Judges Commons^™

On Misjudging And Its Implications For Criminal Defendants, Their Lawyers And The Criminal Justice System, Rodney J. Uphoff

Faculty Publications

Unquestionably, judges misjudge. Even the most arrogant of judges ultimately will concede that all judges err and, at some point, fail to apply governing law to the facts of the case accurately. Although all might agree that judges err, not all judges, lawyers, and scholars agree on how judges should behave or on what constitutes good judging. Not surprisingly, they also disagree about misjudging and the frequency with which it occurs.In his provocative article Misjudging, Chris Guthrie contends that “misjudging is more common, more systematic, and more harmful than the legal system has fully realized.” Based on my observations and …

Does A Judge's Party Of Appointment Or Gender Matter To Case Outcomes?: An Empirical Study Of The Court Of Appeal For Ontario, James Stribopoulos, Moin A. Yahya

Osgoode Hall Law Journal

A recent study by Cass Sunstein identified ideological differences in the votes cast by judges on the United States Courts of Appeals in certain types of cases. He found that these patterns varied depending on the ideology of an appellate judge's co-panelists. In this study, we undertake a similar examination of the busiest appellate court in Canada, the Court of Appeal for Ontario. This study collects data on the votes cast by individual judges in every reported decision between 1990 and 2003. Each case was cod6d by type, for example "criminal law," "constitutional law," or "private law." In addition, the …

Below The Surface: Comparing Legislative History Usage By The House Of Lords And The Supreme Court, James J. Brudney

ExpressO

Abstract for “Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court

In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain’s highest court has used …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Claim Construction, Appeal, And The Predictability Of Interpretive Regimes, Jeffrey A. Lefstin

ExpressO

Interpretation is central to patent law, because most adjudications require association of written claims with non-linguistic subject matter. By some accounts, the lack of predictability in the law of claim interpretation has reached crisis proportions, and has prompted calls for far-reaching changes in the way patent issues are adjudicated. However, the actual evidence that questions of interpretation are more problematic than other aspects of patent law is sparser than is commonly recognized. Moreover, while the controversy over claim interpretation centers around the predictability of interpretation between trial and appeal, what is important is to be able to predict outcomes before …

Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm

ExpressO

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court’s crucial voice in environmental and natural resources law cases. Kennedy’s central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S., since he supplied the critical vote in both: upholding local use of the condemnation power for economic development under certain circumstances, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters. In each case Kennedy’s sole concurrence was outcome determinative.

Justice Kennedy has …

The View From The Trenches: A Report On The Breakout Sessions At The 2005 National Conference On Appellate Justice, Arthur Hellman

ExpressO

In November 2005, four prominent legal organizations sponsored the second National Conference on Appellate Justice. One purpose was to take a fresh look at the operation of appellate courts 30 years after the first National Conference. As part of the 2005 Conference, small groups of judges and lawyers gathered in breakout sessions to discuss specific issues about the operation of the appellate system. This article summarizes and synthesizes the participants’ comments. The article is organized around three major topics, each of which builds on a different contrast with the 1975 conference.

First, the participants in the earlier conference apparently assumed …

Rethinking Judicial Nominating Commissions: Independence, Accountability, And Public Support , Joseph A. Colquitt

Fordham Urban Law Journal

The Article focuses on one of the pillars of the judicial appointive process, the judicial nominating commission, suggesting that all jurisdictions should have judicial nominating commissions. A judicial nominating commission exists to screen and select nominees for judgeships. This article envisions and describe a system that more likely will result in selecting the right person for the bench.

Wyoming’S Judicial Selection Process: Is It Getting The Job Done?, Marilyn S. Kite

Fordham Urban Law Journal

This article explains Wyoming’s commission based judicial selection process, studies how it has performed over the years, and looks to see what lessons we can learn from that history, and consider how it can be improved. Throughout this Article, the focus will be on what attributes of a judicial selection system best result in an independent, accountable, and vibrant judiciary.

Enhancing Diversity In An Appointive System Of Selecting Judges, Leo M. Romero

Fordham Urban Law Journal

This Article examines the different measures that states, with a particular focus on New Mexico, have adopted in order to enhance diversity in their appointive systems and proposes ways to structure an appointive system that gives due consideration to concerns about diversity. This Article concludes that an appointive system should be designed to require consideration of diversity in the composition of nominating commissions and in the evaluation of applicants.

