Judges Commons^™

The Play’S The Thing: A Response To Judge Benjamin Beaton, Aaron J. Walayat

Pepperdine Law Review

In a recent speech, later published as an essay, the Hon. Benjamin Beaton of the United States District Court for the Western District of Kentucky shared his critical suggestions against the use of the honorific “Your Honor,” preferring instead the more neutral title “judge.” Judge Beaton’s reason for this preference stems from a fear that the current practice of judicial titles emphasizes status over function, which may inflate the individual judge’s ego while miscommunicating to the public that judges make, rather than find, law. This position, however, is misguided. Judicial titles emphasize the authority of the law through the authority …

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

UMKC Law Review

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

2024 Hines Jurist In Residence Lecture:, Carla Wong Mcmillian

Edenfield & Hines Jurists in Residence

The Hines Jurist in Residence Lecture was delivered by Georgia Supreme Court Justice Carla Wong McMillian (J.D. 98) who discussed her path to the bench. Her talk was titled "From China to Augusta to the Supreme Court".

Disgusted Judges And Domestic Violence, Jessica Miles

Elisabeth Haub School of Law Faculty Publications

Domestic violence is disgusting. Seeing a person with a bruised face or black eye can make us cringe. Reading a graphic description of a physical or sexual assault by an intimate partner can lead to revulsion. Like the rest of us, judges experience disgust--both consciously and subconsciously--when confronted with evidence of abuse in intimate relationships. These feelings of disgust shape the judicial system's responses to domestic violence in non-obvious ways.

In the minority of cases which seem to be “clear cut” (e.g., involving recent and corroborated physical or sexual violence), judicial disgust with defendants found to have perpetrated domestic violence …

Justice William J. Brennan Jr.'S Teleological Jurisprudence And What It Means For Constitutional Interpretation Today, Susan D. Carle

Scholarly Articles in Law Reviews & Journals

Observers commonly think of the Warren and Roberts Courts as polar opposites in their modes of constitutional interpretation. But how different are their approaches really? To be sure, the values that underlie the jurisprudence of the Warren and Roberts Courts are dramatically different, but their methodologies for constitutional adjudication are similar in a crucial respect: both Courts frequently employ a teleological approach. They look, in other words, to ends outside of the law to determine the direction in which constitutional law should be heading.

To prove this point, this Article examines the methods and values Justice William J. Brennan Jr. …

Judges Compete Because They Are Human, Merritt E. Mcalister

UF Law Faculty Publications

Judges are human, and they compete for cases because they are susceptible to the same kinds of very human incentives as the rest of us. But what is unusual about federal judges is their workplace: they have a glorious dead-end job that's missing traditional carrots and sticks. This dynamic produces some strange results, including forum selling, where judges seek more work for the same pay. In conversation with Why Do Judges Compete for Cases?, this Response suggests that forum selling (and its attendant risks and harms) is inevitable, because judges, like the rest of us, will act out of …

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 …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

The Harlan Court: A Constitutional Alternate History, H. Jefferson Powell

Faculty Scholarship

Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and …

Can Judges Help Ease Mass Incarceration?, Jeffrey Bellin

Faculty Publications

A scholar considers how judges have contributed to historically high incarceration rates -- and how they can help reverse the trend.

Learning To Disagree Agreeably, Allison Orr Larsen

Faculty Publications

But the most important lesson I learned from Judge Wilkinson—out of many important lessons—is the one brought home to me by witnessing his friendship with Judge Michael: the law works only when lawyers learn to “disagree agreeably.” This is a phrase the Judge taught me—and he always attributed to people from whom he learned it—but for me it encapsulates the Judge in every way. It is easy to talk about being collegial in the abstract, but Judge Wilkinson practices what he preaches.

