Judges Commons^™

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Publications

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.

Understanding The Value Of Judicial Diversity Through The Native American Lens, Paige E. Hoster

American Indian Law Review

No abstract provided.

Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman

All Faculty Scholarship

This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups …

Beyond Saints And Sinners: Discretion And The Need For New Narratives In The U.S. Immigration System, Elizabeth Keyes

All Faculty Scholarship

Beyond Saints and Sinners examines the forces affecting the exercise of discretion in American immigration courts, and argues that in this present age of immigration anxiety, the same facts that place an individual in deportation proceedings may constitute the reasons a judge will, relying on discretion, deny them relief for which they are otherwise eligible. The article explores the polarized narratives told about "good" and "bad" immigrants, the exceptionally difficult task of adjudicating in overburdened immigration courts, and the ways in which these polarized narratives interact with psychological short-cuts, or heuristics, that affect judicial exercises of discretion. After engaging in …

Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

This Article empirically examines the question of whether courts of appeals judges cast ideological votes in the context of bankruptcy. The empirical study is unique insofar as it is the first to specifically examine the voting behavior of circuit court judges in bankruptcy cases. More importantly, it focuses on a particular type of dispute that arises in bankruptcy - debt-dischargeability determinations. The study implements this focused approach in order to reduce heterogeneity in result. We find, contrary to our hypotheses, no evidence that circuit court judges engage in ideological voting in bankruptcy cases. We do find, however, non-ideological factors - …

Sonia Sotomayor And The Construction Of Merit, Guy-Uriel Charles, Daniel L. Chen, Mitu Gulati

Faculty Scholarship

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such …

Can The Rule Of Law Survive Judicial Politics?, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Politics In The Non-Political Branch, Justin L. Swanson

College of Journalism and Mass Communications: Professional Projects

Across the country there exists a patchwork of legal systems by which judges are appointed retained. In some states, like Illinois, it is a fully political process where judges actively campaign for election to the bench. But a majority of states, including Nebraska, have adopted the Merit Selection System, which attempts to remove politics from these processes. Nevertheless, politics can enter into the retention votes. And when they do, it can be extremely difficult for judges to overcome.

Emotional Regulation And Judicial Behavior, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. In the post-Realist era it is possible to acknowledge that judges have emotional reactions to their work, yet our legal culture continues to insist that a good judge firmly puts those reactions aside. Thus, we expect judges to regulate their emotions, either by preventing emotion’s emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation.
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/="/">This Article proposes a model for judicial emotion regulation that goes …

Share Transfer Restrictions In Close Corporations As Mechanisms For Intelligible Corporate Outcomes, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Revising Canada's Ethical Rules For Judges Returning To Practice, Stephen Ga Pitel, Will Bortolin

Dalhousie Law Journal

It has recently become more common for retired Canadian judges to return to the practice of law This development raises an array of ethical considerations and potential threats to the integrity of the administration of justice. Although most codes of legal ethics contemplate the possibility of former judges returning to practice, the rules on this particular topic are dated, under-analyzed, and generally inadequate. This article reviews the Canadian ethical rules that specifically relate to former judges and identifies their shortcomings. In doing so, the authors consider, for comparative purposes, Canadian ethical rules directed at former public officers who return to …

The Impeachment Of The Judges Of The Nova Scotia Supreme Court, 1787-1793: Colonial Judges, Loyalist Lawyers, And The Colonial Assembly, Jim Phillips

Dalhousie Law Journal

In 1790 the Nova Scotia House of Assembly passed seven "articles of impeachment" against two ofthe colony's Supreme Courtjudges, the firstattempt bya British North American assembly to remove superior courtjudges. Although the impeachment failed when the British government rejected the charges, it is noteworthy nonetheless. The product of a dispute between newly arrived loyalist lawyers and a local elite of "old inhabitants, " it was at one and the same time a political struggle between the Assembly and the executive branch, and one that involved concerns about judicial competence. The impeachment crisis also demonstrates the close links between the judiciary …

The Endorsement Factor, Marci A. Hamilton

Articles

No abstract provided.

Actual Versus Perceived Performance Of Judges, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Seattle University Law Review

Perceptions of judges ought to be based on their performance. Yet, few studies of the relation between perceived and actual judicial performance exist. Those claiming judicial bias should be especially sensitive to the relation between perception and performance. Judges perceived by the public or by the legal community as disfavoring a group may be regarded as biased, but that perception is unfair if the judges’ votes in cases do not disfavor the group. For example, it may be unfair to accuse an appellate judge of pro-state bias in criminal cases if the judge votes for defendants at a higher rate …

Sharing The Spotlight: Co-Authored Reasons On The Modern Supreme Court Of Canada, Peter J. Maccormick

Dalhousie Law Journal

When the Supreme Court of Canada delivers its reasons forjudgment, the normal expectation (the rare "By the Court" decision aside) is that the judgment of the Court-unanimous or majority or even plurality-will be designated as having been delivered by one specific judge. ("The reasons of A, B, C and D were delivered by B.") But in recent decades, the practice has developed for two or more judges to share this formal designation; co-authorships currently account for one judgment (and, for that matter one set of minority reasons) in every ten. This article explores this practice, unusual among comparable national high …

The Persistent Cultural Script Of Judicial Dispassion, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In contemporary Western jurisprudence it is never appropriate for emotion - anger, love, hatred, sadness, disgust, fear, joy - to affect judicial decision-making. A good judge should feel no emotion; if she does, she puts it aside. To call a judge emotional is a stinging insult, signifying a failure of discipline, impartiality, and reason. Insistence on judicial dispassion is a cultural script of unusual longevity and potency. But not only is the script wrong as a matter of human nature - emotion does not, in fact, invariably tend toward sloppiness, bias, and irrationality - but it is not quite so …

Listening To Victims, Jayne W. Barnard

Faculty Publications

No abstract provided.

Judicial Opinion Writing: An Annotated Bibliography, Ruth C. Vance

Law Faculty Publications

No abstract provided.

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Scholarly Articles in Law Reviews & Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

Lies, Damned Lies, And Judicial Empathy, Mary Anne Franks

Articles

No abstract provided.

White Male Heterosexist Norms In The Confirmation Process, Theresa M. Beiner

Law Faculty Scholarship

Justice Sonia Sotomayor's confirmation hearing took a controversial turn when commentators picked up on a reference in the New York Times to a portion of a speech she gave in 2001. In that speech, then Judge Sotomayor opined that, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." That statement, along with her participation in the per curiam decision in Ricci v. DeStefano, caused a minor storm during her confirmation. More recently, former Harvard Dean and former …

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky

Akron Law Faculty Publications

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Why Judicial Disqualification Matters. Again., Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

I am really happy to be part of this tribute to Paul Verkuil. It may surprise those in the audience to learn that I am bringing some needed diversity to today's proceedings - I am the only other Dutch American on the program! But perhaps my twenty years at the "Administrative Conference" also qualifies me to say a few words about how thrilled I am that we have it back - "ACUS 2.0" we can call it, complete with a website this time- and that Paul is at its helm. And I want to thank Paul for bringing me back …

Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Judicial Retirement And Return To Practice, Mary Clark

Scholarly Articles in Law Reviews & Journals

This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.

This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …

Remarks At Memorial Service For The Honorable Morris E. Lasker, U.S. District Court, Southern District Of New York, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Finding Data And Statistics On Judges, Leslie A. Street

Library Staff Publications

No abstract provided.