Judges Commons^™

Asymmetric Normalcy, Deborah Pearlstein

Online Publications

Say what you will about sports metaphors in legal writing, but Professor Mark Tushnet’s “constitutional hardball” descriptor has proven remarkably useful in capturing one of the most vexing political dynamics of our time: the political parties’ resort to “claims and practice…that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with…the ‘go without saying’ assumptions that underpin working systems of constitutional government.”

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka

Washington and Lee Law Review

This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies more heavily on textualism during this period. At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute’s meaning as adapt a statute to contemporary circumstances.

Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.

William & Mary Law Review

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The …

Ensuring Justice Without "Beating The Deal", Sean P. Flynn

Notre Dame Law Review Reflection

In 1950 military justice changed drastically with the enactment of the Uniform Code of Military Justice (UCMJ). The UCMJ brought many protections to service members that were standard in civilian criminal practice, but there still existed differences between the two systems. Recent changes to the UCMJ eliminated more of those differences. The Joint Service Committee recommended further changes, which were accepted, to the way the military handles guilty pleas and plea agreements in the Rules for Courts-Martial (RCM), which govern the procedure and substance of courts-martial. The primary change discussed here is the removal of the military’s “beat the deal” …

Judge Douglas H. Ginsburg And Antitrust Law's Rule(S) Of Reason, Jonathan Baker, Andrew Gavil

Contributions to Books

This essay, written for a volume in honor of Judge Douglas H. Ginsburg, explores the evolution of the rule of reason and its development into a common structured, burden shifting approach guiding judicial decisions under Sections 1 and 2 of the Sherman Act and under Section 7 of the Clayton Act. It highlights the influential role that Judge Ginsburg and the Court of Appeals for the D.C. Circuit, on which he served, played in that evolution.

Rescuing Maryland Tort Law: A Tribute To Judge Sally Adkins, Donald G. Gifford

Faculty Scholarship

No abstract provided.

You’Re Fired! Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution & How To Fix Them, Linda D. Jellum

Articles

This Article explains why the for-cause removal provisions for ALJs are unconstitutional and offers three potential solutions to remedy this problem. Part I provides background information, which explains that the APA was a compromise of competing interests. Some wanted ALJs to be completely in-dependent from their agencies to further unbiased decision-making and inde-pendence, and others feared agencies would lose control over setting policy, should ALJs have such an independent function.Ultimately, Congress com-promised by including provisions to make the ALJs more independent, while also ensuring that agencies retained complete control to set policy.

As part of the independence piece of the …

Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich

Notre Dame Law Review

Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aversion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive …

Judicial Education, Private Violence, And Community Action: A Case Study In Legal Participatory Action Research, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

In this Article, I present a case study of a legal PAR project involving judicial training on best practices in domestic violence cases. This judicial education project started over coffee and waffles, involved an award-winning documentary film Private Violence, and resulted in the training of more than 375 judges on best practices developed from two years of collaborative research conducted by a community action group. In 2014, I coauthored an article titled It's Critical: Legal Participatory Action Research with my colleague Emily Houh. In this piece, we introduced legal scholars to the field of PAR, including its origins, complementary relationship …

When Peer Pressure Is Not Enough: Mandatory Disclosure And Third-Party Funding, Sarah Gilcrest

Arbitration Brief

No abstract provided.

Technology Assisted Review (Tar) Guidelines, Bolch Judicial Institute

Bolch Judicial Institute Publications

In the winter of 2016, more than 50 e-discovery experts volunteered to develop and draft guidelines providing guidance to the bench and bar on the use of technology assisted review (TAR).

This document explains the TAR process and offers “best practices,” which are intended to provide a protocol on whether and under what conditions TAR should be used. It provides a strong record and roadmap for the bench and bar, which explain and support the use of TAR in appropriate cases.

As with any group product of this nature, where some consensus must be reached, the drafters and other participants …

Are Administrative Law Judges Officers Of The State: Constitutional Considerations In The Selection And Tenure Of Administrative Law, Eric H. Miller

St. Thomas Law Review

One of the hallmarks of the Florida Administrative Procedure Act is the creation of a pool of hearing officers independent from any agency or the direct control of any political figure. Since its substantial revision in 1974, the statute has always provided for the selection and hiring of administrative law judges ("ALJ") by the Director of the Division of Administrative Hearings. ALJs hear almost every type of case, from licensure denials to environmental permitting challenges. In most cases, the ALJ weighs the evidence and legal arguments before recommending findings of fact, conclusions of law, and proposed final disposition to the …

Conference Report: Handling Allegations Of Corruption In Arbitration And Judicial Dispute Settlement, Adam Briscoe, Björn Arp

Arbitration Brief

No abstract provided.

Arbitrators' Authority: Scope And Limitations, Horacio A. Grigera Naón

Arbitration Brief

No abstract provided.