In this brief Essay, on the occasion of celebrating a man who shaped my career and life in …

Judges And The Regulatory State: Trends Of Resistance And Restraint, Luke Norris

Law Faculty Publications

The last great confrontation between courts and the regulatory state occurred at the turn of the previous century. As courts in the first decades of the twentieth century resisted regulatory laws designed to protect workers and curb market excesses, they sustained broad legal and public critique, including claims that they were guardians of corporate power and monied and propertied interests. The showdown, as is familiar fare, was seemingly resolved in the New Deal, with the Supreme Court and judiciary largely accepting the constitutionality of federal and state regulatory laws. The compromise that emerged, dubbed the “New Deal settlement,” ostensibly called …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Publications

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors—who control plea terms—as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules and doctrines, …

To Write Or Not To Write: The Ethics Of Judicial Writings And Publishing, Nick Badgerow, Michael Hoeflich, Sarah Schmitz

St. Mary's Journal on Legal Malpractice & Ethics

Judges are bound by the Model Code of Judicial Conduct promulgated by the American Bar Association and adopted most states, including the federal judiciary. Within these rules governing judicial conduct, Judges owe duties to the public and to their calling, to be (and appear to be) objective, fair, judicious, and independent. When judges venture into the realm of extrajudicial writing—in the form of fiction novels, short stories, legal books, children’s books, and the like—they must consider the ethical bounds of that expression. The Model Code of Judicial Conduct imposes five main constraints upon extrajudicial writings: (a) a judge may not …

2023 Women In Robes, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Disparities On Judicial Conduct Commissions, Nino C. Monea

Marquette Law Review

Every state has a judicial conduct commission responsible for investigating complaints against judges and issuing sanctions where appropriate. But the judicial disciplinary system needs fixing. This Article examines 466 cases of public discipline from five states to illustrate the shortcomings of the present system. The status quo hides judicial misconduct from the public, fails to punish judges who abuse their office, and gives judges greater protections than criminal defendants, even when the stakes are lower.

Texans Shortlisted For The U.S. Supreme Court: Why Did Lightning Only Strike Once?, The Honorable John G. Browning

St. Mary's Law Journal

No abstract provided.

Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise

St. John's Law Review

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.

Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …

The Cruel Case Of Wrongful Convictions: Conveying A Racial And Criminal Crisis In Our Courts, Cullen Livingston

Political Science Theses and Capstones

Starting in 1989 with the advent of DNA analysis, discourse on wrongful conviction has become more prevalent in the U.S., but lacks an explanation for how they happen. There are a number of studies on the effects of wrongful conviction on its victims in social, mental, and historical terms. There is also a concerning level of scope in this concept, with an uncertainty on how to best measure the amount of people who have been victimized by wrongful convictions and what the rate of these convictions may be. Based on this literature I study three different potential causes, these being …

Promoting Women’S Advancement In The Judiciary In The Midst Of Backlash: A Comparative Analysis Of Representation And Jurisprudence In Key Domestic And International Fora, Shruti Rana

Dickinson Law Review (2017-Present)

Women’s advancement in the judiciary of the United States has been slow and uneven, and has long lagged behind other nations. Parity in representation remains distant, and the gains to date vulnerable to changes in administrations and fluctuating levels of state commitment to gender equality, with the recent global backlash to gender equality and international norms and institutions providing a critical example of this fragility. In this light, this Article argues that gender parity in the judiciary should not be viewed as merely a laudable goal. Rather, representation and parity should be viewed as fundamental state legal obligations under international …

The Due Process Owed To Noncitizens: Standardizing The Burden In Sec. 1226(A) Bond Hearings With The Help Of Hernandez-Lara And Velasco Lopez, Sharon Shaji

Cardozo Law Review

No abstract provided.

19th Annual Diversity Symposium Dinner 2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

2023 Hines Jurist In Residence Lecture: "Leadership In The 21st Century And Beyond: Where Are The Lawyers?", Verda Colvin

Edenfield & Hines Jurists in Residence

The Hines Jurist in Residence Lecture was delivered by Georgia Supreme Court Justice Verda Colvin (J.D.'90). Her talk was titled "Leadership in the 21st Century and Beyond: Where are the lawyers?" As a School of Law graduate herself, Justice Colvin challenged our community to think nationally and globally about our place in our world as lawyers and our obligation to the greater good.