A Tribute To Hon. George Bundy Smith -- A Good Lawyer, Mark Alcott

Fordham Urban Law Journal

Speech given in tribute to George Bundy Smith, including discussion of his contributions to Fordham Law activities, volunteer organizations, and for the New York State Bar Association, in addition to his work as a writer, teacher, and family member.

A Tribute To Hon. George Bundy Smith -- Excellence, Sandra Jefferson Grannum

Fordham Urban Law Journal

A tribute to George Bundy Smith, focusing on his commitment to excellence as a teacher, mentor, and professional.

A Tribute To Hon. George Bundy Smith -- Leadership, Fern Fisher

Fordham Urban Law Journal

A tribute to George Bundy Smith, highlighting his commitment to social justice.

A Tribute To Hon. George Bundy Smith, William Michael Treanor

Fordham Urban Law Journal

Opening remarks at ceremony honoring Judge George Bundy Smith, including anecdotes from past students, an overview of Judge Smith's career and accomplishments, and a recognition of distinguished guests in the audience.

Separate And Obedient: The Judicial Qualification Missing From The Job Description, J. Amy Dillard

All Faculty Scholarship

The national debate about the role of judges, their qualifications and ideologies consumes news coverage, as evidenced by the recent appointment hearings of Chief Justice John Roberts and Justice Samuel Alito and the aborted nomination of Harriet Miers. The American Bar Association is in the process of re-evaluating and updating its Model Code of Judicial Conduct. The poverty of the quality of the debate, with legislators on both sides of the aisle discussing a few political issues and largely ignoring issues of ethics and temperament, leaves the public with little helpful information about whether judicial candidates will abide by the …

Diversity On The Bench And The Quest For Justice For All, Theresa M. Beiner

Law Faculty Scholarship

No abstract provided.

Judicial Performance Review: A Balance Between Judicial Independence And Public Accountability, Jean E. Dubofsky

Fordham Urban Law Journal

This article discusses judicial appointment and judicial independence in Colorado. The article argues that in Colorado, the independence of the judiciary needs to be protected, perhaps more than at any other time in the state’s history. While public accountability is important, it is achieved through the executive and legislative branches of the government. The courts function best if judges are free to decide each case without regard to how the general public might put a thumb on the scales of justice. To the degree that judicial performance commissions can protect judicial independence, while providing voters in retention elections with sufficient …

A Comparison Of The Criminal Appellate Decisions Of Appointed State Supreme Courts: Insights, Questions, And Implications For Judicial Independence, Aman L. Mcleod

Fordham Urban Law Journal

This Article presents the results of a study conducted to see whether state supreme courts selected in states with dissimilar appointment systems differ in the way they decide criminal appeals. Comparing the criminal decisions of courts selected with different appointment systems may also suggest something about how different appointment systems impact judicial independence.

What Makes A Good Appointive System For The Selection Of State Court Judges: The Vision Of The Symposium, Norman L. Greene

Fordham Urban Law Journal

This Article contains two parts. First, it sets forth the context of the symposium, including reflections on how judges are being selected now through the elective process, the need for a better approach to judicial selection, and the particular climate in New York at the time of the symposium and thereafter. The New York discussion will focus on the district court and Second Circuit decisions in Lopez Torres v. New York State Board of Elections, which exposed and struck down as unconstitutional New York’s scheme for selecting certain trial court judges, under which political party leaders dictated judicial selection. Second, …

Beyond Quality: First Principles In Judicial Selection And Their Application To A Commission-Based Selection System, Jeffrey D. Jackson

Fordham Urban Law Journal

This article discusses the principles that the judicial system should advance in the selection of its judges. In addition to judicial quality, there are five other “first principles” that should be advanced in an optimal selection system: independence, accountability, representativeness, legitimacy, and transparency.

How The Pickers Pick: Finding A Set Of Best Practices For Judicial Nominating Commissions, Rachel Paine Caufield

Fordham Urban Law Journal

This article discusses the history and development of judicial selection in the states. It examines the 'merit selection' system of judicial appointment and the role of nominating commissions. The article concludes with a section of recommendations for the best practices that should be formally written down and adopted by nominating commissions.

Rethinking Judicial Selection: A Critical Appraisal Of Appointive Selection For State Court Judges, John D. Feerick

Fordham Urban Law Journal

Transcript of the keynote address delivered at Fordham University School of law on April 7, 2006. The speaker discusses the various shortcomings in the judicial selection methodology in New York State and what he and others have thought of as solutions for the problems.