Visiting Judges, Marin K. Levy

Faculty Scholarship

Despite the fact that Article III judges hold particular seats on particular courts, the federal system rests on judicial interchangeability. Hundreds of judges “visit” other courts each year and collectively help decide thousands of appeals. Anyone from a retired Supreme Court Justice to a judge from the U.S. Court of International Trade to a district judge from out of circuit may come and hear cases on a given court of appeals. Although much has been written about the structure of the federal courts and the nature of Article III judgeships, little attention has been paid to the phenomenon of “sitting …

The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

(Un)Conscious Judging, Elizabeth Thornburg

Faculty Journal Articles and Book Chapters

Fact inferences made by the trial judge are the lynchpin of civil litigation. If inferences were a matter of universally held logical deductions, this would not be troubling. Inferences, however, are deeply contestable conclusions that vary from judge to judge. Non-conscious psychological phenomena can lead to flawed reasoning, implicit bias, and culturally influenced perceptions. Inferences differ significantly, and they matter. Given the homogeneous makeup of the judiciary, this is a significant concern.

This Article will demonstrate the ubiquity, importance, and variability of inferences by examining actual cases in which trial and appellate (or majority and dissenting) judges draw quite different …

Justice Anthony Kennedy As Senior Associate Justice: Influence And Impact, 53 Uic J. Marshall L. Rev. 907 (2019), Charles Jacob, Christopher Smith

UIC Law Review

No abstract provided.

New Metrics And The Politics Of Judicial Selection, Jeremy Kidd

Articles

Recent Supreme Court nomination hearings have become increasingly rancorous, revealing the increasing political importance of the judiciary in our system of government. We need to know more about those who are chosen to wield this power, but those being considered have strong incentives to obscure all but the most basic characteristics of integrity, decorum, intellect, and courtesy. One of the most important decisions in our democracy is therefore made with far less information than would be ideal. Only through development of new metrics and refinement of existing metrics can we begin to cut through obfuscation and identify the goals and …

Judicial Partisanship In A Partisan Era: A Reply To Professor Robertson, Dmitry Bam

Faculty Publications

Professor Cassandra Burke Robertson’s outstanding article, Judicial Impartiality in A Partisan Era, is timely given the increasing politicization of the judiciary. The political debate and controversy around the Judge Garland nomination and the Justice Kavanaugh confirmation to the United States Supreme Court, only served to reaffirm that the judiciary is not immune from the growing political polarization in America. And it is not just senate judicial confirmation battles that have become highly bitter and partisan. Scholars writing about the substantive work of the Court have argued that it is more akin to a political body than a judicial one, and …

Court Review: Journal Of The American Judges Association, Vol. 55, No. 3

Court Review: Journal of the American Judges Association

Court Review, the quarterly journal of the American Judges Association, invites the submission of unsolicited, original articles, essays, and book reviews. Court Review seeks to provide practical, useful information to the working judges of the United States and Canada. In each issue, we hope to provide information that will be of use to judges in their everyday work, whether in highlighting new procedures or methods of trial, court, or case management, providing substantive information regarding an area of law likely to be encountered by many judges, or by providing background information (such as psychology or other social science research) that …

Court Review: Journal Of The American Judges Association, Vol. 55, No. 3, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Civil Cases in the Supreme Court’s October 2018 Term by Todd E. Pettys

Do Judges’ Instructions about Eyewitnesses Really Work?: A 2019 Update by Christine M. McDermott and Monica K. Miller

Elected v. Appointed: Who Wins? Judicial Selection — Book Review/Q&A by David J. Dreyer

Editor’s Note

President’s Column

Crossword

Thoughts from Canada

The Resource Page

Fallen Woman Further (Re)Framed: Jewels And Travels, Tragedies And Secrets, Judge Hortense Norris, Mae Quinn

Journal Articles

No abstract provided.

Fallen Woman (Re) Frame: Judge Jean Hortense Norris, New York City - 1912-1955, Mae C. Quinn

Journal Articles

No abstract provided.

“You Can't Afford To Flinch In The Face Of Duty”: Judge William Augustus Bootle And The Desegregation Of The University Of Georgia, Patrick Emery Longan

Articles

On January 6, 1961, United States District Judge William Augustus Bootle granted a permanent injunction that required the University of Georgia to admit its first two black students, Hamilton E. Holmes and Charlayne A. Hunter. The backlash began immediately. Newspaper editorials condemned the decision. The Governor of Georgia threatened to close the University. Students rioted. A man escaped from an insane asylum, armed himself and went looking for Charlayne Hunter at her dormitory. Judge Bootle received numerous critical letters, including some that were threatening. Yet Judge Bootle’s attitude was that he did no more than what his position as a …

Emoluments And President Trump, John Mikhail

Valparaiso University Law Review

No abstract provided.

The Faith And Morals Of Justice Antonin Scalia, David Forte

Law Faculty Articles and Essays

It is because of Justice Scalia's suspicion of philosophy and of history that he becomes an outspoken textualist. But why should text carry greater authority? Why should the written word, rather than evolving tradition, be of higher authority, particularly to a Roman Catholic? To understand Antonin Scalia's affirmation of the centrality of text, we must, as many already have, seek to find out how the man viewed his religion and how he practiced it.

Doing Justice: Judging And Jewish Values, Judith Bartnoff

American University Law Review

No abstract provided.

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20^th century when this concept transitioned from an economic and property rights based approach to one …