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

Legal Philosophy For Lawyers In The Age Of A Political Supreme Court, Patrick J. Borchers

Tennessee Law Review

Legal Philosophy has long been concerned with the question of what brands a norm as legal, as opposed to a non-legal norm of justice or morality. This central question has occupied the attention of philosophers and lawyers for centuries. Roughly speaking, the Naturalist school contends that legal norms are inextricably intertwined with norms of morality and justice (and in its strongest form contends that law-like pronouncements that are immoral or unjust are not fully laws), while the Positivist school argues that a social construct (often called the Rule of Recognition) brands selected norms as legal, and thus legal norms may …

Zoned In: How Residence Restrictions Lead To The Indefinite And Unconstitutional Detention Of New Yorkers Convicted Of Sex Crimes, Rebecca Tunis

Cardozo Law Review de•novo

Despite the New York Court of Appeals majority holding in People ex rel. Johnson, New York’s policy of detaining individuals beyond their maximum sentence because they are unable to procure SARA-compliant housing is plainly unconstitutional. The policy violates sex offenders’ fundamental right to be released from prison after serving their sentence. Further, the policy fails to meet even the most relaxed form of judicial review because the state has not shown that it benefits public safety. Indeed, there is virtually no evidence proving that this policy serves to protect the public at all, and a growing body of research shows …

Visiting Judges Riding Circuit And Beyond, Marin K. Levy

Faculty Scholarship

No abstract provided.

Court Review: Journal Of The American Judges Association, Vol. 59, No. 2, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Articles

Judicial Strategies for Evaluating the Validity of Guilty Pleas; Kelsey S. Henderson, Erika N. Fountain, Allison D. Redlich, and Jason A. Cantone

Courtroom Technology from the Judge’s Perspective: A 2022-23 Update; Fredric I. Lederer

The Science of Children’s Lies (and their Detection): A Primer for Justice Practitioners; Vincent Denault and Victoria Talwar

Jury Trial Innovation Round #2; Judge Gregory E. Mize

Departments

Editor’s Note; David Prince

President’s Column:2023, the Year of Excellence! Yvette Mansfield Alexander

Thoughts from Canada: The Supreme Court of Canada Considers How the “Plain View” Doctrine Applies to Searches of Electronic Devices; Wayne K. Gorman

Crossword:Employment …

Court Review: Journal Of The American Judges Association, Vol. 59, No. 1, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Articles

Being “Human” in the Age of Artificial Intelligence; Katherine B. Forrest

Ten Tips for Getting the Most Out of an Evaluation of Your ODR Program; Donna Shestowsky and Jennifer Shack

The Dilemma of Black Coding: Assessing Algorithmic Discrimination Legislation in the United States; Clarence Okoh

Securing the Integrity of Our Judicial System: Protecting Judges Beyond the Courthouse; Ron Zayas

Want to Know More About AI? Editors’ Selections: Judge ChatBot Answers All Your Questions; David J. Dreyer

Departments

Editor’s Note; David Dreyer

President’s Column: 2023--The Year of Excellence! Yvette Mansfield Alexander

Crossword: Anonymous Oft-Quoted Remark; Vic Fleming

Thoughts from Canada: …

Court Review: Journal Of The American Judges Association, Vol. 59, No. 3, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Articles

Judicial Discipline, Examining Ethics Oversight for the Highest Levels of Our Least Accountable Branch; David Prince

Civil Cases in the Supreme Court’s October Term 2022; Thomas M. Fisher

Departments

Editor’s Note; David Dreyer

President’s Column: A Legacy of Leadership and Service; Yvette Mansfield Alexander

Thoughts from Canada: Uttering Threats in Canada and the United States, a Comparative Analysis; Wayne K. Gorman

Crossword: Name That Games; Tracy Bennett and Vic Fleming

The Resource Page: Junk Science and the Judicial System; The Elevator Effect; Mindfulness and Judging: Resources for Judges; New Online Database: Judges and the Judiciary: Exploring America's Court System; …