A View From The Ground: A Reform Group’S Perspective On The Ongoing Effort To Achieve Merit Selection Of Judges, Shira J. Goodman, Lynn A. Marks

Fordham Urban Law Journal

This article describes the history of judicial selection in the state of Pennsylvania. It describes the judicial selection reform movement and the growth of the organization Pennsylvanians for Modern Courts ("PMC") which devises solutions to meet the various challenges to judicial integrity in Pennsylvania. It focuses on the merit system that PMC has been trying to achieve for Pennsylvania's appellate courts.

On The Validity And Vitality Of Arizona’S Judicial Merit Selection System: Past, Present, And Future, Mark I. Harrison, Sara S. Greene, Keith Swisher, Meghan H. Grabel

Fordham Urban Law Journal

This Article demonstrates that merit selection is functioning commendably in Arizona and, for the most part, provides the public with a judicial selection process far more informative and generally superior to “traditional elections.” Part I of this Article sketches the history of Arizona’s merit selection of judges and its previous state-wide judicial election system. Part II discusses and analyzes attacks on merit selection and, in addition, assesses the effect of the Judicial Performance Review program initiated in 1992 to enhance the efficacy of the merit selection system. Finally, Part III describes the current status of merit selection in Arizona and …

Help Wanted: Is There A Better Way To Select Judges?, Luke Bierman

Fordham Urban Law Journal

This article gives an anecdotal account of the authors attempt to apply for a position as a State Court Judge that he saw posted in the newspaper. The article uses the job posting concept as a starting point to argue that the system of judicial appointment in New York needs to be reworked and there needs to be new and creative solutions brought into the discussion.

Enriching Judicial Independence: Seeking To Improve The Retention Vote Phase Of An Appointive Selection System, John F. Irwin, Daniel L. Real

Fordham Urban Law Journal

This article discusses the problems and potential solutions with the system of judicial appointment in the state of Nebraska. The article focuses on how improving public awareness about the existing system, its goals, and its current weaknesses, and implementing steps to address those weaknesses, will help to keep everyone moving toward the best possible system. While changing attitudes and interest in judicial retention elections is certainly not an easy task, it is only through seeking such change that reformers of an elective retention system can hope to near its potential effectiveness.

Designing An Appointive System: The Key Issues, G. Alan Tarr

Fordham Urban Law Journal

This article contains a selection of advice on how to improve the judicial selection system. The article explains that reconsideration of the judicial appointive systems must include both the broadly theoretical and the intensely practical. It should identify the key questions that must be addressed in creating a system of judicial appointment, elaborate and defend the principles that should guide choices among alternative appointive systems, and clarify how those principles can be translated into institutional arrangements that will advance the goal of a quality judiciary. This reconsideration should also take seriously the arguments and claims of those who oppose the …

Appointing Judges The European Way, Mary L. Volcansek

Fordham Urban Law Journal

This Article looks at methods of judicial selection in Europe as a way to contrast and perhaps better understand and improve the systems of judicial selection used in the United States. The article argues that in Europe, judicial independence is prized above and beyond any other possible positive trait. The democratic legitimacy of European judges derives from the intimate connection between democracy and the rule of law. Legitimacy does not attach, in the public eye, to a single political institution, but rather to the system as a whole.

Careful What You Wish For: Tough Questions, Honest Answers, And Innovative Approaches To Appointive Judicial Selection, Steven Zeidman

Fordham Urban Law Journal

This Essay, informed in significant part by personal experience, examines in greater detail some of the common features of appointive systems, and in the process raises issues, concerns, and questions. Every step of the way the goal remains the same—to devise an appointive system most likely to yield as outstanding a judiciary as possible.

A Cancer On The Republic: The Assault Upon Impartiality Of State Courts And The Challenge To Judicial Selection, Donald L. Burnett

Fordham Urban Law Journal

This Article examines judicial impartiality in the context of the state courts. Section I endeavors to show how impartial state courts are essential to fulfilling the constitutional guarantees of a republican form of government and of due process and equal protection of the law. Section II describes the current assault upon the impartiality of state courts, and Section III suggests several ways in which this cancer on the republic can be slowed or reversed—by specific actions within, or related to, the judicial selection process.