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Articles 31 - 60 of 99
Full-Text Articles in Judges
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Faculty Publications & Other Works
No abstract provided.
How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi
How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi
Faculty Scholarship
Richard Posner famously modeled judges as Bayesians in his book, How Judges Think? A key element of being Bayesian is that one constantly updates with new information. This model of the judge who is constantly learning and updating, particularly about local conditions, also is one of the reasons why the factual determinations of trial judges are given deference on appeal. But do judges in fact act like Bayesian updaters? Judicial evaluations of search warrant requests for probable cause provides an ideal setting to examine this question because the judges in this context have access to information on how well they …
Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg
Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg
Faculty Scholarship
The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of Justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique dataset of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the Justices …
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Faculty Scholarship
No abstract provided.
Antipodal Invective: A Field Gude To Kangaroos In American Courtrooms, Parker B. Potter Jr.
Antipodal Invective: A Field Gude To Kangaroos In American Courtrooms, Parker B. Potter Jr.
Akron Law Review
This article discusses three other groups of opinions that use the phrase “kangaroo court.” The first section describes the various decision-making behaviors that qualify a tribunal to wear the Scarlet K. It does so by discussing opinions in which a judge or a litigant has given a definition of the term “kangaroo court” when that term is used metaphorically, as invective, to disparage the fairness of another tribunal. The second section describes the habitat of adjudicatory kangaroos by examining opinions like Silver v. Castle Memorial Hospital, in which a judge has called another tribunal a kangaroo court. The third section …
Judge Posner's Simple Law, Mitchell N. Berman
Judge Posner's Simple Law, Mitchell N. Berman
Michigan Law Review
The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …
Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon
Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon
Marquette Law Review
This Essay highlights the evolving institutional changes in the federal judiciary—a protracted confirmation process, higher caseload demands, and declining real salaries—in concurrence with evidence suggesting greater reliance by judges on their law clerks when writing opinions. These dynamic forces arguably undermine the integrity of the judicial process and counsel for legislative action to address judicial working conditions or for changes by judges in the hiring of law clerks.
Dissent Aversion At The Court Of Justice Of The European Union, Marsha C. Erb
Dissent Aversion At The Court Of Justice Of The European Union, Marsha C. Erb
Duke Law Master of Judicial Studies Theses
The Court of Justice of the European Union has jurisdiction over 28 politically, culturally and linguistically disparate member states in the interpretation and application of EU law. Throughout its 60-year history, the Court has banned publication of the separate opinions of its judges and their voting records favouring instead brief unsigned unanimous decisions achieved by majority vote. The CJEU defends its practice in the interests of protecting judicial independence and its own authority and legitimacy. The Court’s critics call for greater transparency by publishing dissenting opinions along the lines of the United States Supreme Court. The CJEU is one of …
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick
Osgoode Hall Law Journal
This article poses the question: Now that women are receiving an increasing share of the seats on the Supreme Court of Canada (the Court), can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? The author looks at the assignment of reasons for judgment on the Court over the last three chief justiceships, with specific reference to the relative rate of assignments to male and female judges. He finds that the male/female gap is more robust than ever, although he also …
A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner
A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner
Faculty Scholarship
The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of …
Altering Attention In Adjudication, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Altering Attention In Adjudication, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Vanderbilt Law School Faculty Publications
Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when …
Judges Under Fire - Alj Independence At Issue, Debra Cassens Moss
Judges Under Fire - Alj Independence At Issue, Debra Cassens Moss
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
General Semantics, Stare Decisis And Change Through Considerations Of A New Ethics, Irene S. Ross
General Semantics, Stare Decisis And Change Through Considerations Of A New Ethics, Irene S. Ross
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Surviving The Politics Of Judging: National Association Of Adminsitrative Law Judges Luncheon Address, September 13, 1999 , Penny J. White
Surviving The Politics Of Judging: National Association Of Adminsitrative Law Judges Luncheon Address, September 13, 1999 , Penny J. White
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Ncalj Panel Discussion: Alj Decisions - Final Or Fallible?, Jim Flanagan, Jim Rossi, John Hardwicke, Tyrone T. Butler
Ncalj Panel Discussion: Alj Decisions - Final Or Fallible?, Jim Flanagan, Jim Rossi, John Hardwicke, Tyrone T. Butler
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Texas State Office Of Administrative Hearings: Establishing Independent Adjudicators In Contested Case Proceedings While Preserving The Power Of Institutional Decision-Making, Ron Beal
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Policymaking By The Administrative Judiciary , Charles H. Koch Jr.
Policymaking By The Administrative Judiciary , Charles H. Koch Jr.
