems, and in particular the federal court system, is the scheme of transfer of venue "in the interest of justice." However, the leading evaluative …

Introduction To Mercer Law Review Symposium On Federal Judicial Independence, L. Ralph Mecham

Mercer Law Review

No abstract provided.

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis

University of Michigan Journal of Law Reform

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the …

The Fault Is In Ourselves, Roger J. Miner '56

Bar Associations

No abstract provided.

Diluting Justice On Appeal?: An Examination Of The Use Of District Court Judges Sitting By Designation On The United States Courts Of Appeals, Richard B. Saphire, Michael E. Solimine

University of Michigan Journal of Law Reform

According to a number of studies and commentators, a serious caseload crisis faces the federal courts. With respect to the federal courts of appeals, some have called for drastic remedial measures. Until Congress responds, the courts of appeals have been forced to adopt a range of coping measures. In this article, Professors Saphire and Solimine examine one of these measures, the utilization of designated district court judges on appellate panels. After discussing the origins and extent of this practice, they identify a number of problems it raises. They argue that extensive and routine utilization of district judges on appellate panels …

Lessons From Reforming Inquisitorial Systems, William T. Pizzi

Publications

No abstract provided.

Coconspirator Statements And Former Testimony In New York And Federal Courts With Some Comments On Codification, Randolph N. Jonakait

Touro Law Review

No abstract provided.

Judicial Vacancies And Delay In The Federal Courts: An Empirical Evaluation, In Symposium, The Civil Justice Reform Act, A. Kimberley Dayton

Faculty Scholarship

This Article examines the relationship between federal district court judicial vacancies --whether caused by the executive branch's failure to timely nominate judges, Congress's failure to confirm presidential nominees, or some other reason -- and delays in processing the civil caseload. The hypotheses tested are several configurations of the hypothesis “judicial vacancies cause delay.” The statistical method of analysis of covariance is used to test this hypothesis and thereby evaluate the degree to which delays, defined by reference to certain case management statistics, are correlated to vacancy rates in individual federal district courts, and within the federal system as a whole. …

Settling For A Judge: A Comment On Clermont And Eisenberg, Samuel R. Gross

Articles

Trial by Jury or Judge: Transcending Empiricism,1 by Kevin Clermont and Theodore Eisenberg, is not only an important article, it is unique. To most Americans, trial means trial by jury. In fact, over half of all federal trials are conducted without juries2 (including 31% of trials in cases in which the parties have the right to choose a jury3), and the proportion of bench trials in state courts is even higher.4 And yet, while there is a large literature on the outcomes of jury trials and the factors that affect them,5 nobody else has systematically compared trials by jury to …

Section 1983, Honorable George C. Pratt, Martin A. Schwartz, Leon Friedman

Touro Law Review

No abstract provided.

Selecting Law Clerks, Patricia M. Wald

Michigan Law Review

April may indeed have been "the cruellest month" this year for federal judges and their prospective clerks. For a decade now, federal judges have been trying - largely without success - to conduct a dignified, collegial, efficient law clerk selection process. Because each federal judge has only to choose two to three clerks each year, and there is a large universe of qualified applicants graduating each year from our law schools, this would not seem an insurmountable task. And because each federal judge has choice first-year positions to offer and has no need or ability to dicker on salary or …