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Accommodating Alj Decision Making Independence With Institutional Interests Of The Administrative Judiciary, Harold J. Krent, Lindsay Duvall
Accommodating Alj Decision Making Independence With Institutional Interests Of The Administrative Judiciary, Harold J. Krent, Lindsay Duvall
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Active Bar Membership October 15, 2007 Federal Administrative Law Judges: A Critique Of The "Active" Bar Membership Regulation , David J. Agatstein
Active Bar Membership October 15, 2007 Federal Administrative Law Judges: A Critique Of The "Active" Bar Membership Regulation , David J. Agatstein
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Precedent: What It Is And What It Isn't; When Do We Kiss It And When Do We Kill It?, Ruggero J. Aldisert
Precedent: What It Is And What It Isn't; When Do We Kiss It And When Do We Kill It?, Ruggero J. Aldisert
Pepperdine Law Review
No abstract provided.
How Well Do Measures Of Judicial Ability Translate Into Performance?, Mitu Gulati, Stephen J. Choi, Eric A. Posner
How Well Do Measures Of Judicial Ability Translate Into Performance?, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Faculty Scholarship
Diverse measures are used as proxies for judicial ability, ranging from the college and law school a judge attended to the rate at which her decisions are cited by other judges. Yet there has been little serious examination of which of these ability measures is better or worse at predicting the quality of judicial performance—including the management and disposition of cases. In this article, we attempt to evaluate these measures of ability by examining a rich group of performance indicators. Our innovation is to derive performance measures from judicial decisions other than case outcomes (which are inherently difficult to evaluate): …
Judicial Attention As A Scarce Resource: A Preliminary Defense Of How Judges Allocate Time Across Cases In The Federal Courts Of Appeals, Marin K. Levy
Faculty Scholarship
Federal appellate judges no longer have the time to hear argument and draft opinions in all of their cases. The average annual filing per active judgeship now stands at 330 filed cases per year — more than four times what it was sixty years ago. In response, judges have adopted case management strategies that effectively involve spending significantly less time on certain classes of cases than on others. Various scholars have decried this state of affairs, suggesting that the courts have created a “bifurcated” system of justice with “separate and unequal tracks.” These reformers propose altering the relevant constraints of …
The Politics Of Statutory Interpretation, Margaret H. Lemos
The Politics Of Statutory Interpretation, Margaret H. Lemos
Faculty Scholarship
In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …
Suboptimal Social Science And Judicial Precedent, Ben Grunwald
Suboptimal Social Science And Judicial Precedent, Ben Grunwald
Faculty Scholarship
No abstract provided.
Simplifying The Standard Of Review In North Carolina Administrative Appeals, Sarah H. Ludington
Simplifying The Standard Of Review In North Carolina Administrative Appeals, Sarah H. Ludington
Faculty Scholarship
No abstract provided.
The Emotionally Intelligent Judge, Terry A. Maroney
The Emotionally Intelligent Judge, Terry A. Maroney
Vanderbilt Law School Faculty Publications
Judges, like all of us, have been acculturated to an ideal of dispassion. But judges experience emotion on a regular basis. Judicial emotion must be managed competently. The psychology of emotion regulation can help judges learn to prepare realistically for, and respond thoughtfully to, the emotions they are bound to feel. This short piece, written for a judicial audience, synthesizes research that can help judges accept, analyze, and shape the emotional aspects of their work.
In The Absence Of Scrutiny: Narratives Of Probable Cause, Mitu Gulati, Jack Knight, David F. Levi
In The Absence Of Scrutiny: Narratives Of Probable Cause, Mitu Gulati, Jack Knight, David F. Levi
Faculty Scholarship
This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the "good faith" exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not …
Angry Judges, Terry A. Maroney
Angry Judges, Terry A. Maroney
Vanderbilt Law School Faculty Publications
Judges get angry. Law, however, is of two minds as to whether they should; more importantly, it is of two minds as to whether judges’ anger should influence their behavior and decision making. On the one hand, anger is the quintessentially judicial emotion. It involves appraisal of wrongdoing, attribution of blame, and assignment of punishment — precisely what we ask of judges. On the other, anger is associated with aggression, impulsivity, and irrationality. Aristotle, through his concept of virtue, proposed reconciling this conflict by asking whether a person is angry at the right people, for the right reasons, and in …
"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, Peter J. Mccormick
"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, Peter J. Mccormick
Osgoode Hall Law Journal
Appeal court judges do not just vote and run; they vote and then they explain, at length, why theirs is the most reasonable position. Since the core of explanation is persuasion, this means that between the initial conference vote and the final decision, some of the judges sometimes change their minds; and this in turn means that sometimes an initial majority becomes a minority and vice versa, something which often leaves clear footprints in the written record. This paper demonstrates that this happens more often than we might think—some 255 times for the last three Chief Justiceships, or roughly once …
The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick
The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick
Vanderbilt Law School Faculty Publications
Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent with …